Majansky v. Lipman

Giegerich, J. This action is for services performed by the plaintiff as a domestic servant. The defense was that the plaintiff left the defendants’ employ before the expiration of the month for which she was employed, and the justice decided the issues in favor of the defendants. We think that this determination is amply supported by the evidence, and the applicant’s contention that the judgment is against the weight of the evidence cannot be viewed as well founded. The .justice had the power to permit an amendment of the answer setting up the plea of payment (Milch v. Westchester Fire Ins. Co., 13 Misc. Rep. 231; Thedford v. Reade, 28 id. 563); but, in any event, the amendment did not affect the result, since the issues were determined upon a different ground of defense and payment, which was not in the case except so far as involved in the defendants’ gratuitous payment into court of a sum to which the plaintiff was not actually entitled as matter of law. Beekman, P. J., and O’Gorman, J., concur. Judgment affirmed, with costs.