
    (6 Misc. Rep. 152.)
    KELLY v. WALTON.
    (Common Pleas of New York City and County, General Term.
    December 4, 1893.)
    Adpeal—Conflicting Evidence.
    Findings of fact on conflicting evidence will not be disturbed on appeal.
    Appeal from eighth district court.
    Action by John Kelly against Frank T. Walton. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    Argued before BISCHOFF and GIEGERICH, JJ.
    Richard J. Morrison, for appellant.
    Robert Goeller, for respondent.
   GIEGERICH, J.

This action was brought by the plaintiff to recover 11£ 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 $27 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 be, 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 N. Y. Supp. 731; Weiss v. Strauss, [Com. Pl. N. Y.] 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.  