#### Alfred C. Blackett, Appellant, *v.*Thomas C. Platt, as President of the United States Express Company, Respondent.

(Supreme Court, Appellate Term,

June, 1900.)

Payment — Hot made out where there is a compulsory deduction from wages — Services.

Where an express company makes a monthly deduction from the wages of a driver to repay it for his alleged loss of a package, the fact that he, under protest, receipted each month for his wages in full, does not show that he has been paid them nor preclude him from recovering from the company the amount it withheld.

*732Appeal from a judgment dismissing the complaint rendered in the Municipal Court of the city of New York, eighth district, borough of Manhattan.

Charles H. Smith, for appellant.

Walter E. Wood, for respondent.

*Per Ouriam.*

The plaintiff sues to recover the sum of fifty dollars for an unpaid balance of wages which he alleges the defendant owes him for services as driver of an express wagon, rendered during a period of ten months. It appears that the plaintiff, during the period above mentioned and for some time prior thereto, had been in the service of the defendant in the above-mentioned capacity at a monthly wage of forty-five dollars. A question arose as to the delivery of a package by the plaintiff. The latter claimed that the goods had been delivered by him; the consignee coi> tended that he had not received them. The company instituted an inquiry, and upon evidence apparently satisfactory to its officers, recognized its liability for the lost package, and paid the sum of fifty dollars to the consignee therefor. It further determined for itself that the plaintiff was liable for the loss and for the discharge of the amount thus claimed; directions were accordingly given to the officer who had charge of its pay-rolls to deduct five dollars a month from the wages of the plaintiff until the sum of fifty dollars had been realized therefrom. The plaintiff on every pay day was presented with the pay-roll and required, first to receipt for the full amount of his wages, and was then given only the difference between that amount and a proportionate part of the fifty dollars which the company claimed he owed it under the circumstances above mentioned. "Upon the trial all of these receipts were put in evidence, and it was claimed that they were evidences of payment which constituted a complete defense to the action. It was also claimed that the plaintiff had consented to the deductions which had thus been made. But there is no evidence of any such consent beyond the .inference which is sought to be drawn from the fact that the plaintiff continued to receipt for the larger and to accept the smaller sum on every pay day for ten months. The plaintiff himself testifies that he did object to having his pay docked in this fashion and protested against it, but that he *733was constrained to give the receipts and to submit to the shortness in his pay, owing to his necessities. Obviously, then, the money claimed by the plaintiff was never paid to him by the defendant, and, assuming that payment, although not specially pleaded, might still be shown under the pleadings as they stand, the proof is wanting to establish it. Certainly the receipts signed by the plaintiff are not conclusive, and having been indisputably shown to be untrue so far as the claim in suit is concerned, they are without probative force. Had the full amount been paid into the hands of thé plaintiff, and if he then had voluntarily paid back to the company the amount which it was claimed that he owed, a different situation would have been presented. But this was not done. H it be urged that the acceptance and retention of the lesser amount by the plaintiff might under the circumstances be regarded as an accord and satisfaction, the answer to that is that no such defense has been pleaded. Mor under the pleadings, was the company entitled to litigate the question whether the plaintiff was or was not responsible for the lost package. To be sure an attempt was made to do this, but the evidence was mostly hearsay and while, doubtless, sufficient to satisfy the company of the plaintiff’s responsibility in the matter, it falls short of the standard of legal proof essential to support a judicial finding against the plaintiff. Upon the proofs bearing upon the issues raised by the pleadings, the plaintiff was entitled to judgment, and the trial justice erred in dismissing the complaint. The judgment must, accordingly, be reversed.

Present: Beekmah, P. J., Giegeeich and O’Goemau, JJ.

Judgment reversed and new trial ordered, with costs to appellant to abide event.