Daversa v. Davidow's Sons Co.

Appellate Terms of the Supreme Court of New York

Daversa v. Davidow's Sons Co.

89 Misc. 418, 151 N.Y.S. 872

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1915

StatusPublished

Cited by1 cases

This text of 89 Misc. 418 (Daversa v. Davidow's Sons Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Daversa v. Davidow's Sons Co., 89 Misc. 418, 151 N.Y.S. 872 (N.Y. Ct. App. 1915).

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Opinion

Guy, J.

This action was brought to recover for the alleged breach of a written contract whereby plaintiff was employed by defendant as a designer of women’s clothing at fifty dollars a week for the term of one year, plaintiff agreeing “ to devote all his time and attention to their business and to create up-to-date styles to the entire satisfaction of the said Wm. H. Davidow Sons Company.”

Plaintiff testified that one day, after he had entered into defendant’s employment under said written contract, he had a conversation with the president of the defendant company, in which he stated that he had been told the contract was no good and that he wanted a contract for a year, and that defendant’s president then agreed to an oral modification of the contract so as to make it a hiring for one year. Plaintiff then continued working for defendant for three weeks, when defendant’s president discharged him, stating that he was not satisfied with his work. Plaintiff, in his' cross-examination, admitted that defendant manufactured a better grade of goods than he had theretofore designed.

At the close of plaintiff’s case, defendant moved to dismiss the complaint, which motion was denied and an exception taken. The motion was renewed at the close of the entire case, and a motion was also made [420]*420for the direction of a verdict, which motions were then denied and no exception taken to such ruling. The denial of defendant’s motion to dismiss at the close of plaintiff’s case, as well as at the close of the entire case, was error.

The evidence, as introduced by plaintiff, of an oral modification of the written contract did not alter the provision of the contract that the services rendered thereunder were to be to the satisfaction of the defendant. The services to be performed by plaintiff under the contract, both as originally executed and as orally modified, involved the exercise of taste and skill as an expert designer, ánd the provision that the services rendered should be “to the entire satisfaction ” of the employer constituted the employer the sole judge thereof. See Crawford v. Mail & Express Publishing Co., 163 N. Y., 404, 407, 408; Diamond v. Mendelsohn, 156 App. Div. 636, 642, 643; Ginsberg v. Friedman, 146 id. 779, 781; Brown v. Retsof Mfg. Co., 127 id. 368, 371, 373; Fuller v. Downing, 120 id. 36, 42.

The cases distinguishing between honest dissatisfaction and mere subterfuge have no applicability to the facts of this case, there being no evidence upon which a jury could properly find want of'good faith on the part of the defendant.

Pendleton and Sheabn, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.

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Guy, J.

This action was brought to recover for the alleged breach of a written contract whereby plaintiff was employed by defendant as a designer of women’s clothing at fifty dollars a week for the term of one year, plaintiff agreeing “ to devote all his time and attention to their business and to create up-to-date styles to the entire satisfaction of the said Wm. H. Davidow Sons Company.”

Plaintiff testified that one day, after he had entered into defendant’s employment under said written contract, he had a conversation with the president of the defendant company, in which he stated that he had been told the contract was no good and that he wanted a contract for a year, and that defendant’s president then agreed to an oral modification of the contract so as to make it a hiring for one year. Plaintiff then continued working for defendant for three weeks, when defendant’s president discharged him, stating that he was not satisfied with his work. Plaintiff, in his' cross-examination, admitted that defendant manufactured a better grade of goods than he had theretofore designed.

At the close of plaintiff’s case, defendant moved to dismiss the complaint, which motion was denied and an exception taken. The motion was renewed at the close of the entire case, and a motion was also made [420]*420for the direction of a verdict, which motions were then denied and no exception taken to such ruling. The denial of defendant’s motion to dismiss at the close of plaintiff’s case, as well as at the close of the entire case, was error.

The evidence, as introduced by plaintiff, of an oral modification of the written contract did not alter the provision of the contract that the services rendered thereunder were to be to the satisfaction of the defendant. The services to be performed by plaintiff under the contract, both as originally executed and as orally modified, involved the exercise of taste and skill as an expert designer, ánd the provision that the services rendered should be “to the entire satisfaction ” of the employer constituted the employer the sole judge thereof. See Crawford v. Mail & Express Publishing Co., 163 N. Y., 404, 407, 408; Diamond v. Mendelsohn, 156 App. Div. 636, 642, 643; Ginsberg v. Friedman, 146 id. 779, 781; Brown v. Retsof Mfg. Co., 127 id. 368, 371, 373; Fuller v. Downing, 120 id. 36, 42.

The cases distinguishing between honest dissatisfaction and mere subterfuge have no applicability to the facts of this case, there being no evidence upon which a jury could properly find want of'good faith on the part of the defendant.

Pendleton and Sheabn, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.

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89 Misc. 418, 151 N.Y.S. 872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daversa-v-davidows-sons-co-nyappterm-1915.

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