McCarthy v. Teale , 21 N.Y. St. Rep. 535 ( 1889 )

Pee Curiam.

This action is brought to recover a sum of money which the plaintiff alleges the defendant, while in his employ, wrongfully took and converted to his own use. The evidence tends to show, and the referee has found, that the defendant was engaged in the plaintiff’s service in the capacity of clerk and manager of his business (that of a crockery merchant) from September 26, 1879, to .February 29, 1884, at salaries fixed at different times by agreement, beginning with $40 per month, and ending with $1,200 a year; and that the defendant during this period of service had a right to draw the amount of such salary from time to time by taking the same from the money of the plaintiff, and charging himself with the amount so taken on his (the plaintiff’s) books. During the time of his employment he took on various occasions money and other things sufficient in amount to pay the sums due him, and no more, and charged himself therewith. There was a dispute between the parties as to the amount the defendant was to receive for his services; the plaintiff claiming it was less than the defendant insisted was to be paid him, and out of this disagreement the controversy arises. The referee found upon the trial with the defendant on this issue, and thereupon ordered judgment dismissing the complaint, with costs. The evidence, we think, justified this finding, and the same upon this question is conclusive. An examination of the several rulings adverse to the plaintiff does not satisfy us that any serious error was committed to his prejudice. Judgment affirmed, with costs.