Ginsberg v. Friedman

BIJUR, J. This action was brought to recover damages for breach of a contract of employment whereunder plaintiff was employed at a fixed salary per week from December 21, 1908, to November 1, 1909, plus 1 per cent, of the “amounts of cash actually paid to the party of the first part for merchandise sold by him during the said term.” It was also provided that the plaintiff should design cloaks and suits, “which shall at all times be to the satisfaction of the defendant,” who “shall be the sole judge thereof.” Plaintiff was discharged without cause, as he claims, in June, 1909. Defendant’s principal contentions are: First, that he was entitled to discharge the plaintiff whenever he chose, because of the provision that the work was to be done to his satisfaction; but the rule is clear, as laid down by Mr. Justice Seabury in Haehnel v. Trostler, 54 Misc. Rep. 262, 104 N. Y. Supp. 533, that the claim of dissatisfaction must be real, and honestly urged, and not a mere pretense. Second, that as plaintiff admitted that defendant had criticised him early in June, 1909, and nevertheless retained him, the jury may have believed that the plaintiff’s shortcomings had been condoned, and that the court should have charged to the contrary; but that rule does not apply in a case like the present, where the offenses were alleged to have been continuous and to have immediately preceded the discharge. Gray v. Shepard, 147 N. Y. 177, 41 N. E. 500. There was no claim made at the trial by plaintiff that his various offenses had been condoned, and the court’s charge, at folio 491 is entirely favorable to defendant on this point. Third, that the court erred in allowing the 1 per cent, commission to be figured on the receipts of defendant subsequent to plaintiff’s discharge and after a new designer had been employed, citing Dunham v. Hastings Pavement Co., 95 App. Div. 360, 88 N. Y. Supp. 835; but in that case the subsequent receipts were' on contracts which the agreement in suit made it the duty of the plaintiff personally to obtain, and the court naturally held that receipts [475] from contracts obtained by defendant’s successor furnished no correct measure of defendant’s damage. The agreement in the case at bar, however, contemplates no effort on the part of plaintiff to bring about sales, and the rule, therefore, has no application. On all the above points, as well as in respect of the other objections urged by appellant, I find that the charge of the trial judge was so elaborate, careful, and sound in law that the appellant was prejudiced in no wise, and that the verdict of the jury should not be disturbed. Judgment affirmed, with costs. All concur.