
    Edward Bruno, Resp’t, v. Augustin Walsh, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed October 20, 1893.)
    
    Servicics—Charge.
    In an action for services as janitor and engineer of a building at an alleged agreed price of $80 a month, the answer was a general denial, and also alleged that plaintiff was employed for the month in question at $00, and that he failed and neglected to perform his duties as such and by reason thereof defendant was compelled to employ another person to perform such duties at an expense of $15, which he asked to set off against any recovery. The evidence as to whether plaintiff performed fiis duties was-conflicting. The court charged that plaintiff, under all the circumstances, was entitled to a verdict, the only question being as to the-amount. Held, error; that the question of performance of the contract should have been submitted to the jury, and that the court by the charge took the whole question from them.
    Appeal from judgment in favor of plaintiff, entered on verdict.
    
      Michael Scanlon, for app’lt; Hector M. Hitchings, for resp’t.
   McCarthy, J.

It is idle in our judgment for the defendant to argue as to the authority for the employment of the plaintiff.

The evidence is clear and sufficient that Dage, who first employed the plaintiff, was a member of the firm of 0. H. Yoking & Sol, and that this firm was the agent of the defendant in regard to the premises in question.

It was also clear that the employment was approved of by the defendant.

A more serious question arises in' regard to the correctness of the judge’s charge.

The complaint is to recover a balance of $145, for services as an engineer and janitor, in taking charge of defendant’s premises, Nos. 8 and 5 East Eighty-fourth street, this city, at the agreed price of eighty dollars per month. The same ending for the month of June, 1892. The answer of the defendant after denying the allegations of the complaint sets up among other defenses the, following:

For a further and separate defense to this action, the defendant alleges, upon information and belief, that on or about the 1st day of June, 1892, the said Yoking, as agent as aforesaid, further hired and employed said plaintiff as engineer and janitor for said houses for the month of June, 1892, at the agreed salary or wages of sixty dollars for said month of June, 1892, but that the said plaintiff failed and neglected to perform his duties as such engineer and janitor during said month of June, 1892.

For a further and separate defense to this action and by way of counterclaim, the defendant alleges that during said month of June, 1892, and by reason of the failure of said plaintiff to perform his duties as engineer and janitor as aforesaid, the said defendant was obliged to and did employ another person to perform said duties, and was obliged to and did pay such other person the sum of fifteen dollars and twelve cents therefor, which amount the services performed by such other person, were reasonably worth, and which last mentioned sum the defendant hereby counterclaims and sets off against any sum which the said plaintiff may recover in this action.

Wherefore the said defendants demands that the said complaint be dismissed with costs.

Thus by his general denial the defendant compelled the plaintiff to first prove his whole- case, and by these other defenses referred to had the right to go to the jury on the question of performance either of the contract alleged by the plaintiff or the contract alleged by the defendant.

The contract being by the month and payable at the end of the month was entire, and the plaintiff in order to recover was bound to show a full and faithful performance of his duties as janitor and engineer.

Such performance was disputed and considerable evidence was given on both sides in regard to the same.

At the close of the case the judge charged the jury as follows:

Gentlemen of the jury:

Under the rulings Í have already made in this case, there is but one question for you to determine, and that is, is the plaintiff entitled to forty-five dollars or is he entitled to eighty dollars. The defendant claims that for the month of June there was a special agreement whereby plaintiff was to receive but sixty dollars, that subsequently as some repairs and cleaning were to be done, plaintiff agreed that defendant might employ a man to do the work and deduct from the sixty dollars such sum as he paid out, and that pursuant to such agreement he paid out fifteen dollars.

If you believe the story of the defendant then your verdict will be for the plaintiff in the sum of forty-five dollars.

The plaintiff, however, claims that there was never any such agreement or understanding, and that while it was suggested to him that he should remain for sixty dollars, he at all times insisted he could only remain for the amount he had originally agreed upon, which was eighty dollars a month.

This is the plaintiff’s contention, and if you believe it is the true statement, then your verdict must be for the plaintiff in the sum of eighty dollars.

Under all circumstances, therefore, the plaintiff is entitled to a verdict; and the only question is as to the amount, and I repeat, if you believe the defendant your verdict will be for forty-five dollars, and if you believe the plaintiff’s story it will be for eighty dollars. Plaintiff excepits to the statement of the court that the defendant testified that plaintiff agreed he might employ a man to do the repairs. The court: I did not so understand his testimony. It was to do the cleaning. Exception. Defendant’s counsel excepts to that part of the charge wherein it states that the plaintiff is entitled to a verdict under all circumstances.

This exception is sufficient to raise the question as to the correctness of the charge.

We think that the trial justice should have submitted to the-jury the question of the performance or non-performance of the contract, and that in the use of the words excepted to he had taken the whole question from them. They were the judges of the facts.

For these reasons judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ehrlich, Gh. J., concurs.  