
    Matthew Bannon, Appellant, v. Mary C. Habbis, Respondent.
    
      Action for services under a contract therefor—proof of what the plaintiff had, received for his services at other times is incompetent.
    
    In an action brought to recover for services alleged to have been rendered under a contract of hiring, made on' April 1, 1893, at the rate of seven dollars per month for an indefinite time^ the defendant, by her answer, admitted that the plaintiff worked for her for a few months in 1893, but alleged payment therefor, and denied all the rest of the complaint.
    
      Held, that the defendant was not entitled to show that in the winter of 1891 and 1892 the plaintiff earned no wages; that during each winter from 1892 to the time of the trial he had worked for his board and clothes only, and that from September, 1892, to April, 1893, he had worked for the defendant for that compensation, there being no suggestion as to the kind of work which the plaintiff had done for his board and clothes.
    Merwin, J., dissented.
    Appeal by the plaintiff, Matthew Bannon, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of the county of Saratoga on the 20th day of May, 1897, reversing a judgment in favor of the plaintiff rendered by a justice of the peace.
    The complaint in this action is for a balance due for services rendered under a contract of hiring, claimed to have been made April 1, 1893. The claim is that plaintiff was then hired at the rate of seven dollars jier month for all the time he worked for defendant, and that he worked under such hiring for thirteen months and eleven days.
    The answer admits that plaintiff worked for defendant a few months in the year 1893, denies all the rest of the complaint, and avers payment in full for the services rendered. The action was brought in a Justice’s Court, where judgment was rendered for the plaintiff. On appeal, the County Court reversed such judgment, and from such judgment of reversal this appeal is taken.
    
      J. M. Whitman, for the appellant.
    
      William S. Ostrander, for the respondent.
   Parker, P. J.:

Upon the trial plaintiff testified that he made a contract to work for defendant for seven dollars per month. He does not state that it was made for any definite time. He claimed, however, that lie worked under it for thirteen months and eleven days. On cross-examination he also testified that lie had lived with defendant from September, 1892, up to the time of the contract, and had, during such period, performed the same services. The defendant thereupon, by a series of questions and by offer, attempted to show tjiat during the winter of 1891 and 1892 plaintiff did not e„arn any wages; also that from September, 1892, to April, 1893, lie worked for defendant for his board and clothing; also that during every winter from 1892 to the time of the trial lie had been in the habit of working for his board and clothing only, during the winter time. All this evidence was excluded on the ground that it was not within the issue, and exception duly taken. It was for the exclusion of this evidence that the County Court reversed the justice’s judgment.

The general denial in defendant’s answer raised the question whether a contract of hiring of "any kind had been made between the parties. It did not suggest the precise question, afterwards raised by defendant’s testimony, that in April, 1893, a contract of hiring for seven dollars per month was made, but that by express terms such hiring ivas limited to the summer months only. If the single question as to whether the hiring was, by the terms of the contract, to continue at the same rate during the coining winter had been presented, it is possible that the fact that plaintiff had previously worked for her in the winters for his board and clothing would have been material as bearing on the probability of their respective statements ; but upon the broader question, as to whether any contract of hiring for the price of seven dollars per mouth had been made at all, I think that the evidence offered was immaterial. Concede that any fact tending to show that plaintiff could not earn the price claimed-was material, the fact that he did not earn wages during winter of 1891 and 1892 is no proof whatever that he could not have earned them in that year if he had desired to, much less that lie could not have earned them in the winter of 1893 and 1894. So the fact that, during the two winters subsequent to that of 1893 and 1894, he had in fact worked for his board and clothing does not at all indicate that he could not have earned at the rate of seven- dollars per month for the year beginning April, 1893. What kind of work he then did was not suggested, and it by no means follows that he was incapable of doing work worth seven dollars per month, because during those winters he was doing some sort of work somewhere for less. As to the winter of 1892 and 1893, when it is claimed he worked for defendant at the same kind of work for his board and clothing, even if it be material for the reason above suggested, the error, if any, in excluding it was cured by the defendant’s testimony that die did hire him during that period upon those precise terms. There is no contradiction of her evidence in that respect, and so it stood a conceded fact in the case. I am of the opinion that no reversible error was committed in the exclusion of such evidence.

It is now claimed by respondent that the judgment of the justice was not sustained by the evidence before him, and, therefore, should have been reversed.

The defendant undoubtedly had the greater number of witnesses and some very direct evidence on the question whether the hiring was for the summer months only, and whether the plaintiff continued to work any longer than that under the contract; but the fact that she paid him for his services very considerably more than he would have been entitled to, had the contract been as she claimed, was a significant fact in the case, and, considering it" in connection with the other evidence of the plaintiff, I am of the opinion that this is not a case where the judgment should be reversed as contrary to the weight of evidence.

The judgment of the County Court is reversed, and that of the justice is affirmed, with costs in the court below and of this appeal.

All concurred, except Merwin, J., dissenting.

Judgment of the County Court reversed, and that of the justice’s affirmed, with costs in the court below and of this appeal.  