
    Frank D. Mowbray, Appellant, v. Howard Gould, Respondent.
    
      Valet — intoxication is a sufficient ground for his discharge — it need not be set up in connection with a counterclaim — competency, in an action for wages, of conxersations between the xalet and his attorney.
    
    The complaint in an action brought to recover damages for the breach of a verbal contract, by which the defendant was alleged to have employed the plaintiff as a valet during the latter’s lifetime, averred.that from the time of the plaintiff’s employment until the time of his discharge he duly performed the duties of his employment, and that he was discharged without cause.
    The answer alleged, among other things, that the plaintiff, by reason of intoxication, had become unfitted to discharge the duties of his employment properly and efficiently, and was discharged for this reason by the defendant.
    
      Held, that (here was annexed to the contract of employment an implied condition that the plaintiff would properly conduct himself during its continuance;
    That his intoxication was a sufficient ground for his discharge;
    That it was not essential to the defendant’s right to avail himself of the defense of intoxication that such defense should be set up in connection with a counterclaim or set-off for damages resulting therefrom.
    
      Upon the trial it appeared that the plaintiff had written letters to the defendant which were inconsistent with his claim that his contract of employment was to extend during his life. In explanation of his conduct in this respect he testified that he was unaware that a verbal contract was binding until he was so advised by his counsel.
    
      Held, that it was improper to allow the plaintiff to state whether he, at any time, made a statement to the counsel, who so advised him, of the facts of his case, and also whether he told his counsel various other things.
    Appeal by the plaintiff, Frank D. Mowbray, from a judgment of the Supreme Court in favor'of the defendant, entered in the office of the clerk of the county of New York on the 26th day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      T. Darrington Semple, for the appellant.
    
      A. H. Hummel, for the respondent.
   Patterson, J.:

This is the second appeal in this action. On the first trial the plaintiff recovered a verdict, and the judgment entered thereon was reversed by this court. (63 App. Div. 158.) The action was to recover for the breach of a contract which the plaintiff alleged had been entered into between him and the defendant for the employment of the former as a valet during life. The answer denied the making of such contract, and by an amendment of that pleading allowed during the course of the second trial the defendant set up as a third and further defense that on the 15th of August, 1897, and at various times prior thereto, the plaintiff became unfitted properly and efficiently to discharge the duties of his employment as valet by reason of intoxication, and was, therefore, discharged by the defendant on the day named.

The plaintiff was the only person called as a witness on his behalf to prove the contract. The defendant denied that such contract ever was made and at the trial, in support of that denial, relied on letters written him by the plaintiff, which were entirely inconsistent with the claim made in the complaint. The jury rendered a general verdict for the defendant, and from the judgment entered thereon and from an order denying a motion for a new trial this appeal is taken.

The evidence on the subject of employment adduced at the second trial does not materially differ from that which appeared upon the record of the first trial. There are only two. matters now requiring consideration. The first is the contention of the plaintiff that, assuming a contract to have been made, as he alleges, his discharge and the reasons therefor were not properly pleaded — that they could not be availed of as a defense, unless the defendant set them up in connection with a counterclaim or set-off for damages resulting from the plaintiff’s alleged intoxication. It was argued that the cases of Pierce v. Tennessee Coal, etc., R. R. Co. (173 U. S. 1) and Schell v. Plumb (55 N. Y. 592) support that proposition. They do not apply. Here, the complaint states that from the time of the alleged employment of the plaintiff until the day of his discharge, he duly performed the duties of his employment and that he was discharged without cause. The answer, as amended, denies that allegation and sets up the specific reason for the discharge.

Even if it were assumed that there had been an employment such as the plaintiff testified to, there would be annexed to it the implied condition that he would properly conduct himself while in such employment. No different rule can be applied in this respect to a person employed under a contract for a long period than to one employed for a short term. There was convincing evidence to show that this plaintiff was frequently intoxicated before and was so intoxicated when he was discharged; and that is sufficient ground for discharging a servant. (Huntington v. Claflin, 10 Bosw. 262.)

The plaintiff further contends that he was entitled to give evidence explaining under what circumstances and for what reasons he wrote the letters above referred to as being inconsistent with the claim that the defendant had employed him for life. He was asked when and how it was he was first advised of his legal right to sue on a verbal contract. He was allowed to and did answer that it was toward the end of November, 1897. He also stated by whom he was so advised. He was then asked to state whether he made at any time a statement to the counsel, who so advised him, of the facts of his case. An objection to that question was properly sustained. The plaintiff could not be allowed to prove his case by testifying to what transpired between himself and his own counsel. He was also asked whether he told his counsel various things. That was also properly excluded, and certain argumentative questions were then asked, which were also properly excluded.

Assuming that the plaintiff had the right to show the circumstances under which the letters were written and why he did not refer to his contract therein, but took the attitude which would indicate that no contract relations existed between him and the defendant, then it appears from the record that he fully testified as to those matters upon his cross-examination. He was asked why, if he had the alleged life contract, he wrote to the defendant asking him to find employment and to excuse the liberty taken in writing, to which he answered, it was because he did not conceive that a verbal contract was binding according to law; that he did not know it until after he had brought suit; that he did not think a verbal contract was binding and that he did not know anything about it, until Mr. Semple came into the case; he then found that the life contract was binding according to law. He first learned from Mr. Semple that it was a life contract about a few days after he consulted with his attorney in the matter. He was asked to explain why he wrote almost all of the expressions contained in those letters and he answered fully. The questions put to him on his redirect examination and which were excluded, did not call for answers that would have added anything to the plaintiff’s explanations.

The judgment and order appealed from should be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Laughlin, JJ., concurred.

Judgment and order affirmed, with costs.  