
    Charles Ginsberg, Respondent, v. Bernard Friedman, Appellant.
    First Department,
    November 3, 1911.
    Master and servant — contract of employment — performance to be to' satisfaction of master — breach — charge — excusing breach of duty.
    Where a contract employing one to design garments for women provided that the designs shall be at all times to the entire satisfaction of the employer, and that he shall be the sole judge thereof, he is entitled to discharge the employee if in fact dissatisfied with his work. It is error to allow the jury to determine whether he ought to have been satisfied if in fact his dissatisfaction was real and not assumed in order to rid himself of the employee.
    In an action by the employee for breach of said contract, it is error to refuse to charge that the master may overlook the breach of duty by the servant hoping'for reformation, but if disappointed and if the servant continues a course of unfaithfulness, the master may take into consideration his entire conduct in determining whether to discharge him.
    Appeal by the defendant, Bernard Friedman, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of November, 1910, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of January, 1910, upon the verdict of a jury, and also affirming an order of said City Court denying the defendant’s motion for a new trial made upon the minutes.
    
      Jacob Friedman, for the appellant.
    
      Jacob Manheim, for the respondent.
   Scott, J.:

The defendant appeals from a determination of the Appellate Term affirming a judgment of the City Court in favor of the plaintiff. .

The plaintiff was employed by defendant, under a written contract, as a designer, cutter, for specials, examiner and supervisor in a cloak and suit manufactory'.

The contract contained the following clause: It is expressly understood and agreed that the party of the second part shall design ladies’ and misses’ cloaks and suits, which shall at all times be to the entire satisfaction of the party of the-first part, and the party of the first part shall be the.sole judge thereof.” The contract was made in December, 1908, and by its terms was to continue until November 1, 1909. In June, 1909, the defendant became dissatisfied with the manner in which the plaintiff performed his work and discharged him. Early in June, 1909, defendant had found cause to complain of plaintiff’s work, and apparently contemplated discharging him then, but for one reason or another, continued his employment until later in the month. The case was tried much as it would have .been if the special clause quoted above had not been incorporated into it. That the defendant had become' dissatified with the manner in which the plaintiff performed his duties was made abundantly ’clear, but the court left it to the jury to say whether the facts justified such dissatisfaction. The language of the charge on this subject was: Such satisfaction does not' mean to satisfy every whim and caprice of his employer, but it is such satisfaction as would be reasonable to a person of the same class, under the same circumstances and in the same business, from his ordinary every day common sense in the conduct of his duties. If you should find that the defendant has convinced you by the greater weight of proof that the conduct of the plaintiff was such that he was justified, according to your standard of belief, in discharging him, then the case would terminate entirely upon that determination.” This was erroneous. By the terms of the contract the test of efficiency to which the plaintiff subjected himself was that his work should be performed to the entire satisfaction of the party of the first part,” and of this the defendant was made the sole judge. The only question to be determined was whether or not the defendant was in fact dissatisfied, and discharged the plaintiff for that reason. If his dissatisfaction was real, and not assumed merely to rid himself of his employee, it was of no consequence whether or not the jury thought that he ought to have been satisfied. (Crawford v. Mail & Express Publishing Co., 163 N. Y. 404.) It was also error to refuse to charge, at the request of defendant, that “ the master may overlook breaches of duty in the servant, hoping for reformation, but if he is disappointed • and the servant continues his course of unfaithfulness, the master may act in view of the entire course of conduct of the servant in determining whether the contract of employment should be terminated.” This request, and others along the same lines, were rendered especially pertinent by the action of -the court itself in the course of the trial in so interrogating the defendant as to lay emphasis upon the fact that he had continued plaintiff in his employ for a time after having found cause for dissatisfaction.

The determination of the Appellate Term and the judgment of the City Court must be reversed and a new trial granted, with costs to the appellant in all courts to abide the event.

Ingraham, P. J., Laughlin, Miller and Dowling, JJ., concurred. •

Determination and judgment reversed and new trial ordered, with costs to the appellant in this court and in the courts below to abide the event.  