Lewis v. Wise Shops, Inc.

Appellate Terms of the Supreme Court of New York

Lewis v. Wise Shops, Inc.

9 Misc. 2d 337, 164 N.Y.S.2d 348, 1957 N.Y. Misc. LEXIS 2793

Appellate Terms of the Supreme Court of New York·Decided June 27, 1957·Published

Opinion

Per Curiam.

Plaintiff alleged a contract made in January, 1955, for his employment by defendant for a term expiring December, 1955, for which he was to receive $200 a week, and an additional sum of $2,500 as a bonus under certain specific circumstances. This contract was entire and not severable. Accordingly, by limiting the question before the jury solely to whether or not there was a promise by defendant to pay plaintiff a bonus of $2,500, defendant was deprived of the opportunity of having the jury consider whether or not there was sufficient evidence to sustain the entire contract upon which plaintiff’s first cause of action is predicated.

Where a charge is wrong in its essential elements and goes on a distinctly wrong theory, reversal and a new trial is necessary to prevent a miscarriage of justice (Gales-Rojac Corp. v. Pennsylvania R. R. Co., 2 Misc 2d 613).

The judgment and order should be reversed and a new trial ordered, with $30 costs to appellant.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment and order reversed, etc.

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Per Curiam.

Plaintiff alleged a contract made in January, 1955, for his employment by defendant for a term expiring December, 1955, for which he was to receive $200 a week, and an additional sum of $2,500 as a bonus under certain specific circumstances. This contract was entire and not severable. Accordingly, by limiting the question before the jury solely to whether or not there was a promise by defendant to pay plaintiff a bonus of $2,500, defendant was deprived of the opportunity of having the jury consider whether or not there was sufficient evidence to sustain the entire contract upon which plaintiff’s first cause of action is predicated.

Where a charge is wrong in its essential elements and goes on a distinctly wrong theory, reversal and a new trial is necessary to prevent a miscarriage of justice (Gales-Rojac Corp. v. Pennsylvania R. R. Co., 2 Misc 2d 613).

The judgment and order should be reversed and a new trial ordered, with $30 costs to appellant.

Hecht, Aurelio and Tilzer, JJ., concur.

Judgment and order reversed, etc.

Lewis v. Wise Shops, Inc., 9 Misc. 2d 337, 164 N.Y.S.2d 348, 1957 N.Y. Misc. LEXIS 2793 (N.Y. Ct. App. 1957).

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Opinion

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