
    SECOND DEPARTMENT,
    GENERAL TERM.
    Filed July 23, 1886.
    EDWIN M. SCOTT v. AUSTIN C. FITZPATRICK and Another.
    Contract of hiring — Conflict of evidence as to whether the hiring
    IS FOR ONE YEAR OR FOR ONE MONTH, ON TRIAL—CASE ONE SOLELY FOR JURY.
   Barnard P. J.

The only question is one of fact between the parties. The plaintiff testifies that on the first of January, 1883, the defendants employed him for one year at the rate of $900 per year," "besides his expenses, as a traveling salesman, and that he accepted the employment, and agreed to perform the services required for the period of the hiring. The defendant Fitzpatrick who is alleged to have made the contract, testifies that the employment was solely on trial and without any fixed period, at seventy-five dollars per month.

Fitzpatrick is supported in his evidence by the witness Curtis. Another witness for defendants Van Blencoe, gives evidence tending to show that the contract was for six months, and for the rest of the year if agreeable to both parties.

The testimony of Fitzpatrick is weakened by his letter to the plaintiff’s attorney, that the agreement was for six months. Under this state of the evidence the case was one solely for the jury. The verdict satisfied the trial judge, as he refused to set aside their verdict for the plaintiff.

There was no error in the rejection of the proof of the contents of the hook of Beard & Howels containing the sales of the plaintiff for defendants’ predecessors in business. The parties on the trial agree that it was stated that the hook in question did not show large profits made on such sales. The book would have shown the same thing; hut when the fact shown by the hook was taken for granted during the negotiations, the contents of the hook became immaterial.

The judgment should he affirmed, with costs.

Dykman and Cullen, JJ., concur.  