Appellate Terms of the Supreme Court of New York, 1913

Brady v. Donohue

Appellate Terms of the Supreme Court of New York · Decided February 7, 1913 · Lehman

139 N.Y.S. 851 (New York Supplement)

Counsel

Daniel Daly, of New York City (Joseph H. Banigan, of New York City, of counsel), for appellant., Moses Weill, of New York City, for respondent.

Opinion of the Court

LEHMAN, J.

Plaintiff claims that he was employed by defendant’s testator as bartender at a salary of $14 per week, that he agreed that the decedent should retain $4 per week from his wages, and that each week he paid himself $10 from the cash receipts. .Plaintiff produced three disinterested witnesses, who testify that the decedent told them at various'times that he was retaining $4 per week from plaintiff’s wages; otherwise, plaintiff would lose it all at horse racing.

The plaintiff’s evidence as to the employment at $14 and the agreement that decedent was to retain. $4 per week was clearly incompetent. With this evidence out of the case, there is no sufficient basis for a recovery. The testimony of the disinterested witnesses merely shows that at some time the decedent retained part of plaintiff’s wages, but it does not show for how long a period the practice continued.

Judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

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