
    Morris Siselman, Respondent, v. Harris Cohen et al., Appellants.
    (Supreme Court, Appellate Term,
    December, 1898.)
    Master and servant — Although the master has overlooked prior breaches of duty, he may discharge, having in view the whole course of conduct of the servant.
    In an action for a wrongful discharge where there was evidence that, although on the day prior to his discharge the plaintiff had neglected his work, the defendants did not then discharge him nor until a subsequent act of neglect on the next day, the court, at the request of the plaintiff, charged that “ if a contract of employment has been violated by an employee and the employer, with knowledge of such violation, retains him in his employ, that then the violation is not ground for a subsequent discharge ”.
    Held, that the charge was erroneous, the rule being that, where-violations of duty continue up to the time of discharge, the master-may overlook breaches, hoping for reformation, but, if disappointed, and the servant continues unfaithful, the master may act, in view off the whole course of conduct of the servant, in determining whether the contract of employment should be terminated.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, borough of Manhattan, third district.
    John Bogart, for appellants.
    Morris Hillkowitz, for respondent.
   Per Curiam.

This action was brought to recover damages for the wrongful discharge of the plaintiff from the service of the defendants. The cause was tried before the justice and a jury. The contention of the defendants was that the discharge was justified by the misconduct of the plaintiff. It is true that the testimony of the defendant Cohen as to what took place at the time of the alleged discharge is susceptible of a construction that there was no discharge, but that the plaintiff voluntarily abandoned his employment. We do not, however, think it material to consider this aspect of the proofs, in view of the fact that the justice in charging the jury stated the question to. be determined by them in the action to be whether there was a wrongful discharge of the plaintiff or not. ¡No exception was taken by the defendants’ attorney to the charge, nor did he ask the court to instruct the jury that they should also consider the question as to whether or not the plaintiff had voluntarily resigned his employment. The entire charge rested upon the assumption that the plaintiff had been discharged by the defendants, it being left to the jury, as we have said, to determine the facts from which it might be concluded, under the instructions of the judge upon the law of the case, whether or not the discharge was unlawful.

The plaintiff claims that on the 20th day of July, at about 5 o’clock in the afternoon, he became ill and unable to work; that he so informed the defendants, and with their assent, he left the shop and went home; that his illness continued during the forenoon of the following day, but that he returned at about noon, and on offering to resume his work was summarily discharged. The defendants give a different version of what took place, their claim being that he said nothing whatsoever about being ill, but left his work without any excuse whatsoever and without their permission; that he was not ill as he claimed, but occupied himself in looking after his personal matters during the entire time that he was absent. There was evidence in the case, which, if believed, was amply sufficient to support this contention.

There was proof tending to show that the plaintiff had been guilty of acts of insubordination and neglect of duty shortly preceding the date of his discharge, and it was doubtless with respect to this that the counsel for the plaintiff requested the justice below to. charge as he did, the following proposition: “ I ask the court to charge that if a contract of employment has been violated by an employee, and the employer, with knowledge of such violation, retains him in his employ, that then the violation is not ground for a subsequent discharge.” The jury might well have understood from the charge thus given that there had been a complete waiver of all previous misconduct, and that the action of the defendants in finally discharging the plaintiff was to be measured solely by the last act which preceded the discharge. There was evidence in the case on the part of the defendants tending to show that on the day before his dismissal the plaintiff was neglecting his work, and on being remonstrated with by one of the defendants for his neglect of duty, he stated that he did not want to work, and proceeded to light a cigar and to dance in the workroom. The defendant Warshawsky who related this incident, in which he was supported by another witness, was asked, on the trial, why he did not discharge the plaintiff at that time, and his reply was “ I thought he would do better.”

The law applicable to the question under review is clearly stated by Andrews, Ch. J., in the case of Gray v. Shepard, 147 N. Y. 177. At page 183, he says: The claim that the defendant, by retaining the plaintiff in his employment after knowledge of violations of duty, thereby condoned these offenses, and that they could not thereafter be used as grounds for discharge, is without force in view of the fact that his violations were committed from time to time, continuing until the discharge. The master may overlook breaches of duty in the servant, hoping for reformation; but, if he is disappointed and the servant continues his course of unfaithfulness, he may act, in view of his whole course of conduct, in determining whether the contract of employment should be terminated.”

Considering the state of the evidence in the case at bar, we think that the charge in question was erroneous and might well have influenced the verdict which was rendered in favor of the plaintiff, inasmuch as the jury might well have considered it as excluding from their consideration the evidence which was given with respect to the plaintiff’s conduct during the whole time of his employment, whereas the defendants were entitled to have it fully considered by them. The judgment must, therefore, be reversed.

Present: Beekman, P. J., Gildebsleeve and Giegebich, JJ.

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