Appellate Term, First Department, February, 1918. [Vol. 102. MEYER WEILL, Respondent, v. GOODMAN, SHIRT Waists, Appellant. (Supreme Court, Appellate Term, First Department, February, 1918.) Services - stipulated price for contracts - evidence — damages. Where plaintiff employed by defendant to audit and supervise its books was permitted so to do until the expiration of the contract of employment his claim for the agreed compensation cannot be defeated, even though he performs the work unskillfully, except by allegation and proof of damages equal to the stipulated price for his services. Finch, J., dissents. APPEAL by the defendant from a judgment of the Municipal Court of the city of New York, borough of The Bronx, second district, entered in favor of the plaintiff after a trial before the court without a jury. Bloomberg & Bloomberg (H. A. Bloomberg, of counsel), for appellant. Levy & Nemerov (Nathaniel Levy and Joseph Nemerov, of counsel), for respondent. LEHMAN, J. The plaintiff was employed to audit and supervise the account books of the defendant for one year. It is undisputed that the plaintiff served the full year and kept the books for the defendant without any objection by defendant. He was not discharged by the defendant but left voluntarily and the defendant then refused to pay him the stipulated amount for his services claiming that the services had not been properly performed. The trial justice found that the services had been unskillfully and improperly performed but gave judgment in favor of the plaintiff. Misc.] Appellate Term, First Department, February, 1918. It seems to me that this judgment is entirely correct. The defendant had a right to discharge the plaintiff because of his unskillful work but retained him and permitted him to do the work until the end of the term. If the plaintiff's services were unskillfully performed the defendant had a right to counterclaim for consequent damages, but since the contract called for continuous service on the part of the plaintiff and the plaintiff performed these services, even though unskillfully, and was guilty of no willful breach of the contract, of no dishonesty or unfaithfulness to his employer and the defendant accepted the plaintiff's services I do not think that it can defeat the plaintiff's cause of action except by alleging and proving a counterclaim for damages equal to the stipulated price for the services. Judgment should therefore be affirmed, with twentyfive dollars costs. WEEKS, J., concurs. FINCH, J. (dissenting). This action is for agreed compensation for supervising and keeping the books of the defendant. Plaintiff was engaged under a written contract to audit and supervise the account books of the defendant for one year for a lump sum of $500. The plaintiff spent about one day and a half each week in defendant's place of business. The plaintiff apparently attempted to keep the books himself, as no other bookkeeper was employed. At the close of the year plaintiff voluntarily left. Plaintiff was paid $250 when the year was about half over, and sent a bill for the balance after the year was up, for which balance he now sues. Both parties treated the contract as an entire one, and the dispute at the trial was what work the plaintiff did. The learned court below indicated his findings Appellate Term, First Department, February, 1918. [Vol. 102. upon the facts, which were "that the books were kept in a miserable condition" and that the plaintiff "assumed to keep a set of books on which he could not tell in any way, shape or manner where he was at." The court, however, found for the plaintiff upon the ground that he had no other recourse since the plaintiff had remained all the year and the defendant had not counterclaimed for any damages. It is well settled that in a contract of service where the servant has served the full term and there has only been a breach in some particular portion of the contract, which does not go to the essence of the same, the servant may recover the compensation fixed by the contract less such damage as the master may counterclaim for. Turner v. Kouwenhoven, 100 N. Y. 115; Sipley v. Stickney, 5 L. R. (N. S.) 469; Walsh v. New York & K. Co., 88 App. Div. 477. But this rule has no application where the breach is of such a nature as to go to the very essence of the contract and constitute a total failure of performance. From this record it is impossible to tell what work the plaintiff did perform. The plaintiff was in actual charge of the books and responsible for them. The defendant had no knowledge of bookkeeping and was entitled to rely upon the supposition that the plaintiff was properly performing his duty. When the defendant asked the plaintiff for statements they were not given, but instead excuses were offered. Apparently the defendant did not discover the condition of its books until the termination of plaintiff's employment, and since it is apparent that the defendant left the keeping of the books entirely to the plaintiff such might well be the case. It does not appear from this record that the books were otherwise than useless to the defendant. If the facts are as indicated by the court, it was not a case of a set of books which were improperly kept in some particular, but a Misc.] Appellate Term, First Department, February, 1918. case where the books purporting to be kept were utterly useless, and the learned court below was not obliged, and it was error, to disregard this issue and find for the plaintiff. The defendant is entitled to a trial of the issue as to whether there was a failure of performance upon the part of the plaintiff which went to the essence of the contract. Turner v. Kouwenhoven, supra. It follows that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event. Judgment affirmed, with costs. JAMES H. ALBERTSON, Appellant, v. Louis A. (Supreme Court, Appellate Term, First Department, February, 1918.) Negligence action to recover damages to automobile — evidence damages - appeal - automobiles. In an action to recover damages to an automobile owned and operated by plaintiff, caused by a collision with one owned by defendant and operated by his chauffeur, no recovery can be had except upon proof that the damage occurred solely through the negligence of the defendant and without any contributory negligence on plaintiff's part. Where in such an action it appeared that a few moments prior to the accident, which occurred on a misty night on one of the main drives of Central Park in the city of New York, a chain on one of the rear wheels of plaintiff's car broke, wound itself around the axle and blocked the car which came to a standstill a few feet from the curb of the road which was lighted by lanterns about seventy-five feet apart, and while the car was in that position defendant's car collided with it; and upon any possible theory of the case defendant's chauffeur was guilty of negligence and it clearly appeared that no possible Appellate Term, First Department, February, 1918. [Vol. 102. negligence on the part of plaintiff could be predicated upon the position of the car which could not be moved until the chain was unwound from the axle, a dismissal of the complaint was reversible error. It is negligence as matter of law for a chauffeur to run an automobile at the rate of twelve miles an hour in Central Park on a night when he cannot see beyond the hood of his car. Finch, J., dissents. APPEAL by plaintiff from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fifth district, dismissing the complaint after a trial by the court without a jury. Alfred Ekelman, for appellant. Neuman & Newgass (Frederick F. Neuman and Edward M. James, of counsel), for respondent. LEHMAN, J. The plaintiff has brought this action. for damages to an automobile, owned and operated by him, through a collision with an automobile owned by the defendant and operated by his chauffeur. In order to recover the plaintiff must of course show that the damages occurred solely through the negligence of the defendant and without any contributory negligence on his part. There is no serious dispute as to the facts in this case. A few minutes previous to the accident a chain on one of the rear wheels of the plaintiff's car broke, wound itself around the axle of the car and blocked the car so that it was stopped at once. At that time the car was on the right-hand side of the road facing north but a few feet from the curb. The plaintiff and a friend who was driving with him got out of the car in order to try to repair it. While the car was standing in that position the defendant's car collided with it. Defendant does not claim that the collision was due to inability to stop his car, but the chauffeur |