Opinion
June 18, 1908.
A.S. Gilbert [ Julius M. Mayer with him on the brief], for the appellant.
Albert Tameling, for the respondent.
I think that upon any reasonable view of the evidence the defendant was justified in discharging the plaintiff from its employment, and that the complaint should have been dismissed as to the first cause of action. ( Jerome v. Queen City Cycle Co., 163 N Y 351.) While the cause for the discharge was not pleaded as a defense the question was litigated without objection, and the respondent on this appeal makes no point that the defense was not pleaded.
The plaintiff was employed in the capacity of salesman and general manager of the defendant's sales department for the metropolitan district. The written contract of employment provided, inter alia, as follows: " Second. The said party of the second part hereby agrees to enter such employment, and agrees to devote his entire time and undivided attention thereto, and diligently and faithfully and to the best of his ability, serve the said party of the first part, and he hereby agrees to conform to all reasonable directions, instructions and requirements that may from time to time be given him by said party of the first part." The plaintiff evidently interpreted that clause to mean that he was not to be engaged in any other business.
The defendant, becoming suspicious that the plaintiff was not attending to his duties, had him shadowed by detectives and learned that he and a fellow-salesman in the defendant's employ, one Rosenstock, were together much of the time during the forenoons, and that they invariably went to a cafe at 724 Broadway soon after twelve o'clock and after lunching spent the afternoons there together playing cards and shaking dice, on different occasions remaining there until nearly five o'clock, when they would return separately to the defendant's office, evidently to create the impression that they had not been together. Said detectives testified on the trial to what they discovered and the plaintiff did not dispute it. He explained the fact that he always went to 724 Broadway for lunch, no matter in what part of the city he happened to be, by saying that it was a good place to lounge. He tried to account for being so much in the company of Rosenstock, even during the forenoons, by the fact that his duties as manager of the sales department required him to instruct new or inexperienced men, and to assist them with their customers. The plaintiff's duties were to solicit business himself, and to have general supervision of three or four other salesmen; but it is undisputed that Rosenstock had his own customers, was an experienced salesman, and did not require the plaintiff's assistance. The subterfuge that the plaintiff and Rosenstock went to said cafe to meet customers, and remained there during the afternoon for the purpose of entertaining them, is too palpable to be considered seriously, and the lame excuse of the plaintiff that he usually got tired at about twelve o'clock, and that he averaged through the year about two hours for lunch, should not be suffered to impose upon our credulity.
Of course a salesman must be allowed reasonable latitude. He has to adjust his time to suit the convenience of his customers, but the evidence in the record before us presents a plain case of conscious shirking of duty. The defendant did not employ the plaintiff to spend his time in the company of Rosenstock, visiting a few customers during the mornings and playing cards in a saloon during the afternoons; and a jury should not have been permitted to say that that course of conduct was a reasonable performance of an agreement to devote his entire time and undivided attention to the service of the defendant and diligently and faithfully to serve it.
The judgment, in so far as appealed from, should be reversed.
WOODWARD, HOOKER, GAYNOR and RICH, JJ., concurred.
Judgment, in so far as appealed from, and orders reversed and new trial granted, costs to abide the event.