
    Mensing v. Birnbaum
    (New York Common-Pleas—General Term,
    November, 1893.)
    In an action to recover damages for the alleged breach of a contract of employment, defendant denied the fact of employment. Held, that it was incumbent on plaintiff to establish it by sufficient evidence, and no jury trial having been asked for, a judgment for defendant, given by the trial justice upon a conflict of evidence, should stand.
    Appeal from a'judgment for défendant recovered in the District Court in the city of New York for the fourth judicial district.
    Action to recover damages for defendant’s alleged breach of a contract of employment with plaintiff’s assignor.
    
      Herbert J. Hindes, for plaintiff (appellant).
    
      Nathan S. Levy, for defendant (respondent).
   Bischoff, J.

Plaintiff sued as assignee of one Hampton, an actor, to recover damages for the alleged breach of a contract of employment to perform at defendant’s museum for one week, commencing May first, for seventy-five dollars, defendant having refused to receive the services on the day mentioned. The court below rendered judgment for defendant.

The contract of employment was denied by defendant, and it was thus incumbent upon plaintiff to establish it by sufficient evidence. Towards that end plaintiff proved that the contract was made with one Lyman, who assumed to act for defendant, and that Lyman claimed to act upon the instructions of Adams, defendant’s general manager and business agent. Lyman, called as a witness for plaintiff, testified that Adams instructed him to employ plaintiff’s assignor for one week, commencing May first, at seventy-five dollars. Adams, however, as a witness for defendant, deposed that he had not instructed Lyman, to employ plaintiff’s assignor, and, further, that he had only inquired of Lyman, who was engaged in the business of negotiating such contracts, to know if Hampton would be willing to accept an engagement at defendant’s museum for one Aveek at seventy-five dollars, leaving the date for the commencement of Hampton’s services to be agreed upon after Hampton’s willingness to make the contract had been ascertained. Hampton, also examined as a witness for plaintiff, sought to corroborate Lyman by testifying to an interview Avith Adams, at which the latter is alleged to have said that he had decided to postpone the time for the commencement of Hampton’s services to May eighth. Adams’ version of this interview, however, is to the effect that he told Hampton that he would engage him for one week commencing May eighth. Accepting Adams’ testimony as true, the facts do not Avarrant the interpretation that Lyman was authorized to conclude a contract for defendant with plaintiff’s assignor, and that Avhat passed between them was more than matter of mere preliminary negotiation ; and upon the conflict of evidence it was the province of the trial justice, no jury trial having been asked for, to determine the facts, and with his determination) of them adversely to-plaintiff we can discover no sufficient ground for our interference. In effect, the justice determined that Lyman was not instructed to enter into any contract whatever with plaintiff’s assignor on defendant’s behalf. Lyman’s assumption of authority did not operate to conclude defendant. The alleged contract upon which plaintiff sought to recover was, therefore, not shown ever to have had legal existence, and a judgment for defendant was the inevitable issue of the trial.

A further question which arises to refute plaintiff’s alleged right to recover in this action is whether, observing the rule delegatus non potest delegare, Adams, whose duty it was as-defendant’s agent to employ artists and others whose services-were required in defendant’s business, could effectually delegate the authority to do so to Lyman, the performance of such duty manifestly requiring the exercise of judgment and discretion. Broadway & Seventh Ave. R. R. Co. v. Metzger, 39 N. Y. St. Repr. 846; Carroll v. Tucker, 2 Misc. Rep. 397, 399. However, it is unnecessary to discuss the question,, since, as already stated, the judgment appealed from is unassailable upon the facts.

Judgment affirmed, with costs.

Giegrich, J., concurs.

Judgment affirmed.  