Eastman v. Eastman & Manderville Co.

City of New York Municipal Court

Eastman v. Eastman & Manderville Co.

1 N.Y.S. 16, 1888 N.Y. Misc. LEXIS 1164

DecidedMay 28, 1888

StatusPublished

This text of 1 N.Y.S. 16 (Eastman v. Eastman & Manderville Co.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eastman v. Eastman & Manderville Co., 1 N.Y.S. 16, 1888 N.Y. Misc. LEXIS 1164 (N.Y. Super. Ct. 1888).

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Opinion

McGown, J.

Under above stipulation, the only exceptions to the ruling-of the presiding justice, and to refusals to charge, to be considered, are those contained in folios 35, 43, and 46. The uncontradicted testimony of the plaintiff, corroborated by the testimony of the defendant’s witness J. Cleve Eastman, shows that the plaintiff was employed by the defendant for one year ■ from June 6, 1887, at $1,200 per annum. This was a question of fact for the jury to pass upon, and was fully and fairly submitted to the jury, who • passed upon the same in favor of the plaintiff. The agreement of hiring was expressed and unqualified; and no provision was contained therein that such, agreement should terminate, or that defendant’s liability thereunder should cease, on the occurrence of a fire; and no such defense was set up in the an- • swer. It does not appear how or in what manner the fire was occasioned;. and, even had it appeared that the fire occurred by “the act of God,” the: [17]*17agreement of hiring was expressed and unqualified, and contained no provisions for the contingency of fire; and the destruction or damaging of defendant’s refinery by fire was no defense to the payment of plaintiff’s salary. The defendant, under the contract of employment of plaintiff, was entitled to plaintiff’s services for the entire period of his engagement, at any place defendant might select, within reasonable bounds; and plaintiff is entitled to be paid in accordance with the agreement, it not appearing that plaintiff was prevented rendering the services for which he was employed by any fault, neglect, or act on his part, or that he refused to render such services; on the contrary, the plaintiff, as it appears, was ready and willing to perform the agreement on his part, and offered his services, which were refused by the defendant. The defendant made no repairs, nor did it attempt to repair the portions of the buildings destroyed, so as to continue the business, and it does not appear that such could not have been done within a reasonable time; on the contrary, it appears by plaintiff’s uncontradicted evidence that “it (the buildings) could be put in shape in a very few days.” I find no errors in the rulings, in the charge, or refusals to charge, of the chief justice; and the judgment appealed from must therefore be affirmed, with costs.

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McGown, J.

Under above stipulation, the only exceptions to the ruling-of the presiding justice, and to refusals to charge, to be considered, are those contained in folios 35, 43, and 46. The uncontradicted testimony of the plaintiff, corroborated by the testimony of the defendant’s witness J. Cleve Eastman, shows that the plaintiff was employed by the defendant for one year ■ from June 6, 1887, at $1,200 per annum. This was a question of fact for the jury to pass upon, and was fully and fairly submitted to the jury, who • passed upon the same in favor of the plaintiff. The agreement of hiring was expressed and unqualified; and no provision was contained therein that such, agreement should terminate, or that defendant’s liability thereunder should cease, on the occurrence of a fire; and no such defense was set up in the an- • swer. It does not appear how or in what manner the fire was occasioned;. and, even had it appeared that the fire occurred by “the act of God,” the: [17]*17agreement of hiring was expressed and unqualified, and contained no provisions for the contingency of fire; and the destruction or damaging of defendant’s refinery by fire was no defense to the payment of plaintiff’s salary. The defendant, under the contract of employment of plaintiff, was entitled to plaintiff’s services for the entire period of his engagement, at any place defendant might select, within reasonable bounds; and plaintiff is entitled to be paid in accordance with the agreement, it not appearing that plaintiff was prevented rendering the services for which he was employed by any fault, neglect, or act on his part, or that he refused to render such services; on the contrary, the plaintiff, as it appears, was ready and willing to perform the agreement on his part, and offered his services, which were refused by the defendant. The defendant made no repairs, nor did it attempt to repair the portions of the buildings destroyed, so as to continue the business, and it does not appear that such could not have been done within a reasonable time; on the contrary, it appears by plaintiff’s uncontradicted evidence that “it (the buildings) could be put in shape in a very few days.” I find no errors in the rulings, in the charge, or refusals to charge, of the chief justice; and the judgment appealed from must therefore be affirmed, with costs.

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Bluebook (online)

1 N.Y.S. 16, 1888 N.Y. Misc. LEXIS 1164, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eastman-v-eastman-manderville-co-nynyccityct-1888.