1. Whether the plaintiff was authorized to discharge the defendant from his employment or not was a prominent question litigated upon the trial. The appeal book presents a conflict in the evidence in respect thereto; and the finding of the referee would probably meet with our approval, in that regard, if we were satisfied that no error was committed in receiving evidence which bore upon the question. The practical construction which the parties gave to the contract was to the effect that if the defendant injured any goods, or caused any loss to come to the plaintiff by reason of her unskillful or improper discharge of her duties, she would sustain such loss. When Robert Stoddard, a witness for the plaintiff, was upon the stand, he *134was asked if he had looked up the figures for the year preceding Miss Flynn’s administration, to deterriiine whether the profits were more or less than while she was in the employ of the plaintiff, and he testified that he had; and he also testified that the number of girls kept in the prior period was about eight. This evidence was objected to upon the ground that it was immaterial. The objection was overruled, and an exception taken. He was then asked, “What was the number of girls that was kept by her?” and his answer was, “About twelve.” Thereupon the following question was put to him: “Now, what were the profits of the business for the preceding season, prior to the time when she was employed?” This was objected to, on the ground that there is no foundation laid for the evidence. The objection was overruled, and an exception taken. His answer was: “The profits Were $115.47.” Thereupon the following question was propounded to the witness: “What were the profits, if any, during the season the defendant was employed there?” Objected to on the same grounds as before. The same ruling. “ The loss was $317.11, all for the same period of time as the previous season.” We think this evidence may have borne influentially upon the question of whether or not the plaintiff was warranted in discharging the defendant from his employ, and that its reception was error. Nor do we think the complaint was sufficient to warrant giving this class of evidence, for the purpose of recovering damages for a-breach of defendant’s contract.
Plaintiff criticises the objection that was taken to the evidence. It appears by the appeal book that when this class of evidence was offered the defendant .objected to it as immaterial, and, later on, when the question was propounded, she objected to it upon the ground that there is no foundation laid for the evidence; and, when the question was propounded .as to whether or npt there were any profits during the season that defendant was employed, the objection, as it appears in the appeal book, was in the following language: “Objected to on the same grounds as before.” Under the circumstances, we think the defendant.is entitled to insist that the evidence was immaterial; and we are inclined to a conclusion that we cannot say that the evidence produced no injurious effect to the defendant upon the critical and contested issue relating to her discharge from the employment of the plaintiff.
2. We think the evidence is very meager in respect to some of the items of damage allowed by the referee.
3. We are of. the opinion that the litigation and judgment had before A. E. Oberlander, a justice of the peace, was not a bar to this action. This court has already held that that judgment was rendered without jurisdiction, and has reversed the same. It was, therefore, not binding upon the parties at the time of the trial of this action. Flynn v. Hancock, 46 Hun, 368.
4. When the witness Stoddard was asked as to the account kept with the' defendant, he stated that the original accounts were in court, as we understand the appeal book. Thereupon he was asked, viz.: “Will you" tell us what is due to Mr. Hancock, according to those accounts?” This question was objected to, and the objection was overruled; and the defendant took an exception. Thereupon the witness 'Stated that the accounts were not all kept by him; some by him, and under his direction. It is then stated that the books were offered in evidence, and objections thereto were overruled, and the defendant excepted, and the books put in evidence, marked “Plaintiff’s Exhibit A.” The witness was then interrogated: “'Will, you tell us the amount that she owes Mr. Hancock?” and he answered: “We charged her $92.31, and credited with $75.18, which leaves a difference of $17.63.” It appears by the witness’ testimony that he did not make all the entries in the books. Some of them were made by his brother. Under all the circumstances, we think the books were not competent evidence against the defendant. Judgment reversed on the exceptions, and a new trial ordered in the county court of Onondaga county, with costs to abide the event.