Wheaton v. Higgins

90 N.Y.S. 1041, 1904 N.Y. Misc. LEXIS 617

Opinion

PER CURIAM.

The testimony of the witness Wilmoth affords direct proof of the plaintiff’s employment by the defendants, but the recovery was excessive. Concededly, the plaintiff left the employment voluntarily about the middle of the second month of the period for which he sues, and, the employment being by the month, as he testifies, he was entitled to wages only for services for the full period. The nonpayment of wages for the prior month was not tantamount to a discharge, and the recovery should have been limited to the actual wages earned.

Judgment reversed, and new trial ordered, with costs to appellants to abide the event, unless respondent stipulates to reduce recovery to $40, in which event the judgment, so reduced, will be affirmed, without costs.