Evans v. Lawrence Stern & Co.

CourtNew York Court of Appeals
Writing for the CourtFINCH
Citation270 N.Y. 177,200 N.E. 777
Decision Date03 March 1936
PartiesEVANS v. LAWRENCE STERN & CO. GRAY v. LAWRENCE STERN & CO.

270 N.Y. 177
200 N.E. 777

EVANS
v.
LAWRENCE STERN & CO.
GRAY
v.
LAWRENCE STERN & CO.

Court of Appeals of New York.

March 3, 1936.


Actions by Bradley B. Evans and Martin P. Gray against Lawrence Stern & Co. From a judgment of the Appellate Division of the Supreme Court (246 App.Div. 567, 283 N.Y.S. 1009) affirming a judgment of Trial Term dismissing the complaint, plaintiffs appeal.

Judgment in each case reversed and directed for plaintiff.


[270 N.Y. 177]Appeal from Supreme Court, Appellate Division, Fourth department.

A. Gerald Weinberg, of Buffalo, for appellants.

270 N.Y. 178]Edward L. Jung, of Buffalo, for respondent.
[270 N.Y. 179]FINCH, Judge.

The plaintiffs, former employees of the Industrial Furnace Corporation, bring these actions to recover wages due them against the defendant, a stockholder of said corporation, pursuant to section 71 of the Stock Corporation Law (Consol.Laws, c. 59).

The Industrial Furnace Corporation manufactured and sold electric annealing furnaces. The plaintiffs, college graduates, were employed by the corporation; their principal duty being to travel about the country instructing people who had purchased furnaces in the method of operating them. One of the plaintiffs, Evans, was sent to Russia for a period in order to give such instruction in that country. To instruct the purchasers, it was necessary for the plaintiffs actually to operate the furnaces. [270 N.Y. 180]The instructions generally were given for about a week, but on occasions lasted as long as a month and a half. Another duty of the plaintiffs, and this occupied practically all of their time during the last few months of their employment, was the making of certain ‘research’ tests. One of these tests, called ‘the impact test,’ merely involved striking a piece of metal with a hammer until the metal broke and then noting the number of blows necessary to cause the break. The other test, ‘the wedge test,’ was of a similar nature, except that it involved the dropping of a weight upon the metal while it was held by a wedge. The plaintiffs also had stenographic and typing work on their reports. They testified that most of their ‘research’ work involved simple arithmetic. When they were first employed, the salary of Evans was $35 a week and that of the other plaintiff, Gray, $250 a month. Subsequently Gray's salary was reduced to $125 a month.

During the month of December, 1933, the plaintiffs were given a notice informing them that their salaries were to terminate on December 31, 1933. There is evidence that the plaintiffs worked on December 31st, although that day was a Sunday.

The plaintiffs had received only partial payments on their salaries during the last 2 years of their employment. After their discharge, they determined to assert their rights against the stockholders of the corporation. They therefore retained an attorney who sent the proper notice to stockholders pursuant to section 71 of the Stock Corporation Law. The notices were sent on January 29, 1934, and were received by the defendant on January 30th. The notices stated that the employment of the plaintiffs terminated on December 30, 1933. At the trial the stenographer who typed the

[200 N.E. 778

notices testified that she had changed the date dictated to her from December 31st to December 30th because she realized that the 31st fell on a Sunday.

[270 N.Y. 181]At the close of the plaintiffs' case, the defendant moved to dismiss the complaint, and a dispute arose as to whether the plaintiffs were bound by the day named in their notice. If they were, notice was not timely, since notice had to be received within 30 days after the termination of employment. There was some discussion as to whether the question of when the employment terminated was one of law or...

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1 practice notes
  • Klepner v. Dorfman
    • United States
    • New York Supreme Court Appellate Division
    • December 17, 1998
    ...but not to the exclusion of his other clients, does not come within the Page 534 terms of the statute" (Evans v. Lawrence Stern & Co., 270 N.Y. 177, 183, 200 N.E. 777, citing Bristor v. Smith, supra ), "[p]laintiff's [undisputed] circumstances are not comparable to those of the attorney in ......
1 cases
  • Klepner v. Dorfman
    • United States
    • New York Supreme Court Appellate Division
    • December 17, 1998
    ...but not to the exclusion of his other clients, does not come within the Page 534 terms of the statute" (Evans v. Lawrence Stern & Co., 270 N.Y. 177, 183, 200 N.E. 777, citing Bristor v. Smith, supra ), "[p]laintiff's [undisputed] circumstances are not comparable to those of the attorney in ......

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