THE

NEW YORK SUPPLEMENT

VOLUME 153

NATELSON v. GOTTLIEB et al.

(Supreme Court, Appellate Term, First Department. May 13, 1915.)

MASTER AND SERVANT 73-NEGLECT OF SERVANT-WAIVER.

Defendants, who, when they gave their checks in payment of a salesman's weekly salary, believed or knew that he had absented himself from their factory and office without permission, in violation of his contract, thereby waived the salesman's performance of his contract, and could not defend an action by his assignee on that ground.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 90102; Dec. Dig. 73.]

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Louis Natelson against Lawrence B. Gottlieb and Jacob J. Gottlieb, copartners in business under the firm name and style of the Mercantile Embroidery Works. From a judgment for defendants, plaintiff appeals. Reversed, and new trial ordered.

Argued April term, 1915, before GUY, BIJUR, and PENDLETON, JJ.

Myers & Goldsmith, of New York City (Gordon S. P. Kleeberg, of New York City, of counsel), for appellant.

Simon Rasch, of New York City (Jacob B. Eiseman, of Brooklyn, of counsel), for respondents.

GUY, J. In defense to this action by payee's assignee of two checks, for $50 each, the makers set up that prior to and during the month of August, 1914, the payee, Robinson, was in their employ as salesman; that by the terms of his employment the plaintiff's assignor agreed to devote all his time and attention to the duties pertaining to said employment, and not to absent himself therefrom without the leave of the defendants; that in violation of his agreement he did absent himself from, and failed to discharge, his duties during the last two weeks of August, 1914; and that at the time the checks were given the defendants were ignorant of the fact that he had violated his contract. One of the checks, dated August 26th, was for salary for the week ending

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August 22d; the other, dated August 29th, was for the week ending on that date.

Defendants' evidence showed that in August, 1914, the plaintiff's assignor, in continuance of prior contracts with the defendants, beginning in August, 1909, was, under a yearly hiring terminating August 31, 1914, employed as a salesman and assistant in the management of their factory, and in designing and also in the purchasing of raw materials, for which the agreed compensation was a commission of 2 per cent. and $50 per week; that at some time not later than August 31, 1914, he and the plaintiff took over the factory of one Meyer, who was engaged in the same line of business as the defendants; that plaintiff's assignor was at Meyer's place of business three or four times during August; that on August 26th, and on other occasions before September 1st, he was at a law office with Meyer about half an hour each time, arranging for the sale or lease of Meyer's factory; and that when he called at Meyer's factory or place of business it was about noontime. August 30th fell on Sunday, and for August 31st, the last day of the term of Robinson's employment, he neither asked nor received any compensation.

It further appears that the defendants had their factory in New Jersey and an office in the borough of Manhattan; that the employé's work required him to be at the factory, and he had to go around the city of New York and get business, having more than a dozen houses that it was his duty to visit every day in the city; that during the last few weeks in August he was at the defendants' factory only once; that between August 18th and 20th, upon being questioned by one of his employers as to his absence from business, he said he was fighting at dispossess action in court, and he had to be in court from day to day because the case was dragging; that he gave his employer two orders from firms who had never in fact given such orders to him, although he had turned in one or more orders during the last two weeks of his employment.

The plaintiff was entitled to recover on the checks, unless his assignor had failed to perform the duties of his employment during the last two weeks of five years of presumptively faithful service. The employé had duties to perform at the New York office, at the defendants' factory, and throughout the city in calling on the defendants' customers, and the fact that he was absent from the factory or the office did not necessarily mean that he was derelict in the performance of his duties.

If the action were for damages for wrongful discharge, the burden would be on the defendants to prove facts in justification of dismissal. Linton v. Unexcelled Fire Works Company, 124 N. Y. 533, 27 N. E. 406. If brought to recover salary, the burden would probably be on the plaintiff to prove performance of his contract. Seaburn v. Zachmann, 99 App. Div. 218, 90 N. Y. Supp. 1005. But this case is neither an action to recover damages nor for salary. The action is on two checks given by the employers in payment of salary, and at the time they gave these checks their own testimony shows that they believed or knew that their employé had absented himself from the factory and

from their office without permission, and notwithstanding that fact they chose for each of the weeks in question to give him a check in accordance with their contract, thus waiving complete performance on the part of their employé. See Spindel v. Cooper, 46 Misc. Rep. 569, 92 N. Y. Supp. 822.

Judgment should be reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

SERVIN v. PERRY et al.

(Supreme Court, Appellate Division, Second Department. April 30, 1915.) PARTITION 114-COSTS-ADDITIONAL ALLOWANCE.

Under Code Civ. Proc. § 3253, providing that, in partition, an additional allowance may be made to the extent of 5 per cent. of the value of the property partitioned, an allowance of 5 per cent. may be made to plaintiff, in which case no allowance may be made to defendant, and, where plaintiff is allowed less than 5 per cent., defendants may be allowed an amount which, added to plaintiff's allowance, shall not exceed 5 per cent. of the value of the property partitioned, and under section 3254, operative only when the value of the property involved calls for its application, the allowance to either party shall not exceed $2,000 nor the allowances to both exceed $4,000.

[Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 440-449; Dec. Dig. 114.]

Appeal from Special Term, Orange County.

Action by Abram F. Servin against John M. Servin and Jessie B. Servin and others. From part of a final judgment, defendants John M. Servin and Jessie B. Servin appeal. Final judgment, in so far as appealed from, reversed.

Argued before JENKS, P. J., and THOMAS, STAPLETON, and RICH, JJ.

Philip A. Rorty, of Goshen, for appellants.

