
    VON SERLEY v. MANN.
    (Supreme Court, Appellate Term.
    July 6, 1909.)
    Masteb and Sebvant (§ 80) — Contbact of Employment— Evidence—Sufficiency.
    In an action for services rendered pursuant to an alleged employment, evidence held not to sustain plaintiff's burden of proof.
    [Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 80.]
    MacLean, J., dissenting.
    Appeal from Municipal Court, Borough of Manhattan, Second District.
    Action by Louis Von Serley against Samuel Mann. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial ordered.
    Argued before GILDERSLEEVE, P. J., and MacLEAN and SEABURY, JJ.
    Samuel N. Freedman, for appellant.
    Samuel Manheimer, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   PER CURIAM.

The plaintiff testifies that he was employed by defendant, but that such employment was by conversation over the telephone. At the time of the telephonic communications plaintiff did not recognize the defendant’s voice, but testified that the person with whom he was talking said that he was “Mr. Mann.” Plaintiff also testifies that when he arrived at the place of business where he was to work he was engaged by the defendant at $25 per week as a musician; that he worked 10 days, which would amount to $30.75; and that he was paid $5 on account. The defendant denies the story of plaintiff, and testifies that he has no interest in the business, either as owner, manager, or otherwise; that he is .a butcher, and made only occasional visits to this café for the purpose of collecting bills. No other witnesses were called. It would seem that either party might have made the situation much clearer by calling witnesses to prove that the defendant did or did not have some interest in the business. We do not think the plaintiff has sustained the burden of proof, and the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

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

MacLEAN, J. (dissenting).

Aside from the evidence of any telephonic communication between the parties herein, as the plaintiff did not know by recognition of the voice to whom he was talking, the plaintiff, when .he went to the café where, as he claims, he was employed by the defendant to play, testified that the defendant engaged him at $25 a -week as a musician, and that he saw the defendant there every night giving orders to the help. The defendant denied all this even the communication by telephone, and asserted that he was never the owner of the restaurant on the southeast corner of Second avenue and--street, testifying that this café or coffee house was at Twelfth street and Second avenue. Employment was the crucial fact in the plaintiff’s claim, not ownership of the café or coffee house; the latter fact being merely a circumstance that might be helpful to or assist the trial justice in determining the fact of the contract of employment, which was thus sharply disputed. No reason appears for interference by this court with the determination of the trial justice upon the disputed question of employment, and the question of ownership of the premises appearing to be rather of the defendant’s defense and easily within his reach, as he testified he had been selling meat and collecting bills there for some length of time, failure to call or produce the owners or other witnesses to testify thereto may not be assigned as the unborne burden of the plaintiff.

The judgment herein should therefore bé affirmed.  