
    Arkush v. Hanan et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    1. Master and Servant—Discharge of Employe—Evidence.
    In an action by an employe to recover damages for an alleged wrongful discharge, defendant is not confined to evidence of the cause of the discharge originally assigned, but may show that the discharge was justified by any sufficient cause.
    
      2. Appeal—Settlement op Case.
    Where the court "below disallows proposed amendments to a case, the controversy with regard to their subject-matter is ended, and they should not be added to the printed case on appeal, since the appellate court cannot consider the reasons actuating a judge in his allowance or disallowance of such amendments.
    Appeal from circuit court, New York county.
    Action by Samuel I. Arkush against James Hanan and another. .From an. order denying their motion for a new trial, and from an order directing that certain amendments, (which were disallowed,) together with an explanatory memorandum, and certain affidavits used in connection therewith, to be filed, added to the case, and printed with it, defendants appeal.
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    
      William J. Garner, for appellants. Hays & Greenbaum, (Samuel Greenbaum, of counsel,) for respondent.
   Barrett, J.

The order last referred to in the above statement should be reversed, and the entire supplement to the case, directed by this order to be printed, should be expunged from the record. With the disallowance of the proposed amendments, the controversy with regard to their subject-matter was ended. The appellate court has nothing to do with the reasons which actuate a judge in his allowance or disallowance of amendments to a proposed case, and such reasons cannot be considered upon the merits of an appeal from the judgment. As to the affidavits of the attorneys, they simply incumber the record. We must take the ease as settled, and that only, and dispose of the appeal upon the record as thus made up. We now come to the merits of the main appeals. The defendants are manufacturers of boots and shoes. Prior to the 14th of December, 1887, they decided to open a retail store, and on that day they entered into an agreement with the plaintiff whereby he was to act as superintendent of this retail store until the first day of February, 1891. In the latter part of December, 1888, the defendants discharged the plaintiff, and this action is because of that act. In their answer the defendants justified their discharge of the plaintiff upon three grounds: First, that he treated their customers in a rude and offensive manner, and spoke to them arbitrarily and disrespectfully, thereby injuring the business of the defendants; second, that he treated one Acton, a customer of the defendants, with especial rudeness, going so far in a dispute which he had with this person as to call him a cur, and to tell him to get out of the store; third, in refusing to give the defendants any explanation of his conduct in thus ill treating Acton. The case seems to have been tried upon the theory that because the defendants, in dealing with the plaintiff, specified this latter offense as the ground of discharge, they could not afterwards justify their act by showing other misconduct. This is not the rule which governs in actions of this character. In justifying the discharge, the defendants were not confined to the cause originally assigned. They could show that the discharge was justified by any sufficient cause. Harrington v. Bank, 1 Thomp. & C. 361, citing Cussons v. Skinner, 11 Mees. & W. 161; Ridgway v. Market Co., 3 Adol. & E. 171, and Baillie v. Kell, 4 Bing. N. C. 651; Green v. Edgar, 21 Hun, 414; Wood, Mast. &Serv. (2d Ed.) § 121. As was said by Littledale, J., in Ridgway v. Market Co., supra: “If a justifying cause exists, the master may assign it whenever the action is brought.” The case here turned entirely upon the right to discharge the plaintiff because of his refusal to explain why he had ill treated Acton. The defendants, however, offered to prove the misconduct specified in the first and second grounds above enumerated, but their testimony on these points was ruled out, and an exception duly taken. We think this was error. Without passing, therefore, upon the other questions presented, as to some of which we have serious doubts, the judgment and order denying a motion for a new trial should, for the error pointed out, be reversed, and a new trial granted, with costs to the appellants to abide the event. The order directing certain papers to be added to the case, and printed, should be reversed, with $10 costs, and the disbursements of printing the same. All concur.  