#### Innes Getty, Respondent, *v.*Roger Williams Silver Company, Appellant.

First Department,

May 28, 1914.

Master and servant —action for wrongful discharge of salesman — neg ligence in reshipment of goods — grounds for discharge.

Where, in an action for alleged wrongful discharge, it appears that the plaintiff was employed by defendant as a silverware salesman and authorized to open and maintain an office for the display of samples; that he selected and hired a boy to care for the office in his absence; that when it became necessary to reship goods to the defendant he intrusted the matter to the boy, who delivered the packages or trunks to an elevator attendant, who, if the packages were small, kept them in the elevator until the express messenger called for them, but, if they were large, left them on the ground floor in a public hall opening into the street and wholly unguarded, and that after two trunks had been stolen from the hallway plaintiff allowed two more trunks to be left in the same place from which they were stolen, the negligence of the plaintiff justifies his discharge and his complaint should be dismissed.

It is immaterial that the defendant may have discharged the plaintiff for another reason or that the sufficient cause alleged was not known to defendant when plaintiff was discharged.

Appeal by the defendant, Roger Williams Silver Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of March, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of April, 1913, denying defendant’s motion for a new trial made upon the minutes.

*Stephen P. Anderton,*for the appellant.

*Martin L. Stover,*for the respondent.

Scott, J.:

The action is for damages for the alleged wrongful discharge of an employee. Plaintiff was employed by defendant as salesman by a verbal contract covering the year 1911. He *514was to be compensated by a commission upon all goods sold within a certain territory, with a drawing account of $250 monthly. He was to open an office in the city of New York for the display of wares, amounting in value from $10,000 to $15,000, and was to employ such assistants as he might deem necessary, their salaries being paid, in the first instance by defendant, but charged up against plaintiff’s earned commissions. Plaintiff accordingly did hire an office, and fit it up appropriately for the exhibition of samples of silverware, and hired a young man named Childs, about seventeen years of age, who took charge of the office when plaintiff was absent, as he frequently was in seeking customers. The course of business was such that it frequently became necessary to reship goods to defendant’s factory in Providence, E. I. These were sometimes made up into small packages, and sometimes packed in trunks, the size of which is not stated.

The defendant seeks to justify its discharge of plaintiff upon the ground that he had been negligent and careless of defendant’s interests in the matter of reshipping its goods. The plaintiff himself stated that when he had goods to send away he left it entirely to the boy, Childs, who shipped them. The method adopted by the boy, Childs, was to deliver the packages or trunks, as the case might be, to the elevator attendant, telephoning meanwhile to the express company to send for them. The elevator attendant was furnished with a book of express receipts. If the packages were small ones, they were kept in the elevator car until the express messenger called for them, but if there were trunks to be shipped, the superintendent of the building would not permit them to be kept in the elevator car, and they were put out into a hall on the ground floor to await the coming of the express messenger. This was a public hall opening into the street, and was wholly unguarded, so that trunks left there to await the arrival of the express messenger were entirely unguarded and unprotected, except intermittently when the elevator car happened to be at the hall level. From the time that the packages or trunks, as the case might be, were delivered to the elevator attendant on one of the upper floors of the building where plaintiff’s office was located, neither plaintiff nor Childs gave *515any further attention to them. On June 22, 1911, two trunks full of silverware were thus left in the hallway over night because the express messenger failed or refused to take them on that date. Plaintiff hesitated somewhat to admit that this fact was brought to his attention, but the case on appeal contains a letter written by him to defendant on June 23, 1911, stating that the express company had refused on the previous evening to take the trunks. On June 26, 1911, it became necessary to make another shipment of two trunks, which were delivered in the usual way to the elevator attendant and by him left in the hallway, whence they were stolen, involving a loss of goods to the value of about $2,000.

As it seems to us there can be no doubt upon these facts, which are uncontradicted, that plaintiff was guilty of culpable negligence in his handling of defendant’s business and property. That the haphazard way in which the goods were shipped or delivered to the elevator attendant, not one of plaintiff’s employees, for shipment was careless in the extreme does not seem to be open to question. To leave trunks filled with silverware unguarded in a public hallway for an indefinite length of time was to invite the very disaster that ultimately happened. It is no answer for plaintiff to say that he had nothing to do with the shipments and no knowledge of the manner adopted by his office boy. It was his business to know. The boy was his own servant, selected by himself, for whose negligence he is clearly answerable. And, besides that, it was plaintiff and not his office boy who was intrusted by defendant with the custody of its goods, and it was a part of his business and duty to see to it that proper precautions were taken to safeguard the goods. This dereliction of duty was ample reason and justification for his discharge.

The facts being, as has been said, undisputed, the question whether or not the negligence proved justified the discharge was a question of law for the court and should have led to a dismissal of the complaint, for which defendant duly moved. *(Jerome*v. *Queen City Cycle Co.,*163 N. Y. 351; *Allen*v. *Glen Creamery Co.,*101 App. Div. 306; *Edgecomb*v. *Buckhout,*83 Hun, 168.) The plaintiff claims, and introduced evidence which he considers supports his claim, that his negli*516gence was not the real reason for his discharge, hut that defendant had determined, before the loss of the silver occurred, to discharge him unless he would consent to a reduction in his compensation. The final discharge took place on June 30, 1911, hut there is evidence to the effect that as early as June sixteenth defendant’s president had suggested a reduction of compensation and had intimated that plaintiff would be discharged unless he agreed to it, which he refused to do. It is very probable, therefore, that this refusal to consent to a reduction of compensation was a controlling, and perhaps the only reason for the discharge at the time it was made. All this, however, is quite unimportant and immaterial if there was, as we consider there clearly was, a sufficient reason for the discharge even though that was not the reason assigned by defendant, or the reason which really actuated it, or even if the sufficient cause was not known to defendant when plaintiff was discharged. *(Arkush*v. *Hannan,*60 Hun, 518; *Hutchinson*v. *Washburn,*80 App. Div. 367; *Green*v. *Edgar,*21 Hun, 414; 20 Am. & Eng. Ency. of Law [2d ed.], 32; 26 Cyc. 995; 995; Wood Mast. & Serv. [2d ed.] 235.)

It follows that the judgment and order appealed from must be reversed, and since there is no dispute as to the relevant facts and the question of the justification for the discharge upon these facts is a question of law, the complaint will he dismissed, as it should have been, at the trial, with costs to appellant in all courts.

Ingraham, P. J., Laughlin, Clarke and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs. Order to he settled on notice.