Drew v. Mayor of New York

Davis, P. J.:

The court below committed no error in directing a verdict for the defendant. The plaintiff proved no express contract to pay him sixty dollars per month for his services as street-sweeper. He proved that in 1866 the common council passed a resolution fixing the compensation of sweepers employed in the markets at sixty dollars per month, and that in 1867 the then comptroller, Conolly, directed him to go to work as such sweeper, and that he was paid, for a certain period, at the rate of sixty dollars per month. This showed an implied contract to pay him at that rate. But the plaintiff further showed that he was subsequently paid at the rate of fifty dollars per month, and that, from month to month, for. the whole period covered by his claim in this suit, he signed monthly receipts contained in the pay roll of the bureau of markets, in which his wages were set down at $600 per annum for his services as sweeper, and acknowledging the receipt from the comptroller of fifty dollars in full payment for services rendei’ed by him in the capacity of sweeper for the period of the month embraced in each pay roll. This certainly overcame the presumption of a contract to pay sixty dollars for the same period, and showed, by strong inference at least, a contract for fifty dollars per month, or, rather, at $600 per annum, payable monthly. The plaintiff was an illiterate man, and signed the pay roll by making his mark, but he knew what amount of money he got, and that lie gave a monthly receipt, and he made no demand for more, but went on working, and receiving that sum, and signing such receipts during the whole several months covered by his complaint. His assent to the price and terms must be assumed, under such a state of facts, on the production of monthly receipts in full, each stating the rate of compensation per year, and the amount per month at such rate. The court was clearly right in directing a verdict upon such a state of facts.

The only other question is upon an exception to the exclusion of evidence. The plaintiff offered to show that during the time covered by the complaint he had a suit pending against defendant to recover a like balance of wages accruing prior to November, 1872.

This evidence was rightly rejected. It did not change the contents of the receipts given, nor tend to show that plaintiff acted under any mistake as to what he was doing in giving monthly receipts in full. On the contrary, it would tend to show that there was a dispute pending as to the amount of his claim, in full knowledge of which he gave and continued to sign and give the receipts in full at fifty dollars per month, and in that view he should be regarded as adjusting a disputed claim on the terms expressed in the pay roll and receipt.

His own previous declaration that he demanded a balance for former services was not competent, and that was all the fact that he had a suit pending for such services tended to prove in his behalf. His declaration touching such service was not admissible to counteract the effect of his receipts, or overcome the presumptions that legally arise from his subsequent transactions.

There are, in my opinion, no grounds for a new trial, and the motion must be denied, with costs.

DaNiels, J.:

I think that the exclusion of the evidence offered, to show that plaintiff had another action pending for a similar claim accruing before November, 1872, was proper.

If he made no agreement to receive sixty dollars a month he should have offered proof of that fact. The acceptance and receipt for the amount was strong evidence to the contrary. It was the adjustment of a disputed claim and for that reason binding.

A new trial should be denied.