Carrere v. Dub , 57 N.Y.S. 82 ( 1899 )

Leventritt, J.

The plaintiff, as assignee of William. Carrere, her husband, sought to recover the value of services alleged to have been rendered by him to the defendant.

The essential facts are, briefly stated, as follows: William Carrere was one of a number of accountants in the regular employ of R. G-. Dun & Co., of which firm the defendant was a member. During the term of his employment, Carrere made an examination of the separate books of the defendant at the instance of one Green, a coemployee, in general charge of the bookkeeping department. The plaintiff contends that this work was not embraced in the general employment, was founded on a special agreement and reasonably worth the sum of $350. To support that contention, Carrere testified that he expressed his willingness to Green to do the work provided he were paid for it, and that Green subsequently notified him that the defendant, having been informed of the proposition, approved of it. The books were thereupon delivered to him and taken to his house, where, as it is claimed, he devoted nights, Sundays and holidays to their examination. He further testified that while engaged on the books, he had two conversations with the defendant. At the first, the latter, handing him a list of additional entries to be made, inquired as to the state of the work, whereupon Carrere replied that he was progressing satisfactorily and that he was applying himself to the books every night at his house. At the second conversation, the defendant requesting a certain statement, Carrere repeated that the books were at his house pursuant to an agreement with Mr. Green. These several conversations are invoked by the plaintiff to show that the defendant both sanctioned and recognized the special agreement.

This is the plaintiff’s story. It establishes a prima facie case and supplies those omissions of fact which on a previous appeal to this court were properly held to be fatal to a recovery. Carrere v. Dun, 18 Misc. Rep. 18. The story, if it had been accepted, would have resulted in a verdict in her favor.

The defendant, however, by his direct contradiction of plaintiff’s version, raised an issue for the jury. Though full performance of the work was admitted, the alleged special agreement was emphatically denied. Green testified that he directed Carrere to examine the accounts in the line of his regular employment, that the removal of the books to Oarrere’s house was at the latter’s special request for his own convenience, and that he was on frequent occasions permitted to leave the office early to enable him to perform the work.

On this conflict of testimony a resort to the jury was necessary.

The plaintiff could not prevail without rehutting the legal presumption, which confronted her at the very threshold of her case, that the stipulated salary of her assignor was the measure of his compensation for all work done hy direction of the firm acting through its individual members. O arrere v. Dun, supra. To that end, as already outlined, evidence was adduced to make it appeal1 that the work directed to he done was independent of, and foreign to, his regular services; was performed at unusual times, and with the knowledge and consent of the defendant. Although the plaintiff may have succeeded in overcoming this presumption, the direct contradiction of Carrere’s testimony by that of Green raised an issue, the determination of which lay solely within the province of the jury.

Even in the absence of such contradiction,' Carrere’s credibility, he having been an interested witness, was involved, and the jury was at liberty to accept or reject his statements. Kavanagh v. Wilson, 70 N. Y. 177, Elwood v. W. U. Tel. Co., 45 id. 549.

The verdict, amply warranted by the evidence, is an indorsement of the defense, and unless there be merit in the exceptions to which the plaintiff is remitted, the judgment must remain undisturbed.

The appellant urges that the admission of a receipt and the reference to a release, both executed by her assignor to the firm of R. G. Dun & Co., constituted reversible error.

In view of the testimony of Green that the receipt was given for a payment which included compensation for the services alleged to have been rendered to the defendant individually, the receipt was clearly relevant and competent, while the subsequent release was material in support of the issue raised by the answer that there was no special agreement, and that the firm had discharged all obligations to Carrere.

Exception was also taken to the exclusion of a question propounded on the cross-examination of Green as to whether a custom prevailed with R. G. Dun & Co. permitting the removal of books from their office for the purpose of doing office work. The plaintiff’s object in seeking a negative answer to this question was fully accomplished by Green’s concession that the removal was exceptional. A careful examination of the record fails to show any erroneous ruling. The verdict meets with our approval as eminently just, and the judgment of the General Term should be affirmed.

Freedman, P. J., and MacLean, J., concur.

Judgment and order affirmed, with costs to respondent.