Engel v. Schoolherr

J. F. Daly, J. [After stating the facts as above.]— Testimony was given by three of the' workmen, Morrison, Meyer and Katzenstein (expressman), that plaintiff demanded money for giving out the defendant’s work, but plaintiff denied the fact. The admitted receipt by him of the $20 from Waixelbaum on behalf of Friedman, another workman, although explained by him to be a voluntary (offering and not an extortion or exaction, leads to the conviction that the three witnesses who testified against his single oath, testified truly, and if the case presented only a .Question of fact which it was the province of the jury to pass upon, I should be in favor of granting a new trial, that the case might be presented to another jury (Clark v. Mechanics Nat. Bank, 8 Daly 481-504). But! think the evidence given by Waixelbaum as to the circumstances of the payment of the $20 to plaintiff on behalf of Friedman, and the receipt and retention of it by plaintiff, justify the act of defendants in discharging him, and .that he should not recover in this action. He was told by Waixelbaum from whom the money came; he knew it wás sent him by Friedman, one of the tailors to whom he gave out work; and although he insisted that he had not asked for it, his keeping it with full knowledge that it could only have been intended as a bribe to give Friedman some preference or consideration in distributing the firm’s work, was as much .a breach of duty to defendants as if he had extorted dt -in ¡the first instance. It is objected by plaintiff to the granting of a new trial [419] that defendants did not ask to have a verdict directed in their favor, and having thus consented to a submission of the question to the jury, cannot afterwards be heard to allege that the verdict was against the evidence. Such an objection might be properly urged in an appellate court, where a review for error could only be heard on exception (Barrett v. Third Ave. R. R. Co., 45 N. Y. 632). But the rule is otherwise in the court in which the trial is had, and we have always applied it (Maier v. Homan, A Daly 168. See Keyes v. Devlin, 3 E. D. Smith 523, per Woodruff, J.) The order appealed from is affirmed, with costs. Larremore and Beach, JJ., concurred. Order affirmed, with costs.