Rosslyn M. Cox, of Middletown, for plaintiff respondent.

STAPLETON, J. The aggregate allowances made to the parties in this action for partition exceed 5 per centum of the value of the property partitioned. The court was powerless to make the excessive allowances.

In Warren v. Warren, 203 N. Y. 250, 96 N. E. 417, the Court of Appeals expressly approved the rule governing the award of allowances in an action for partition announced in Doremus v. Crosby, 66 Hun, 125, 20 N. Y. Supp. 906, and followed in Van Meter v. Kelly, 137 App. Div. 455, 121 N. Y. Supp. 874. Speaking of that rule, the Court of Appeals said:

"Thus this rule has the support of authority, of long-continued usage, and, we believe, of reason based upon controlling practical considerations."

We venture to restate the rule: Section 3253 of the Code of Civil Procedure provides that, in a partition suit, an additional allowance may be made to the extent of 5 per centum of the value of the prop

erty partitioned. If an allowance of 5 per centum of the value of the property partitioned be made to the plaintiff, no allowance may be made to any defendant. If the plaintiff be allowed less than 5 per centum of the value of the property partitioned, the defendants may be granted, upon the value of their respective interests, a per centum allowance which, added to the allowance made to the plaintiff, must not exceed 5 per centum of the value of the property partitioned. The object of the section cited is to give the court discretion, in an action. for the partition of real property, to grant an additional allowance to parties, and discretion as to the proper distribution thereof among parties, if it elects to make a distribution. Upon the power there is, however, a primary limitation, universally applicable, namely, that the aggregate allowances to all parties must not exceed 5 per centum of the value of the property partitioned. There is a secondary limitation, imposed by section 3254 of the Code of Civil Procedure, operative only when the value of the property involved calls for its application, namely, that in no event shall the allowance to the plaintiff exceed $2,000, and in no event shall the allowance to defendants exceed $2,000, and in no event shall the total allowances on both sides exceed $4,000. Weed v. Paine, 31 Hun, 10.

Final judgment, in so far as appealed from, reversed, with costs to the appellants, and application for allowances remitted to the Special Term for disposition in accordance with this opinion. All concur.

GARDNER V. AMERICAN EDUCATIONAL ALLIANCE. (Supreme Court, Appellate Term, First Department. May 11, 1915.) MASTER AND SERVANT 35, 41-CONTRACT OF EMPLOYMENT-DISCHARGE. Where plaintiff was hired at a weekly salary, the contract being ter minated by alterations in terms which the plaintiff refused to accept, being thereupon discharged, he was bound to cease work, and his remedy was a suit for damages, limited to wages for one week.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 12, 41, 50-53; Dec. Dig. 35, 41.]

Appeal from Municipal Court, Borough of Manhattan, Eighth Dis

trict.

Action by Edward W. Gardner against the American Educational Alliance. From a judgment for plaintiff, defendant appeals. versed, and new trial ordered.

Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ.

Sutro & Wright, of New York City (Boardman Wright, of New York City, of counsel), for appellant.

Thomas W. McKnight, of New York City, for respondent.

COHALAN, J. Plaintiff, a salesman of books, sued to recover salary, commissions, and traveling expenses alleged to be due him from

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the defendant. The alleged term of employment was from June 17, 1914, to August 17, 1914.

Plaintiff bases his claim of a definite agreement for a salary of $25 per week upon an interview with Mr. Huntley, the president of the defendant corporation. It appears from his testimony that he showed that officer a pencil memorandum containing his proposed terms of hiring; that thereupon Mr. Huntley stated that later he would prepare an agreement. No written agreement, however, was ever prepared or executed. Even assuming that there was a contract of employment, as asserted by the plaintiff, it was terminated on July 9, 1914. Hence the plaintiff was entitled to receive thereafter only the commissions earned by him.

Upon his discharge, unless he was willing to work under the terms of the contract proposed by Mr. Rines, the defendant's agent, the plaintiff was bound to cease work, and if he were improperly discharged, his remedy was a suit for damages; these damages in this case would be limited to wages for one week. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Dallas v. Murry, 37 Misc. Rep. 599, 75 N. Y. Supp. 1040.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

COHEN et al. v. KABACK.

(Supreme Court, Appellate Term, First Department. May 11, 1915.)

1. BAILMENT

16-CONVERSION-DELAY IN RETURN of Goods.

Where a dyer delayed delivering the goods of the owner, but the delay was not willful, or under such circumstances as to amount to a denial of ownership or of right to possession, the delay was not a conversion of the goods.

[Ed. Note. For other cases, see Bailment, Cent. Dig. §§ 51, 58, 60, 65, 84, 95; Dec. Dig. 16.]

2. APPEAL AND ERROR 171-THEORY IN LOWER COURT-NATURE OF ACTION. Where it was agreed at the trial that the action was for breach of contract, it must be treated as such on appeal.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 10531063, 1066, 1067, 1161-1165; Dec. Dig. 171.]

3. BAILMENT 32-BREACH-DELAY IN DELIVERY.

In an action for breach of contract by delaying the delivery of goods sent to defendant to be dyed, where the goods were tendered to plaintiff before the trial, the measure of damages is the difference in the value of the goods caused by the delay, and not the full value of the goods, since a judgment for breach of contract would not operate to transfer the title to the defendant.

[Ed. Note. For other cases, see Bailment, Cent. Dig. §§ 69, 133; Dec. Dig. 32.]

4. BAILMENT 16-ACTIONS FOR BREACH-DAMAGES-RETURN OF PROPERTY. An owner of goods who sent them to be dyed could not, by bringing an action against the dyer before the latter had refused to deliver or return