Opinion
August, 1894.
Lawrence P. Mingey, for appellant.
Robert Goeller, for respondent.
This action was brought by the plaintiff for the purpose of recovering for wages which he claimed to be due him as engineer and for the services of his wife as janitress of certain premises belonging to the defendant. The defense was that the plaintiff and his wife had been discharged for misconduct on their part during the course of their employment, and also a counterclaim for goods sold the plaintiff or his wife. On the trial it appeared that the employment was a monthly one, and that a full month's services had been rendered by the plaintiff before his discharge. The proof as to the misconduct of the plaintiff was vague and uncertain, and we think the justice did not err in the conclusion at which he arrived upon the evidence before him. It is true that the plaintiff's testimony was somewhat contradictory, but the justice had all the parties before him and could better judge of the weight to be given to the testimony of the witnesses produced than we can possibly do. But it is clear that the justice erred in his calculation as to the amount due the plaintiff. The action was brought to recover the sum of $118.04. On the trial, after the plaintiff had rested his case, his counsel reduced the claim to eighty dollars and fifty-six cents. The defendant offered evidence in support of his counterclaim, which amounted to the sum of thirty-one dollars and fifty cents, and which the justice allowed at sixteen dollars and fifty cents. As found by the justice, there was due the plaintiff for wages for the month of November, according to the contract between the parties, fifty dollars; for the work during the month of December, five days, for which he allowed two dollars and fifty cents per day, amounting to twelve dollars and fifty cents; he also found that there was seven dollars due for services of the wife, and three dollars and fifty cents, a balance for moneys expended for materials furnished in and about the premises. An examination of the receipts in evidence shows that instead of the balance being three dollars and fifty cents, it was in reality but three dollars and four cents. This, together with the items above mentioned, amounts to seventy-two dollars and fifty-four cents, or, as the justice states it, seventy-three dollars. It is obvious, therefore, that he did not deduct the amount of the counterclaim from that sum, which would leave the true amount due the plaintiff, according to the justice's finding, fifty-six dollars and four cents. This error arose probably from the fact that copies of monthly bills had been introduced in evidence amounting in all to twenty-seven dollars. But it is clear from plaintiff's testimony that these had all been paid, for he rendered a bill to the defendant for the month of November which amounted to eighty-four dollars and fifty-four cents, upon which there was a credit of four dollars, reducing it to eighty dollars and fifty-four cents, the exact amount claimed by him on the trial. When interrogated by the defendant's counsel as to this November bill, he stated that there was no other debt existing from the defendant to him at the time for materials furnished, and repeated this statement when interrogated by the court in such a manner that there could be no mistake as to the matter. Besides this, the defendant introduced in evidence the receipt of the plaintiff for the month of November showing payment in full for that month, and we apprehend that monthly bills of expenses fall within the same rule as receipts for rent, and it has been held that such a receipt is presumptive evidence that all rent previously accrued has been paid. Decker v. Livingston, 15 Johns. 479.
It is also contended that the court erred in allowing a recovery for the wife's services as janitress, on the ground that she had a right under the Married Woman's Act to sue individually. But the husband's testimony is that he made the arrangement with the defendant for the services of his wife as janitress, and there is no evidence that the defendant ever paid the wife individually or intended to do so. In Blaechinska v. Howard Mission, 130 N.Y. 497, it was held that where the wife works with her husband for another, and their joint earnings are used to support the family, if there is no special contract that she is to receive the avails of her labor, they belong to him, and he is entitled to recover their value, citing Birkbeck v. Ackroyd, 74 N.Y. 356; Bean v. Kiah, 4 Hun, 171.
The judgment must, therefore, be modified by reducing the principal amount to fifty-six dollars and four cents, to which are to be added the costs in the court below. No costs to either party upon this appeal.
GIEGERICH, J., concurs.
Judgment modified and as modified affirmed, without costs.