Pickslay v. Starr

• Decision Date: 26 May 1896
• Citation: 149 N.Y. 432,44 N.E. 163
• Parties: PICKSLAY v. STARR.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 432

44 N.E. 163

PICKSLAY

v.STARR.

Court of Appeals of New York.

May 26, 1896.

Appeal from supreme court, general term, Second department.

Action by Charles Pickslay against Theodore B. Starr to recover a balance alleged to be due plaintiff on a contract for services rendered defendant. From a judgment of the general term affirming a judgment in favor of plaintiff (27 N. Y. Supp. 616), defendant appeals. Affirmed.

The action was brought to recover a ballance alleged by the plaintiff to be due to him from the defendant, pursuant to an agreement between them relating to his compensation while in the latter's employment. For a number of years prior to the year 1889, the defendant had been in the habit of giving to the plaintiff at Christmas a present of $2,500. In April, 1889, an arrangement was made between them by which the plaintiff's salary was increased to $9,000 from and after May 1, 1889; and from and after May 1, 1890, in addition to the sum of $9,000, plaintiff was to receive a commission for the year of 1 1/2 per cent. upon the amount of the defendant's sales in excess of $600,000. In the evening of December 24, 1889, at an interview between the plaintiff and the defendant, the latter handed to the former a check for $2,500, with an expression of his wishes for a merry Christmas. On the day after Christmas, another interview occurred between the parties,-after which the plaintiff was departing for his home, but, remembering that he had not spoken to the defendant about the present, he returned, saw the defendant, and said to him: ‘I came back to thank you for your present to me, and also on behalf of Mrs. Pickslay, to return her thanks to you for the present you gave her.’ The defendant replied that he ‘was very glad that they were pleased.’ A few days later, the defendant's attention was called to the check by his bookkeeper, and, being asked what should be done with it, he directed him to charge it to the plaintiff's account. The defendant did not, however, then speak to the plaintiff upon the subject; nor was the plaintiff informed with respect to the entry in the books until in May following, when it appeared in an account rendered to him by the bookkeeper. At that time the defendant was absent in Europe. In September of that year, and again in the winter or spring following, the plaintiff says he spoke to the defendant about the bookkeeper having charged the $2,500 against him, and that there was discussion between them; the plaintiff insisting that he had every reason to suppose it was a gift, and the defendant insisting that it was a mistake. In April, 1891, the plaintiff entered into business for himself. According to the defendant's evidence, the new arrangement, with respect to the compensation of the plaintiff, was made upon the basis of increasing his previous salary by adding to it the usual Christmas gift of $2,500 and a still further sum. He had forgotten about the new arrangement between them at the time when he made the Christmas gift in question, and, in making it, he had followed the habit of previous years. He testified that the whole thing was a mistake, and that he had not intended to give the $2,500 to the plaintiff, in addition to his salary and commissions under the new arrangement. The finding of the referee before whom the trial was had is ‘that the sum of $2,500 paid by the defendant on or about the 24th day of December, 1889, to plaintiff, was not a payment on account of salary, but was a gift from defendant to plaintiff.’ The dispute between the parties turns upon whether there was a valid gift of the $2,500 to the plaintiff, as he claims, or whether, the gift having been made under a mistake, as the defendant claims, it was invalid, and could be now offset against the demand of the plaintiff for the balance due to him in account, at the time when he left the defendant's employment, in April, 1891. The judgment entered upon the direction of the referee in the plaintiff's favor, for the amount as claimed by him, has been affirmed by the general term, and the defendant has appealed to this court from the judgment of affirmance.

Delos McCurdy, for appellant.

William H. Ford, for respondent.

GRAY, J. (after stating the facts).

This is a peculiar case. It is perfectly clear that the defendant intended, at the time, to give to the plaintiff the Christmas present of $2,500; and it is also...