
    Bruno v. Walsh.
    (City Court of New York—General Term,
    October, 1893.)
    In an action to recover a balance claimed to be for services under a contract of employment, the pleadings and evidence made it a question for the jury as to whether there had been a performance of the contract. Held, that a charge that plaintiff was entitled to a verdict, and the only question for them was its amount, was error, calling for a reversal of a judgment in favor of plaintiff
    
      Michael J. Scanlan, for defendant (appellant).
    
      Hector M. Hitchings, for plaintiff (respondent).
   McCarthy, J.

It is idle, in our judgment, for the defendant to argue as to the authority for the employment of the plaintiff. The evidence is clear and sufficient that Dage, who first employed the plaintiff, was a member of the firm of C. H. Yoking & Sol, and that this firm was the agent of the defendant in regard to the premises in question. It was also clear that the employment was approved of by the defendant.

A more serious question arises in regard to the. correctness of the judge’s charge.

The complaint is to recover a balance of forty-five dollars for services as an engineer and janitor in taking charge of defendant’s premises, Nos. 3 and 5 East Eighty-fourth street, this city, at the agreed price of eighty dollars per month, the same ending for the month of June, 1892. The answer of the defendant, after denying the allegations of the complaint, sets up, among other defenses, the following: For a further and separate defense to this action the defendant alleges, upon information and belief, that on or about the 1st day of June, 1892, the said Volzing, as agent as aforesaid, further hired and employed said plaintiff as engineer and janitor for said houses for the month of June, 1892, at the agreed salary or wages of sixty dollars for said month of June, 1892, but that the said plaintiff-failed and neglected to perform his duties as such engineer and janitor during said month of June, 1892.

For a further and separate defense to this action, and by way of counterclaim, the defendant alleges that during said month of June, 1892, and by reason of the failure of said plaintiff to perform his duties as engineer and janitor as aforesaid, the said defendant was obliged to and did employ another person to perform said duties, and was obliged to and did pay such other person the sum of fifteen dollars and twelve cents therefor, which amount the services performed by such other person were reasonably worth, and which last-mentioned sum the defendant hereby counterclaims and sets off against any sum which the said plaintiff may recover in this action. 'Wherefore, the said defendant demands that the said complaint be dismissed, with costs.

Then, by his general denial, the defendant compelled the plaintiff to first prove his whole case, and by these other defenses referred to, had the right to go to the jury on the question of performance, either of the contract alleged by the plaintiff, or the contract alleged by the defendant. The contract being by the month and payable at the end of the month, was entire, and the plaintiff in order to recover was bound to show a full and faithful performance of his duties as janitor and engineer.

Such performance was disputed and considerable evidence was given on both sides in regard to the same.

At the close of the case the judge charged the jury as follows:

Gentlemen of the Jury — Under the rulings I have already made in this case, there is but one question for you to determine, and that is, is the plaintiff entitled to forty-five dollars, or is he entitled to eighty dollars ? The defendant claims that for the month of June there was a special agreement whereby plaintiff was to receive but sixty dollars; that subsequently, as some repairs and cleaning were to be done, plaintiff agreed that defendant might employ a man to do the work and deduct from the sixty dollars such sum as he paid out, and that pursuant to such agreement he paid out fifteen dollars. If you believe the story of the defendant then your verdict will be for the plaintiff in the sum of forty-five dollars. The plaintiff, however, claims that there was never any such agreement or understanding, and that while it was suggested to him that he should remain for sixty dollars, he at all times insisted he could only remain for the amount he had originally agreed upon, which was eighty dollars a month. This is the plaintiff’s contention, and if you believe it is the true statement then your verdict must be for the plaintiff in the sum of eighty dollars. Under all circumstances, therefore, the plaintiff is entitled to a verdict, and the only question is as to the amount; and I repeat, if you believe the defendant your verdict will be for forty-five dollars, and if yon believe the plaintiff’s story it will be for eighty dollars. [Plaintiff excepts to-the statement of the court that the defendant testified that plaintiff agreed he might employ a man to do the repairs.]

“ The Court. — I did not so understand his testimony; it was to do the cleaning. [Exception. Defendant’s counsel excepts to that part of the charge wherein it states that the plaintiff is entitled to a verdict under all circumstances.] ”

This exception is sufficient to raise the question as to the correctness of the charge.

We think that the trial justice should have submitted to the jury the question of the performance or nonperformance of the contract, and that in the use of the words (excepted to) he had taken the whole question from them. They were the judges of the facts.

For these reasons judgment should be reversed and a new trial ordered, with costs to appellant to abide the event. .

Ehrlich, Ch. J., concurs.

Judgment reversed, new trial ordered.  