Citation Numbers: 159 N.Y.S. 34
Judges: Guy
Filed Date: 5/22/1916
Status: Precedential
Modified Date: 10/17/2022
Plaintiff sued to recover damages for wrongful discharge. The complaint alleges that on or about January 6, 1914, plaintiff was employed by defendant for one year from January 1, 1914, and that he was discharged without cause May 7, 1914. The plaintiff’s testimony on his direct examination was that on the evening of January 5th he called at the place of business of the defendant; that the defendant offered plaintiff a contract; that plaintiff insisted upon getting a written contract; that defendant said, “If I call in a witness, would it be as satisfactory to you as a written contract?” and the plaintiff replied, “If you do, I am satisfied;” that defendant then called his cousin into the showroom as a witness, and the defendant said in the presence of the witness, “ T engage Mr. Crown [plaintiff] for a year from now on at $40 a week and 5 per cent, on children’s dresses, and if children’s dresses is discontinued he is entitled to 1 per cent, on the average business we will do.’ So I came in and started to work the following morning, January 6th.” The cross-examination shows the following:
“Q. Did you tell the jury you were to work for a year? A. Yes, sir; from January 5th. Q. You didn’t start until January 6th? A. January 5th we made the contract, and I started on the 6th. Q. You were to work from January 6, 1914? A. Yes, sir. Q. At $40 a week for a year? A. Yes, sir. * * * Q. Your week commenced Tuesday morning? A. Yes, sir. Q. And your year was commencing' Tuesday morning? A. Yes, sir. Q. And you were to work for one year from Tuesday, January 6, 1914, until January 6, 1915? A. Yes, sir.”
At the close of the plaintiff’s case on defendant’s motion the court dismissed the complaint upon the ground that, although the statute of frauds was not pleaded to the complaint, which did not disclose a case within the statute, it affirmatively appeared from the plaintiff’s evidence that the contract sued on was within the statute. Bierman v. Simon (Sup.) 110 N. Y. Supp. 267; Closson v. Thompson Pulp & Paper Co., 112 App. Div. 273, 97 N. Y. Supp, 1113.
*36 "As the plaintiff made two contradictory statements as to the date when tlui employment was to commence, there .was no more reason for accepting the version adverse to the plaintiff than there was for adopting the version favorable to the plaintiff. Moreover, the rule, which requires that upon a motion to dismiss the complaint the plaintiff is entitled to have the court adopt the view most favorable to the plaintiff, should have led to a denial of the motion to dismiss the complaint. Any ambiguity which existed in the plaintiff’s testimony should have been left to the jury for their determination.”
This case comes within the principle laid down in the Epstein Case, and the dismissal of the complaint was error.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.