
    Peric Margolies, Respondent, v. Max Ernst, Appellant.
    (Supreme Court, Appellate Term,
    June, 1901.)
    Pleading — Denial.
    Where an answer, interposed to an action brought for the breach of an oral contract to employ the plaintiff at a fixed compensation and for a fixed term, denies each and every allegation of the complaint except that the defendant employed the plaintiff, the period of employment is a material issue; and it is therefore erroneous for the court to charge the jury, at the request of the plaintiff, that “ There has been no denial of the contract on the pleadings ”.
    Margolies v. Ernst, 34 Mise. Eep. 832, reversed.
    Appeal from an affirmance by the General Term of the City Oourt of the city of Eew York of a judgment rendered in favor of the plaintiff at a Trial Term of said court. The first paragraph of the amended complaint in this action was as follows: “I. That on or about the 18th day of August, 1899, the above named plaintiff and the defendant herein, entered into an agreement, wherein and whereby, the said defendant, in consideration of this plaintiff entering into his employ and service, for the term and at the compensation hereinafter stated, agreed to employ and did employ the above named plaintiff, as a foreman in the said defendant’s pants factory, at No. 535 Broadway, in the city of New York, borough of Manhattan, for a term of one year, beginning from the above named date, at a salary of ten hundred and forty ($1040) dollars a year, payable in equal weekly payments of twenty ($20) dollars per week during said term, and said plaintiff, in consideration thereof, agreed to and did enter into the employ of the said defendant, for said term at said compensation as hereinbefore stated, and thereupon entered upon his service, and continued in said employment and service, until the 8th day of October, 1899.” The second paragraph alleged a wrongful discharge. The first paragraph of the answer was as follows: “I. Defendant admits that the above named plaintiff was employed in his factory at No. 535 Broadway, in the city of New York, borough of Manhattan, until the 8th day of October, 1899, but denies each and every allegation or parts of allegations contained in paragraph marked * I ’ of the first cause of action in plaintiff’s amended complaint contained.”
    Horwitz & Samuels (S. Livingston Samuels, of counsel), for appellant
    M. Feltenstein, for respondent.
   Per Curiam.

This action having been brought upon an oral contract of employment at a fixed compensation and for a fixed period, and all of the averments in the complaint having been denied in the answer except that the plaintiff was employed in defendant’s factory, the period of employment was certainly one of the material issues involved in the trial. In the main charge of the learned court no reference is made to this subject, but at plaintiff’s request the court charged in the following words: There has been no denial of the contract on, the pleadings.” This was manifestly error, and left to the jury only the question as to whether or not the affirmative defenses pleaded in the answer were established. It amounted to a statement by the court that the contract, as set forth in the complaint, was admitted, and, indeed, in view of some of the rulings upon evidence, there is good ground for the contention that this was the general theory of the case adopted by the learned trial court.

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

Present: Scott, P. J., Beach and Fitzgerald, JJ.

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