Spitzer v. Rosenbaum

A part of plaintiff’s claim was conceded, namely, $7.-59. The appeal refers to the award of $63.50 on the second cause of action.

The trial of this case was radically confused by insufficiency of pleading and irregular proof thereunder. The result is that the real point in controversy, namely, whether defendants retained 50 cents a week out of plaintiff’s salary conditionally, as security against his going on strike (which it is conceded he did not do), *856or, as defendants claim, whether they retained it absolutely ás compensation for estimated “waste” of material which he would commit, in the course of manufacture, was not submitted to the jury. It is true that this question is not raised by the pleadings; but it was raised by plaintiff’s proofs, and the defendants should have been permitted to meet it by counter proof.

Under the circumstances, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.