Whelan v. Ansonia Clock Co.

New York Supreme Court

Whelan v. Ansonia Clock Co.

34 N.Y. Sup. Ct. 557

DecidedSeptember 15, 1882

StatusPublished

This text of 34 N.Y. Sup. Ct. 557 (Whelan v. Ansonia Clock Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whelan v. Ansonia Clock Co., 34 N.Y. Sup. Ct. 557 (N.Y. Super. Ct. 1882).

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Opinion

Barnard, P. J.:

The title to the property upon which the plaintiff performed the labor he claims to recover for was always in the defendant. The cases were furnished to plaintiff to varnish at certain fixed prices. The work was done upon the defendant’s premises. The work was to be inspected and accepted before payment. While the work was in its usual condition, some finished and unaccepted and some unfinished, the premises burned down without any fault of plaintiff. The contract between plaintiff and defendant had no fixed time to run, and required no definite amount of work to be completed under it. Either party could terminate it at will. The cases are conflicting. The distinction between master and servant and independent contractors is sometimes very uncertain. An examination of the cases leads me to the conclusion in this ease that the relation of master and servant existed; that the servant’s compensation depended upon his completion of the work, but if the thing upon which the work is to be done is destroyed before completion, and while it is in defendant’s possession, such destruction excuses further performance and the plaintiff is entitled to recover for the proportionate value of the work done. The payment by the piece [559]*559was only a mode of determining the price of the servant’s wages. .The servant was ready to perform, but it was upon the condition that the defendant should furnish work and the place in which to perform it. He should not be deprived of the value of his work, under the circumstances of this case, because the premises were destroyed by fire, including the unfinished work.

Judgment affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.

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Barnard, P. J.:

The title to the property upon which the plaintiff performed the labor he claims to recover for was always in the defendant. The cases were furnished to plaintiff to varnish at certain fixed prices. The work was done upon the defendant’s premises. The work was to be inspected and accepted before payment. While the work was in its usual condition, some finished and unaccepted and some unfinished, the premises burned down without any fault of plaintiff. The contract between plaintiff and defendant had no fixed time to run, and required no definite amount of work to be completed under it. Either party could terminate it at will. The cases are conflicting. The distinction between master and servant and independent contractors is sometimes very uncertain. An examination of the cases leads me to the conclusion in this ease that the relation of master and servant existed; that the servant’s compensation depended upon his completion of the work, but if the thing upon which the work is to be done is destroyed before completion, and while it is in defendant’s possession, such destruction excuses further performance and the plaintiff is entitled to recover for the proportionate value of the work done. The payment by the piece [559]*559was only a mode of determining the price of the servant’s wages. .The servant was ready to perform, but it was upon the condition that the defendant should furnish work and the place in which to perform it. He should not be deprived of the value of his work, under the circumstances of this case, because the premises were destroyed by fire, including the unfinished work.

Judgment affirmed, with costs.

Dykman and Cullen, JJ., concurred.

Judgment and order denying new trial affirmed, with costs.

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Bluebook (online)

34 N.Y. Sup. Ct. 557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whelan-v-ansonia-clock-co-nysupct-1882.