Charles E. Lichtenhein, Respondent, v. Charles E. Fisher, Appellant

Charles E. Lichtenhein, Respondent, v. Charles E. Fisher, Appellant. Wrongful discharge — evidence of the term of service of other employees—presumption from, continued, employment as to length of service.- In an action brought to recover wages alleged to have become due after the plaintiff’s wrongful discharge from the defendant’s employment, it appeared that one Bliss, the person with whom ,the plaintiff’s contract had been originally made, had subsequently entered into partnership with the defendant, and the disputed questions were whether the defendant had assumed the conlract, and-whether the hiring was by the week or by the year. Held, that it was erroneous to allow the plaintiff to introduce the evidence of other employees that they were employed by the year; That it was also erroneous for the court to decline to charge the jury, as requested by the defendant, that the fact that the plaintiff remained in the employment of the firm after June 1, 1893, the date of the formation of the partnership, at the same wages as those which he had received before that time, raised no presumption that the firm had employed him to May 1, 1893, the date when his contract with Bliss expired. Appeal by the defendant, Charles E. Fisher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 6th day of December. 1895, upon the verdict of a jury rendered after a trial at the Hew York Circuit, and also from an order bearing date the 3d day of December, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes. This action was brought to recover the amount of wages alleged to be due an employee from his employer after the alleged wrongful discharge of the employee. Gliarles D. Ridgway, for the appellant. John Sabine Smith, for the respondent. [MAJORITY — O’Brien, J. :] O’Brien, J. : The facts and questions of law here involved are fully stated in the opinion upon the former appeal (87 Hun, 398), and it is, therefore, unnecessary to restate them.. The judgment here is assailed for errors claimed to have been made in rulings upon evidence and in the charge of the judge. Upon the part of the plaintiff, the disputed questipns as to whether the employment was by the week or year, and as to whether his contract was assumed by the defendant,, were sought to be supported by declarations of Bliss, with whom the contract was originally made, and who, subsequently, entered into partnership with the defendant. The important issue was as to whether the plaintiff’s Was a weekly or a yearly hiring. To. support his contention he-was permitted, over objection, to introduce the evidence of other employees that .they were employed by the year. In addition, the court was asked to charge the jury “ that the fact that the plaintiff remained in the employment ,of Charles E. Bliss & Co. after June 1, 1892 (the date of the formation of the partnership), at the same wages,, raises. no presumption that the firm had employed him -to ITay 1, 1893 ” ¡(the date when his contract with- Bliss was to expire)—■ which request was refused. As these two rulings were erroneous, the. judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event. Van Br'únt, P. J., Barrett, Rumsey and Ingraham, JJ., concurred. Judgment reversed and new trial ordered, with costs to appellant to abide event: ....