Citation Numbers: 158 N.Y.S. 751
Judges: Cohalan
Filed Date: 5/4/1916
Status: Precedential
Modified Date: 10/17/2022
The trial court erred in finding and assuming a contract different from that alleged by the plaintiff, and which the latter sought to prove by his testimony. The court held that there was evidence that the defendant employed the plaintiff for the previous 1914-1915 season, and that the employment terminated in February, 1915, about the time that the oral agreement was made. This statement, however, ignores the allegations of the bill of particulars, and incorrectly restates the testimony. It assumed that the plaintiff was to be employed for a season, but everything in the case indicates that the period of employment was for six months, and the term did not end until the 1st day of April, 1916. The plaintiff, therefore, was limited in his proof to such a contract, and in fact sought to establish by his testimony no other agreement. Reed v. McConnell, 133 N. Y. 425, 31 N. E. 22; Tuthill v. Myrus, 57 App. Div. 37, 68 N. Y. Supp. 37. The only contract before the court was one which by its very terms was within the statute of frauds, and therefore void as to the plaintiff herein.
The judgment appealed from is reversed, with $30 costs, and judgment rendered for the defendant, dismissing the complaint on the merits, with costs. All concur.