Wilson v. Du Vievier

112 N.Y.S. 1108

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinion

PER CURIAM.

Complaining orally for “work, labor and services,” the plaintiff brought this action to recover for wages at $15 weekly, from April 1 to June 3, 1907, and for the week ending January 31, 1908, besides certain expenses. He admitted he had been paid for all the other weeks. The defendant answered also orally: “General denial. Bill of particulars.” At the outset of the trial he conceded the employment, and virtually amended his plea by alleging the plaintiff had been paid all that he had been entitled to receive. This, together with the testimony of the plaintiff, raised the issue of payment. In support of that, the defendant introduced in evidence, with other receipts, a statement of account, “Salary in full to Dec. 28/07, $15,” which was signed as “received in settlement in full of account” by the plaintiff. This evidence the plaintiff, called in rebuttal, did not contradict, nor did he allude to the testimony of the defendant’s bookkeeper that he had said “Yes,” to her statement on making out his voucher towards the end of January, “There is just one week’s salary due.” The judgment should be reversed.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.