Colgan v. Aymar , 1 Hill & Den. 27 ( 1842 )

By the Court,

Cowen, J.

The question is whether the court below should have nonsuited the plaintiff on the ground that he had clearly failed to make out by his proof a case for the jury. The course taken by the defendants below, indicates that they had a considerable pecuniary interest in the work of the refinery going on; and were satisfied it could not continue without their personal interference. Whether they were satisfied that even more was required, viz., the pledging of their own responsibility, and therefore gave directions to employ hands with intent to become personally answerable, was, it seems to me, a proper question for the jury. The plaintiff probably continued his services in consequence of such directions. His master had become insane, and perhaps his payments would not have been kept up as usual; circumstances which the defendants themselves seem to have been aware must have resulted in the departure of hands and the consequent discontinuance of the business, unless prevented by a distinct retainer under their directions. It is said that the plaintiff" was alréady retained by Bevan. That did not necessarily prevent his going into the service of the defendants; nor necessarily preclude an intent on their part that he should. Suppose they had rer tained him in their commission business at New York, even in wrong of Bevan, their obligation to pay would not legally have been less for that reason. Their obligation was just the same, if they intended to transfer his service in the refinery from Bevan to themselves. In doing so, there was neither a legal nor moral impropriety under the circumstances, but the contrary; and the jury were, therefore, left more free to infer that it was intended. The defendants derived a pecuniary benefit and the plaintiff a loss by his remaining.

Judgment affirmed.