Shimmel v. Erie Railway Co.

5 Daly 396

• Court: New York Court of Common Pleas
• Decided: June 15, 1874
• Status: Published

Opinion

Larremore, J.

The plaintiff, who was employed by the defendant as superintendent of the voucher and pay roll department, for which he was paid a stated salary, on the 12th of October, 1869, was employed by the vice-president of defendant to superintend and manage an electric advertising light, on the corner of Broadway and 23d street, in defendant’s building or office. The claim made is for extra services from 6 p. m. until midnight, and for which he was employed, and his compensation therefor was fixed at $100 per month. There is no allegation that the services were not performed or that the same were not for the benefit of the defendant.

Whether or not such services were included in plaintiff’s duties as superintendent of the voucher and pay roll department, was, under his testimony in explanation of the vouchers and receipts offered in.evidence, a question of fact for the jury.

The nonsuit was granted on the ground that Fisk, the vice-president of the defendant, had no authority to make said contract, and that defendant is not bound thereby. This, I think, was error. Fisk was a general officer of the Erie Bailway Co. He certified vouchers for services performed for it, which were accepted and paid. The electric light was used to examine baggage arriving at night on defendant’s line, and to illuminate their signs and advertisements on adjoining buildings. This fact was notorious.

There was evidence enough of the acceptance by the company of plaintiff’s extra and special services to put the defendant to proof, and the judgment of nonsuit should he reversed, and a new trial ordered, with costs to abide the event.

Robinson, J., concurred.

Ordered accordingly.