
    Max Beiner, Appellant, v. Ludwig E. Goetz and Simon Ottinger, Respondents.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Evidence — weight of — action for wrongful discharge — verdict reinstated.
    Where, in an action for wrongful discharge of plaintiff employed by defendants as an expert designer, the question whether defendants were actually dissatisfied with plaintiff’s work or whether their expressed dissatisfaction, if any, was a mere subterfuge, was submitted to the jury on conflicting evidence, and there is nothing in the record to justify the opinion of the trial judge that a verdict rendered in plaintiff’s favor was against the weight of evidence to such an extent as to warrant the belief that the jury was improperly influenced by external considerations, and under the language of the contract of employment the defendants were not entitled to discharge plaintiff merely because they were dissatisfied with his work, an order setting aside the verdict as against the weight of evidence will be reversed and the verdict reinstated.
    Appeal by plaintiff from an order of the City Court of the city of New York, setting aside a verdict of the jury in favor of plaintiff, as against the weight of evidence.
    William Blau (Henry Kuntz and Abraham P. Wilkes, of counsel), for appellant.
    Robert C. Birkhahn, for respondents.
   Bijue, J.

This action was brought to recover for wrongful discharge under a contract of which the pertinent parts are as follows:

Whereas, said Beiner (plaintiff) represents himself to be an expert designer, competent to render the required services to the satisfaction of the said company,
“ Now, therefore * * * the parties agree
“ That the said company hires the services of the said Beiner for the purposes aforesaid at a salary of $60 per week, to commence on Oct." 16th, 1911 and to end Oct. 12th, 1912 * * *
‘ ‘ That the said Beiner, during the said term of employment, will render the services required of him in a satisfactory manner.”

Plaintiff’s evidence was that the defendants continuously and repeatedly expressed satisfaction with him, and his testimony is supported by an ‘ ‘ examiner ’ ’ of the defendants (a discharged employee), who says that hundreds of dresses were made up and sold by defendants from plaintiff’s designs. Defendants and their superintendent deny this, and also deny the conversation which plaintiff claims took place at the discharge, namely, that they expressed satisfaction with his work, but told him that he must reduce his salary to fifty dollars per week or else they would discharge him.

No serious impeachment resulted from the cross-examination, except that one of the defendants, who claimed that plaintiff’s designs were totally unsatis-factory, unskilled and merely copies of other designs, having been asked whether he was not familiar with plaintiff’s work at his previous employer’s, denied that he knew anything about it, and said that the man was employed on the recommendation of defendants ’ superintendent, although the superintendent had testified that he never knew the plaintiff until he was actually employed at defendants’ place.

The court submitted to the jury the question whether defendants were actually dissatisfied or whether their expressed dissatisfaction, if any, was a mere subterfuge, and the jury found in plaintiff’s favor.

I find nothing in the record to justify the evident opinion of the learned trial judge that the verdict was against the weight of evidence to such an extent as to warrant the belief that the jury was improperly influenced by external considerations. See Wagner v. H. Herrmann Lumber Co., 121 N. Y. Supp. 607. Moreover, although appellant’s counsel does not urge the question on this appeal, his exceptions to the charge clearly raise the point that under the language of this contract defendants were not entitled to discharge the plaintiff merely because they were dissatisfied with his work. In none of the leading cases on this subject has language of so dubious import as that in the contract in the case at bar been held to constitute an agreement on the part of the plaintiff to condition his employment upon the satisfaction of his employer, and I have, to say the least, serious doubt whether this contract should be so construed. See, for example, Crawford v. Mail & Express P. Co., 163 N. Y. 404; Ginsberg v. Friedman, 146 App. Div. 779; Diamond v. Mendelsohn, 156 id. 636; Haehnel v. Trostler, 54 Misc. Rep. 262-.

Seabuby and Page, JJ., concur.

Ordered reversed, with costs, and verdict reinstated, with costs.  