
    Thomas McDonald, Respondent, v. Henry Alexander, Appellant.
    (Supreme Court, Appellate Term,
    June, 1901.)
    Services — Evidence rebutting terms of alleged contract.
    Where an employee sues a contractor for his board and expenses under the latter’s alleged agreement that if the servant went away to the place of employment and worked for a few months only the contractor would pay his board and expenses but that if he went for a year he would not pay them as it was a long job, and the employee testifies upon the trial that the contractor asked him to go because he was hard up for men, the contractor is entitled to show under such an unusual contract that there was no dearth of workmen of the employee’s class and that he made no claim for board until after he was discharged.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, third district, borough of Manhattan.
    Horwitz & Samuels, for appellant.
    Thomas H. Smith, for respondent.
   Per Curiam.

The plaintiff was employed by the defendant, a contractor, to work at Oakdale, Long Island. His claim is for board and traveling expenses. His allegation is that when he was employed he refused to go unless he was paid board and expenses, and that defendant said: “If you go out there for a few months only I will pay your board and expenses, but if you go out for a year or more I will not, because it is a long job and will last over a year, but for a few months I will pay your board and expenses.”

The defendant and his superintendent flatly contradict the plaintiff and deny that any agreement whatever was made relative to board. The plaintiff testified that the defendant asked him to go because he was hard up for men. This was pertinent testimony, because it tended to throw some light upon the disputed question of fact, and, if true, explained in some degree why the defendant was willing to make such an unusual agreement. The defendant, by proper questions, sought to show that there was at the time no dearth of competent workmen of the plaintiff’s class. This evidence was excluded, and in this, error was committed. If there had been plenty of men available, the supposed reason for making the agreement vanished, and the probability that it was ever made was greatly lessened. One Tripp, who was the defendant’s foreman on the job, who paid the plaintiff his wages and discharged him, was asked when he first heard that the plaintiff made a claim for board. He should have been allowed to answer, because, if plaintiff had accepted his dismissal and his wages up to that time, and had made no claim for board until long afterwards, that circumstance would have had a strong bearing upon the probability of his story. If he, by reason of his discharge before the end of the year, became entitled to his board and traveling expenses, it would have been most natural that he should have said something about it or made some demand at the time of his discharge. The alleged contract was emphatically denied and was an unusual one for an employer to make, since it offered a premium to the workman not to stay out the full year, and, hence, everything tending to establish its probability or improbability was pertinent.

Judgment reversed and new trial granted, with costs to abide the event.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

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