
    Walter H. Johnson, Appellant, v. American Drug and Press Association, Inc., Respondent.
   Order denying motion to set aside verdict reversed upon the law and a new trial granted, with costs to abide the event. The record does not show that the action commenced by the plaintiff against his employer by the mere service of a summons was either wanton or malicious, or that the fact of such service caused the employer any annoyance or embarrassment. Neither is there any evidence that the plaintiff was discharged because the summons was served. On the proof as it stood at the close of the plaintiff’s case, the defendant having offered no evidence was not entitled to have the question of justification for the discharge submitted to the jury. Rich, Manning and Young, JJ., concur; Kelly, P. J., and Jaycox, J., dissent.  