Opinion
February 27, 1925.
Kamen Ostertag [ Sol S. Ostertag of counsel], for the appellant.
James A. Palmer, for the respondent.
This judgment must be reversed for the following reasons:
First. The action was for wages. The recovery was for damages for wrongful discharge. The statement of the court "Breach of contract would be about the same thing" was prejudicial before the jury. The subsequent amendment came too late and entirely changed the cause of action. ( Reed v. Newman, 31 Misc. 792; Elliott v. Miller, 17 N.Y.S. 526; McNeil v. Cobb, 186 A.D. 177; Ginsburg v. Von Seggern, 59 id. 595.)
Second. The contract was to perform services satisfactory to the defendant. The defendant's business was the production and sale of high grade dresses and millinery. This involved matters of taste. The court charged the jury that they should find for the defendant "if the plaintiff's work was of a grossly unsatisfactory character," and refused to charge that if the defendant "was not satisfied with the plaintiff's work and that she was sincere in discharging the plaintiff, their verdict must be for the defendant." He accentuated this refusal by charging over exception: "They must find that her work was of such a character as would satisfy a reasonable person." This was error. ( Haehnel v. Trostler, 54 Misc. 262; Clausen v. Vonnoh, 55 id. 220; Spain v. Manhattan Shirt Co., 177 A.D. 610; Delano v. Columbia M. Works M. Iron Co., 179 id. 153.)
Judgment reversed and new trial ordered, with thirty dollars costs to the appellant to abide the event.
All concur; present, GUY, McCOOK and PROSKAUER, JJ.