Von Serley v. Mann , 117 N.Y.S. 1033 ( 1909 )

PER CURIAM.

The plaintiff testifies that he was employed by defendant, but that such employment was by conversation over the telephone. At the time of the telephonic communications plaintiff did not recognize the defendant’s voice, but testified that the person with whom he was talking said that he was “Mr. Mann.” Plaintiff also testifies that when he arrived at the place of business where he was to work he was engaged by the defendant at $25 per week as a musician; that he worked 10 days, which would amount to $30.75; and that he was paid $5 on account. The defendant denies the story of plaintiff, and testifies that he has no interest in the business, either as owner, manager, or otherwise; that he is .a butcher, and made only occasional visits to this café for the purpose of collecting bills. No other witnesses were called. It would seem that either party might have made the situation much clearer by calling witnesses to prove that the defendant did or did not have some interest in the business. We do not think the plaintiff has sustained the burden of proof, and the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event.