
    Kelly v. Walton.
    (New York Common Pleas—Additional General Term,
    December, 1893.)
    Where, under a contract of employment, a servant may leave at any time, he is entitled to he paid for the exact time he works.
    'The determination of a trial justice upon facts involving a conflict of evidence will not be interfered with.
    In an action to recover wages as a waiter in defendant’s hotel, the question litigated was whether or not plaintiff was hired for a specified period. Upon conflicting evidence, the trial justice found that the plaintiff, under the contract of employment, could leave at any time of day he saw fit, and was entitled to be paid only for the time worked at the rate per month. Held, that the conclusion of the trial justice would not be interfered with.
    Appeal by the defendant from a judgment of the District Court in the city- of New York for the eighth judicial district in favor of the plaintiff.
    The opinion states the facts.
    
      Richard J. Morrison, for defendant (appellant).
    
      Robert Goeller, for plaintiff (respondent).
   Giegerich, J.

This action was brought by the plaintiff to recover eleven and one-half days’ wages alleged to have been -earned by him as a waiter in the defendant’s hotel. The ■defendant by his answer interposed a general denial. The principal question litigated upon the trial was whether or not the plaintiff was hired for a specified period of time. The plaintiff and his witnesses testified that he was not hired for ■any fixed period ; that he could leave the defendant’s employ ■at any time, and that he was entitled to compensation for the •exact number of days and hours he worked. The defendant .and his witnesses, on the other hand, testified that the plaintiff was hired by the month. The justice reached the conclusion “ that the waiters in the restaurant were paid at the rate of twenty-seven dollars per month, and that the head waiter could discharge them at any time or hour of the day he saw fit, and the waiters would only be paid for the exact time they worked, viz., so many days and so many hours, as the case might he, and that the waiters could leave at any time of the day or hour of the day that they saw fit, and would be paid only for the exact days and hours they worked, at and after the above rate per month.” We think that this conclusion is .amply sustained by the evidence.

Inasmuch as the plaintiff could leave the defendant’s employ at any time, the manner and circumstances under which he left it are, therefore, immaterial upon this appeal.

The only remaining grounds upon which the defendant seeks to reverse the judgment are those involving facts in respect whereof there is a conflict of evidence. We have repeatedly held that the finding of the justice will not be disturbed simply because there is a conflict of evidence (Lynes v. Hickey, 4 Misc. Rep. 522; 24 H. Y. Supp. 731; Weiss v. Strauss, 39 N. Y. St, Repr. 78; 14 N. Y. Supp. 776; Dempsey v. Paige, 4 E. D. Smith, 219), and, therefore, we will not interfere with the justice’s determination of the facts herein.

As we are satisfied, from a careful consideration of the evidence, that the decision of the justice was in all respects correct, the judgment should be affirmed, with costs.

Bischoff, J., concurs.

Judgment affirmed, with costs.  