Cannon v. Fargo

150 N.Y.S. 1079

Opinion

PER CURIAM.

Under the principle declared in previous reversals (138 App. Div. 20, 122 N. Y. Supp. 576; 147 App. Div. 51, 131 N. Y. Supp. 643; 158 App. Div. 290, 142 N. Y. Supp. 1056), the present verdict for plaintiff cannot stand. In helping unload this express box, plaintiff was not aware that such assistance was any part of his duties, as he had sworn himself. Without exception on either side, the court on this trial charged “that Unless he [plaintiff] did it as a part of,his duty, knowing that it was a part of his duty, he cannot recover.” But plaintiff’s own testimony as to his knowledge and purpose required the court to reject a verdict for him on this issue. The judgment and order are therefore reversed_ on the law and on the facts, and as further trials cannot overcome plaintiff’s original testimony as to his own knowledge and purpose, final judgment is directed dismissing the complaint, with costs.