Teron v. Sheridan , 36 Misc. 839 ( 1901 )

McCarthy, J.

It is conceded by both counsel that the plaintiff is only entitled to services actually performed for and agreed to be paid by the defendant. It is also conceded that all the other matters involved have been stricken out by consent.

The issue is therefore plain and simple. What period of time has the plaintiff proven, under the rules of evidence, he is entitled to ? It is plain that defendant is only liable to plaintiff for work done by him for her under her telegram to Mr. Allen or under his authority as agent. It seems to us, therefore, that the plaintiff, not having any but his own evidence, must fail, unless it is corroborated by the circumstances surrounding the matter involved. We are clear that this is not the fact except to the extent that the plaintiff was employed by Mr. Allen on the telegram received from Mrs; Sheridan, and which covered a period of only three or four days when he was discharged by said Allen. The action for the services alleged to have been rendered to the deceased husband, if the plaintiff seeks to recover therefor, must be brought against the defendant under a different title and in a different capacity. There are other errors in this record, but, this being a vital one, it is unnecessary to go any farther.

Judgment is reversed and a new trial ordered, with costs and disbursements to abide the event;

Delehahty and Schuchmah, JJ., concur in the result.

Judgment reversed and new trial ordered, with costs to abide event.