
    Samuel Morgenbesser, Respondent, v. Harry Levy, Appellant.
    (Supreme Court, Appellate Term,
    April, 1908.)
    Master and servant — Services and compensation — Actions for wages ■—Instructions — Effect of receipt.
    In an action upon an alleged contract of employment for eighteen weeks, where the plaintiff signed a receipt containing a printed statement to the effect that he was engaged by the week only, he is prima facie bound by the language; and it was error for the court to charge the jury that the mere fact that the receipt contained the clause did not bind the plaintiff, unless the clause was called to his attention or it was shown that he read it, and to refuse to charge, as requested by the defendant, that, in the absence of proof to the contrary, it was to be presumed the plaintiff knew what he was signing.
    
      Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury in the City Court of the city of Hew York and also from an order denying defendant’s motion for a new trial.
    Maurice B. Blumenthal, for appellant.
    Henry Kuntz, for respondent.
   Dayton, J.

Plaintiff claims a contract of employment for eighteen weeks. Prior to. his discharge he signed a receipt having printed thereon in small type the words: “ It is understood that I am engaged by the week only; ” but he offered no testimony to explain these receipts. The learned trial judge in charging the jury said: “ The mere fact that the receipts contain a clause in regard to the employment being limited to one week does not bind the plaintiff, unless such clause was called to his attention or unless it is shown by the evidence that the plaintiff read the clause.” This was excepted to. Defendant’s counsel requested the court to charge that: “ In the absence of proof to the contrary it is to be presumed that the plaintiff knew what he was signing.” The court said: “I will leave that to the jury.” The language charged constituted error. Prima facie, plaintiff was bound by the language of the receipt. He had the right to explain his act in signing it but did not do so. The jury, therefore, had no evidence dehors the receipts, and the presumption that the plaintiff knew what he was signing in the absence of evidence to the contrary was a matter of law for the court. True, the defendant testified that he hired “the first and second gang for the season and gave them the same receipt but the complaint alleges the specified employment of the plaintiff for a definite period. The answer is a general denial. "What defendant did with “ the gang ” was, therefore, outside the issues.

Gildersleevb and Sbabuby, JJ., concur.

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