
    Barnet Goldstein, Resp’t, v. Mary H. White et al., App’lts. Barnet Gurewitz, Resp’t, v. Mary H. White et al, App’lts. Hyman Ostrowsky, Resp’t, v. Mary H. White et al., App,lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed January 4, 1892.)
    
    1. Master and servant—Wages dependent on performance.
    Unless there is a special agreement to the contrary, work, whether measured by the job or by time, must be finished in order that there shall be a right to pay for it.
    
      % Same—Payment.
    Plaintiff denied having received his wages for the previous week, but defendant’s books, which were unimpeached, showed that he had been. paid up to the Saturday preceding his leaving, although it was the rule to. keep back a week’s wages as security for faithful performance of the work. Held, that the weight of evidence was on the side of defendants, and that a finding for plaintiff should be reversed.
    3. Same—Evidence.
    In an action to recover for piece work, it appeared that defendant had a system of checks which showed the amount of work each workman had on hand, and that the plaintiffs had a large quantity of work on hand the morning they left. Held, error to refuse to admit evidence as to how much they earned weekly, in order to show that such work was not completed when they left.
    Appeals from three separate judgments rendered in the district court of the city of New York for the fifth judicial district
    
      Julius Levy, for resp’ts; Luden B. Chase, for app’lts.
   Bookstaver, J.

three actions were made returnable at

the same time and all were for wages. The answers were the same in each case, consisting of a general denial and pleading payment and failure of the plaintiff to perform conditions precedent. By consent the three actions were tried as one. Defendants were makers and sellers of women’s clothes, doing business-under the name of White, Howard & Co. Plaintiff Goldstein was employed by them by the week, and sued for pay for a week, a day and a half, amounting in all to $24.50. The other two-plaintiffs were employed by the piece, and sue for work done, amounting in the case of Gurewitz to $46, and in the case of Ostrowsky to $37.

Unless there is a special agreement to the contrary, work, whether measured by the job, Cunningham v. Jones, 20 N. Y., 486; Smith v. Brady, 17 id., 173; Lawrence v. Miller, 86 id., 131, or by time, Waters v. Davies, 55 N. Y. Supr. Ct., 39; 8 St. Rep., 162, must be finished, in order that there shall be a right to. pay for it. In other words, there must be performance or a waiver of conditions precedent before there can be a right to-recovery. Phelan v. Mayor, 119 N. Y., 86; 28 St. Rep., 683; Avery v. Willson, 81 N. Y., 341. The plaintiff Goldstein admits in his testimony that he left in the middle of the week; consequently he could not recover anything for the portion of the week he worked, unless there was a waiver of further performance on .defendant’s part. This was attempted to be shown on plaintiff’s-part by some evidence to the effect that Mrs. White, one of the defendants, discharged them, but the testimony on the defendants’ behalf we think overwhelmingly confutes this, and shows that the real cause of the difficulty was an attempt to force the defendants to pay a disputed claim of another employee by leaving their employ in a body. As to the week’s wages prior to the week he left, it is true he denies having received it, but defendants’ books which weré in no wise impeached show that he was fully paid up to the Saturday preceding his leaving, and that, although it is a rule of the defendants to keep back one week’s wages as security for the faithful performance of the work by those employed by the week. This fact sharply called the attention of defendants’ witnesses to the fact of payment, and we fail to see how they could have testified to the payment without being guilty of both falsifying their employers’ books and committing perjury, neither of which are we willing to impute to them from anything appearing in the return.

The plaintiffs Gurewitz and Ostrowsky both swear that they had fully finished all the work given them' by the defendants before they left on a Tuesday noon. But the defendants had a system of tickets and a method of keeping accounts, by which it could be readily and accurately ascertained what work had been finished each day. Bach night the bookkeeper’s duty was to learn what had been finished by each piece-worker during the day, and write it with the date upon a ticket in the workman’s presence, and it is not probable that any workman would allow any error to pass uncorrected, as on its correctness depended his pay. All the tickets from the date of the last settlement in full with these two plaintiffs were offered in evidence on the trial, as were also the accounts between these parties. In addition to this, every Friday night the bookkeépér got from each piece-worker a list of work then unfinished in their hands. Such a list was made from information furnished by plaintiffs on Friday, April 17th, preceding Tuesday; April 21st, when they all left A comparison of the tickets, the accounts and these lists show that seven garments were unfinished, and in Ostrowsky’s hands, on the morning of Tuesday, the day he left, and that eight unfinished garments were in Grurewitz’ hands. It seems to us quite improbable that all of these garments could have been finished in half a day. Besides, several witnesses on defendants’ behalf positively testify that none of them were finished.

Defendants’ bookkeeper was asked to state what the plaintiffs had earned weekly while in defendants’ employment This was objected to by plaintiffs’ counsel, and the court sustained the objection. • We think this error in view of the extraordinary claim made by the two plaintiffs as to the work they must have done on Tuesday morning. The answer partly given shows that they must have accomplished more than three times the amount of work done in at least one week before, in half a day. Where, as in this case, it is uncertain which party should succeed, it was held in Strawbridge et al. v. Vandenburgh, 32 St. Rep., 493, that the court will reverse for slight errors, and we think that course should be followed in this case.

Judgments reversed and new trial ordered, with costs to appellants to abide the event

Bischoff, J., concurs.  