Scanlon v. H. B. Claflin Co.

25 N.Y.S. 1149, 6 Misc. 595, 56 N.Y. St. Rep. 344

Opinion

GIEGERICH, J.

The plaintiff’s evidence is insufficient to support his cause ■of action. It is conceded that the agreement as to extra compensation for the year 1889 was executed, but the testimony of the plaintiff with reference to the arrangement for the year 1890 fails, in our opinion, to establish a like contract for that year, or for the years following. This testimony is to the effect that defendant’s manager suggested that the extra compensation woyld be ■discontinued, and that there were “angry words,” but no renewal of the previous year’s agreement appears. Were it not for this admitted discord, a contract for similar compensation might be implied, but in the face of such disagreement it certainly would seem that the plaintiff did not justly rely upon any further compensation for his weekly work than his weekly wages; The ■case was insufficient at the time when plaintiff rested, and the error presented by the refusal to dismiss was not cured by evidence subsequently adduced. For these reasons the judgment should be reversed, and a new trial ■ordered, with costs to abide the event.