
    J. Albert Amann, Respondent, v. James S. Kemper and Another, Appellants.
    Fourth Department,
    March 19, 1931.
    
      Oscar J. Brown, for the appellants.
    
      Jesse E. Kingsley, for the respondent.
   Per Curiam.

Plaintiff claimed that he was employed by defendents under a contract for a year and that he was Wrongfully discharged before it expired. Defendants claimed that at the time of the discharge plaintiff Was not working for them under a contract for a definite period and that plaintiff did not then claim to be employed otherwise than from month to month. Defendants further claimed that they paid plaintiff all that Was owing to him at the time of the discharge and a month’s salary besides. Upon the face of the check which defendants claim was given plaintiff as a final payment and afterwards cashed by him there appeared these words: In full payment of all amounts due and to become due.” Plaintiff testified that when defendants discharged him they gave him a check for what was then due and in addition $100 or $150 more, and told him to go out and look for other work, but he denied that the check then bore the notation claimed by defendants to have been written on its face. After the court had finished its charge to the jury, defendants’ attorney made the following request: And may I ask your Honor to say to the jury that if the plaintiff accepted the check, Exhibit 5, on August 15th in the form it is now, that he cannot recover,” which the court refused in the following words: I refuse to so charge, I will let it stand as I have given it to the jury.” The court had previously charged in effect that there being no dispute in the case as to the amount due at the time of the payment, there could be no accord and satisfaction. There was evidence, however, of a dispute as to the contract and the rights of the plaintiff after the date of the discharge. The subject-matter of the request had not, therefore, been correctly covered by the charge and its denial was error.

For these reasons the judgment should be reversed on the law and a new trial granted, with costs to the appellants to abide the event.

All concur. Present-—Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.

Judgment of County Court and judgment of Municipal Court reversed on the law and a new trial granted in the Municipal Court, with costs in all courts to the appellants to abide the event.  