Margolies v. Ernst

This action having been brought upon an oral contract of employment at a fixed compensation and for a fixed period, and all of the averments in the complaint having been denied in the answer except that the plaintiff was employed in defendant’s factory, the period of employment was certainly one of the material issues involved in the trial. In the main charge of the learned court no reference is made to this subject, but at plaintiff’s request the court charged in the following words: “ There has been no denial of the contract on, the pleadings.” This was manifestly error, and left to the jury only the question as to whether or not the affirmative defenses pleaded in the answer were established. It amounted to a statement by the court that the contract, as set forth in the complaint, was admitted, and, indeed, in view of some of the rulings upon evidence, there is good *270ground for the contention that this was the general theory of the case adopted by the learned trial court.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Present: Scott, P. J., Beach and Fitzgerald, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.