
    Scanlon v. Claflin Co.
    Master and servant — extra compensation — continuance of.
    Appeal by the defendant from a judgment of the District Court in the city of New York? for the first judicial district, rendered upon a trial before the justice thereof without a, jury.
    Action to recover balance of wages alleged to be due the plaintiff from the defendant.
    The opinion states the facts.
    
      Kneeland & Stewart, for defendant (appellant).
    
      Wm. J. A. Caffrey, for plaintiff (respondent).
   Giegerich, J.

The plaintiff’s evidence is insufficient to support his cause of action. It is conceded that the agreement as to extra compensation for the year 1889 was executed, but the testimony of the plaintiff with reference to the arrangement for the year 1890 fails, in our opinion, to establish a like contract0for that year or for the years following.

This testimony is to the effect that defendant’s manager suggested that the extra compensation would be discontinued and that there were angry words,” but no renewal of the previous year’s agreement appears. Were it not for this admitted discord a contract for similar compensation might be implied, but in the face of such disagreement it certainly would seem that the plaintiff did not justly rely upon any further compensation for his weekly work than his weekly wages. The ease was insufficient at the time when plaintiff rested and the error presented by the refusal to dismiss was not cured by evidence subsequently adduced.

For these reasons the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.

Judgment reversed, new trial ordered, costs to abide event.  