Austin v. Dewey

1 Hall 238

• Court: The Superior Court of New York City
• Decided: October 15, 1828
• Status: Published

Opinion

Oakley, J.

The defendant in error sued the plaintiff in error in the Marine Court, for his wages as a seaman on board the ship Savannah. The defence to the action rested on the ground, that the seaman had been guilty of disobedience of orders and mutinous conduct during the voyage, and that he had left the ship before the end of the voyage, without the permission of the captain.

It is not necessary to consider, whether any act of disobedience or mutiny, on the part of the plaintiff below, was proved, or whe- • ther such act, if proved, worked a forfeiture of his wages. It sufficiently appeared, from the evidence in the case, that after the vessel had arrived at New-York, the captain voluntarily discharged Dewey from the ship; that he expressed his regret that any difficulty had occurred during the voyage, and promised to pay him his wages. Such a promise by the captain, under the circumstances of the case, we think operates as a waiver of any forfeiture of wages by disobedience of orders, during the voyage. The court below appear to have rested their judgment on this view of the case. We think they were right, and that their judgment must be affirmed.

' Judgment affirmed.

[Ira Clizbe, Att'y for the deft, in error.]

[Henry M. Western, Att’y for the pl'ff in error.]