Opinion
July 24, 1906.
Isaac Allen [ Samuel Weinstein with him on the brief], for the appellant.
Samuel J. Goldsmith, for the respondents.
The plaintiff presents two causes of action, one on a contract of employment entered into February 4, 1905, and by its terms terminating September 4, 1905, for four weeks' wages at thirty-five dollars per week; the other, for a wrongful discharge in violation of a contract of employment for one year, entered into on the 25th day of July, 1905.
As to the second cause of action the evidence presents a question of fact whether the discharge was justified by the conduct of the plaintiff, and with the determination of that question we are not disposed to interfere, but it seems clear that the undisputed evidence respecting the first cause of action required a judgment for the plaintiff. It appeared that on the twenty-sixth day of June the building in which the plaintiff was employed burned. The defendants did not resume work until the twenty-fifth of July, at which time the new contract of employment for a year was entered into. There is no evidence, however, that the plaintiff's right to wages for the four weeks intervening had been waived by any express agreement between the parties, and the fire furnished no excuse for the defendants' failure to pay the sum stipulated. The plaintiff was employed as a designer and cutter, but there was no evidence that the labor was to be performed at any particular place or in any particular building. The defendants engaged absolutely to pay the plaintiff the sum of thirty-five dollars per week for a given period. It is undisputed that the plaintiff was at all times ready to perform the services for which he was employed. If the defendants desired to protect themselves from the result of accidents, they should have so stipulated in their contract. ( Harmony v. Bingham, 12 N.Y. 99.) Upon this state of the proof, we think it clear that the plaintiff was entitled to a judgment for the four weeks' wages at thirty-five dollars per week, and for this reason the judgment should be reversed and a new trial ordered, with costs to abide the event.
WOODWARD, JENKS and GAYNOR, JJ., concurred.
Judgment of the Municipal Court, so far as the same is upon the first cause of action, reversed, and new trial ordered, costs to abide the event; judgment of the Municipal Court, as to the second cause of action, affirmed, without costs.