Dirringer v. Moynihan

New York Court of Common Pleas

Dirringer v. Moynihan

10 N.Y.S. 540, 32 N.Y. St. Rep. 693, 1890 N.Y. Misc. LEXIS 845

DecidedJuly 18, 1890

StatusPublished

This text of 10 N.Y.S. 540 (Dirringer v. Moynihan) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dirringer v. Moynihan, 10 N.Y.S. 540, 32 N.Y. St. Rep. 693, 1890 N.Y. Misc. LEXIS 845 (N.Y. Super. Ct. 1890).

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Opinion

Per Curiam.

We have carefully examined the evidence offered on the trial, and are convinced that, for some reason not clearly apparent, the jury were misled in rendering any judgment in plaintiff’s favor, for there is no proof that he was ever employed by the defendant. The utmost that can be claimed on the evidence is that plaintiff was orginally employed by a Mr. Smith, whom the defendant had engaged to look after the work, and see that it was done according to contract, or by one Spauman, who had contracted [541]*541either with Minto, the principal contractor, to do the mason work on a building then being erected by the defendant, or by Minto himself. It is uncontradicted that Smith had no right or authority to employ any one. His duty was simply to see that the work was done according to the contract between Minto and the defendant. It is also clear that neither Minto nor Smith originally employed the plaintiff. This was done by Spauman alone. The latter told plaintiff that Minto was the'contractor; that he was working for the owner, the defendant, by daywork; no price was at anytime agreed upon by any one; that plaintiff simply went to work under Spauman’s representations, and made no contract with any one else. He expressly testifies that he “never had any conversation with Minto, he never employed me;” consequently the only employment could have been by Spauman. But he was a subcontractor of Minto, and the latter had been fully paid by the defendant when he abandoned the work. Besides, no lien had been tiled against the building by the plaintiff. The fact that defendant gave plaintiff two dollars as a matter of charity cannot bind him to pay wages for which he had never contracted. As a matter of fact, Spauman ceased work when Minto abandoned the contract. If defendant at any time promised that he would see that Minto or Spauman would pay his workmen, it was without consideration, and a mere promise to pay the debt of another, and, not being in writing, was void. We therefore think the judgment should be reversed, with costs to appellant, under Curley v. Tomlinson, 5 Daly, 283.

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Per Curiam.

We have carefully examined the evidence offered on the trial, and are convinced that, for some reason not clearly apparent, the jury were misled in rendering any judgment in plaintiff’s favor, for there is no proof that he was ever employed by the defendant. The utmost that can be claimed on the evidence is that plaintiff was orginally employed by a Mr. Smith, whom the defendant had engaged to look after the work, and see that it was done according to contract, or by one Spauman, who had contracted [541]*541either with Minto, the principal contractor, to do the mason work on a building then being erected by the defendant, or by Minto himself. It is uncontradicted that Smith had no right or authority to employ any one. His duty was simply to see that the work was done according to the contract between Minto and the defendant. It is also clear that neither Minto nor Smith originally employed the plaintiff. This was done by Spauman alone. The latter told plaintiff that Minto was the'contractor; that he was working for the owner, the defendant, by daywork; no price was at anytime agreed upon by any one; that plaintiff simply went to work under Spauman’s representations, and made no contract with any one else. He expressly testifies that he “never had any conversation with Minto, he never employed me;” consequently the only employment could have been by Spauman. But he was a subcontractor of Minto, and the latter had been fully paid by the defendant when he abandoned the work. Besides, no lien had been tiled against the building by the plaintiff. The fact that defendant gave plaintiff two dollars as a matter of charity cannot bind him to pay wages for which he had never contracted. As a matter of fact, Spauman ceased work when Minto abandoned the contract. If defendant at any time promised that he would see that Minto or Spauman would pay his workmen, it was without consideration, and a mere promise to pay the debt of another, and, not being in writing, was void. We therefore think the judgment should be reversed, with costs to appellant, under Curley v. Tomlinson, 5 Daly, 283.

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Bluebook (online)

10 N.Y.S. 540, 32 N.Y. St. Rep. 693, 1890 N.Y. Misc. LEXIS 845, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dirringer-v-moynihan-nyctcompl-1890.

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