Weill v. Goodman, Shirt Waists

102 Misc. 524

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 15, 1918
• Status: Published

Opinions

Lehman, J.

The plaintiff was employed to audit and supervise the account books of the defendant for one year. It is undisputed that the plaintiff served the full year and kept the books for the defendant without any objection by defendant. He was not discharged by the defendant but left voluntarily and the defendant then refused to pay him the stipulated amount for his services claiming that the services had not been properly performed. The trial justice found that the services had been unskillfully and improperly performed but gave judgment in favor of the plaintiff. It seems to me that this judgment is entirely correct. The defendant had a right to discharge the plaintiff because of his unskillful work but retained him and permitted him to do the work until the end of the term. If the plaintiff’s services were unskillfully performed the defendant had a right to counterclaim for consequent damages, but since the contract called for continuous service on the part of the plaintiff and the plaintiff performed these services, even though unskillfully, and was guilty of no willfulbreach of the contract, of no dishonesty or unfaithfulness to his employer and the defendant accepted the plaintiff’s services I do not think that it can defeat the plaintiff’s cause of action except by alleging and proving a counterclaim for damages equal to the stipulated price for the services.

Judgment should therefore be affirmed, with twenty-five dollars costs.

Weeks, J., concurs.