
    Arthur E. Preyer, Resp’t, v. George R. Bidwell, App’lt.
    
      (New York Common Pleas, General Term
    
    
      Filed June 26, 1890.)
    
    1. Master and servant — Discharge—Immoral conduct.
    In an action for wrongful discharge the answer denied the allegation of a yearly hiring and justified the dismissal on account of neglect of duty and immoral conduct. In his testimony defendant stated that he dismissed plaintiff for neglect of duty. The court charged that immoral conduct of itself would not disqualify a man from being a good business man, but if it was displayed so as to be an injury or detriment to the business of the employer that would be a good ground for discharge, and refused to charge further on request. Held, no error.
    2. Same — Custom.
    To render a custom binding upon an employee actual knowledge of it must be shown. Such custom, if relied on, must form a part of the contract of employment or in some way be made known to the employee.
    Appeal by defendant from judgment entered on verdict of a jury, and from order denying motion for new trial on the minutes.
    The action is brought to recover for an alleged wrongful discharge. Plaintiff alleges a yearly hiring of his services from March 1,1887. Defendant cíenles the allegation of a yearly hiring and claims that the dismissal was justified by plaintiff’s neglect of duty, careless and unfaithful attention to his obligations, and by the fact'that plaintiff, while in defendant’s employ, made himself the associate of lewd women of the town, visited houses of prostitution, and during business hours, and to the detriment of defendant’s business, repeated and related to his co-employees the stories of plaintiff’s personal experience among such houses, and otherwise misconducted himself.
    The court charged that all an employer has a right to expect from his employees is fitness and capacity to discharge the duty and honesty of purpose in regard to that duty for which he was employed, and if he chooses to make the question of immorality a consideration, he should carefully investigate and satisfy himself
    
      upon that point before he engages the party. He further charged as follows:
    “ This question of immoral conduct, which seems to have been one of the grounds of the defense, was to the effect that the plaintiff used to relate stories to the employees, telling them lascivious stories about his own lascivious acts. You have heard the testimony. I let it come in because it was in the answer. A grave question might have arisen if a motion had been made to strike it out But you will, I think, readily understand that as to this lascivious conduct, that it of itself would not disqualify a man from being a good business man; but if it was displayed so as to be an injury or detriment to' the business of the employer, that would be a good ground for discharge; and for that reason I have declined to charge distinctly what I have been requested to charge, otherwise than I have charged.”
    Defendant’s counsel requested the court to charge as follows:
    “That the defendant has a right to expect the plaintiff to have and maintain a good moral character, and to conduct himself in a manner consistent' with good morals, while in the course of his employment; and that if the plaintiff did not so conduct himself, the discharge was justified, and the verdict must be for the defendant,” which the court declined to do except as charged.
    
      Isaac B. Potter, for app’lt; Charles H. Preyer, for resp’t.
   Per Curiam.

Ho just reason appears for disturbing the judgment in this case. The evidence as to the terms of the employment of plaintiff and the rate of Ms compensation was conflicting, and the alleged causes that led to the plaintiff’s discharge were fully controverted. These were the only issues in the action, and they were submitted'to the jury with proper instructions from the court, and there is ample evidence to support the finding of the jury upon all the issues raised.

The part of the charge of the court in regard tb the defense of immoral conduct, to which our attention has been called, is not, under the circumstances, open to criticism. Although this defense is pleaded in the answer, the defendant, in his testimony, has not assigned immoral conduct as one of the causes of the discharge. . He has given his testimony fully as to the causes which led him to discharge the plaintiff On his examination as a witness, he swore in regard to this matter as follows: “I discharged Mr. Preyer because I had found to my own satisfaction that he neglected my business; he was late in the morning; he would leave the store earlier in the evening than he should; I also learned that he had been lending my property, for which he received benefit only to himself; I found he only spent an hour or two on the last Sunday he was there, and he left in the store a boy who was not familiar with the business, and on those grounds I discharged him.

“ Q. Were there any other reasons, particularly any other times; did you have a memorandum of any of those acts ? A. Yes, sir; upon several occasions I satisfied myself by observing that he was not attending to my business, and one particular evening was Tuesday, September 6th; it was his regular night at the store; he left the store at half-past five to go to supper, and he returned at half-past seven and stayed at the store; at a quarter after eight he left for the evening and did not return.”

It must be assumed that the court, in making the remark complained of in the charge, had in view the testimony of the defendant, and the fact that immoral conduct was not claimed by him in his testimony as a ground of discharge. But even if the defendant had testified differently, and had assigned this as a, cause of discharge, we think the court charged the jury fully, fairly and correctly on this subject.

An exception was taken to the exclusion of a question asked by the defendant’s counsel in regard to the custom-of the defendant’s establishment as to making tickets when a bicycle was let. To render a custom binding upon an employee, actual knowledge of it must be shown. Such custom, if it is relied on as such, must form a part of the contract of employment, or in some way be made known to the employee. But the defendant could not have been prejudiced in any way by the ruling of the court upon this question, for the reason that he testified that he gave to the plaintiff special directions in regard to his duties and instructed him as to making cash or credit tickets for the bicycles which were loaned.

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

Daly, Allen and Bischoff, JJ., concur.  