
    Mortimer M. Klein, Respondent, v. Irving Sarnoff, Appellant.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Evidence — in rebuttal — materiality of—reopening of case to supply omission of proof.
    Where plaintiff, on the trial of an action for breach of a contract of employment, testifies in rebuttal to facts the materiality of which was not questioned and which tended to impair the defense, defendant is entitled as matter of right to offer testimony in contradiction.
    Where no rights of his adversary can by any possibility be prejudiced, a party in the exercise of judicial discretion should be allowed to reopen his case to supply an omission of proof which occurred through oversight.
    
      Appeal by defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff after a trial by the court and a jury.
    Goldfogle, Cohn & Lind (Alfred D. Lind, of counsel), for appellant.
    Feltenstein & Rosenstein (Moses Feltenstein and Abraham Rosenstein, of counsel), for respondent.
   Bijur, J.

The action was brought for damages for an alleged breach of a written contract of employment. Defendant claimed that plaintiff had been discharged because of failure to perform certain of his duties, namely, the ‘ ‘ window-dressing ’ ’ of certain of defendant’s stores. Plaintiff, in “ rebuttal ” testified to three new items of fact, the materiality of which was not questioned at the trial and which tended to impair the defense. He testified that prior to his discharge he had had a conversation with defendant who told him that “We are not making money. We ought to try and reduce expenses.” This testimony was manifestly intended to throw doubt upon the good faith of defendant’s claim that he had discharged defendant solely for failure to attend to his duties. Plaintiff also testified in substance that he was employed not merely as a window dresser, but in order to impart to defendant his knowledge of what was called the “ dollar and a half hat business.” The plain purport of this evidence was the same as the items first above mentioned, namely, to indicate that after defendant had learned what he desired from plaintiff he discharged plaintiff, not for failure to perform his duties, but because he had obtained from him all that he wanted. Plaintiff also testified that among his duties was the hiring and discharging of employees, and he mentioned one whom he had hired. He also testified that he had duly performed his duties in regard to two stores other than those mentioned in defendant’s direct evidence. It is quite clear that defendant was entitled, as matter of right, to meet this new matter brought out by plaintiff by evidence which he offered in direct contradiction of plaintiff’s testimony, but he was denied the right to introduce such new evidence by the court, below either as a matter of right or as a matter of discretion. He was also denied the right, after the case bad been technically “ closed,” to supply an omission which occurred through his oversight, namely, proof that the plaintiff had received a bonus of $250, which was more or less involved in the issues at the trial. It is scarcely necessary to cite an authority for the rule that in the exercise of a wise discretion, where no rights of the opposite party can by any possibility be prejudiced thereby, a party should be allowed to reopen the case to supply such omission, particularly before any step has been taken to submit the case to the jury. The case of Howard v. Bank of Metropolis, 104 App. Div. 534, 536, is, however, illuminating on this subject.

Seabury and Guy, JJ., concur.

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