Opinion
June 28, 1946.
Appeal from Supreme Court, New York County.
The evidence raised jury questions as to whether plaintiff's husband was employed by the defendant corporation or by the individual defendant or both, the nature of the agreement between them, and the nature of the payments made, i.e., whether the payments were in fact "salary, income or emoluments" or were partly or wholly expenses which could not be fairly considered "salary, income or emoluments". It was error to dismiss the complaint as to the individual defendant at the close of the evidence and it was error to dismiss the complaint as to the corporate defendant, after the verdict, on the motion to dismiss at the close of the case, as to which the court had reserved decision. We do not believe that the verdict should be reinstated as to the corporate defendant, however, because we find error in the charge that anything the individual defendant did he did as president of the corporation, and think that a new trial should be had with the opportunity for the jury to consider the case against both defendants on a fuller charge.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
Martin, P.J., Townley, Glennon, Callahan and Peck, JJ., concur.
Judgment unanimously reversed and a new trial ordered, with costs to the appellant to abide the event.