trial. The general term reversed both the judgment and the order, and in its order of reversal stated that "the court erred in refusing to nonsuit the plaintiff," but did not state how any other question, either of law or fact, was determined. The plaintiff appealed to this court from the order of reversal, and stipulated that if it should be affirmed judgment absolute should be rendered against him. Where an order of the general term granting a new trial, in an action tried before a jury, and presenting a conflict of evidence, may have been made upon the facts, although the record does not show that it was, it cannot be reviewed upon appeal to this court, because it is impossible to say from an inspection of the record that the court in making the order did not direct a new trial, in the exercise of its discretion to do so upon a review of the facts. Wright v. Hunter, 46 N. Y. 409; Sands v. Crooke, Id. 564; Dickson v. Railroad Co., 47 N. Y. 507; Downing v. Kelly, 48 N. Y. 433; Courtney v. Baker, 60 N. Y. 1; Wagner v. Railroad Co., 70 N. Y. 614; Whitson v. David, 81 N. Y. 645; Bronk v. Railroad Co., 95 N. Y. 656; Pharis v. Gere, 107 N. Y. 231, 13 N. E. Rep. 913; Randall v. Randall, 114 N. Y. 499, 21 N. E. Rep. 1020. In such a case, even if it conclusively appears that the decision of the general term was based on questions of law only, the order is not appealable to this court unless it also appears that that court passed upon the facts favorably to the appellant, because it might result in depriving the party against whom the judgment at circuit was rendered of the review by the general term of the facts to which the law entitles him. Harris v. Burdett, 73 N. Y. 136; Snebley v. Conner, 78 N. Y. 218; Kennicutt v. Parmalee, 109 N. Y. 650, 16 N. E. Rep. 549. In Harris v. Burdett, supra, the court said: "Where exceptions have been taken, and a motion for a new trial has also been made upon the minutes or at special term, the unsuccessful party may waive any further review upon the facts, and appeal to the general term from the judgment, and this appeal will bring up the exceptions only; or, where an appeal is taken from the order refusing a new trial, as well as from the judgment, the general term may reverse the judgment upon the exceptions, and at the same time affirm the order refusing a new trial upon the facts. In either of the cases supposed the order of the general term is appealable. But in no other will such an appeal lie where the trial has been by jury, if controverted and material questions of fact are involved and a motion for a new trial has been made on the evidence. In Voisin v. Insurance Co., 123 N. Y. 120, 131, 25 N. E. Rep. 325, the court, referring to Harris v. Burdett, said that it was not intended to hold in that case "that where the general term have certified in their order that they have examined the facts, and have determined that no reason appears therein for granting a new trial, but that this court have power to review its determination upon the questions of law in the case." Upon the argument of this case, when the question was raised as to the appealability of the order, the counsel for 99 the appellant recognized its force, and himself moved that the appeal be dismissed, so that the plaintiff, as he could not obtain a review in this court, could go back to the circuit and retry the case, but the motion was earnestly opposed by the counsel for the respondent, who insisted that the order should be affirmed and the litigation ended. The question is presented, therefore, whether the appeal should be dismissed, or the order affirmed and judgment absolute rendered against the plaintiff, upon the stipulation contained in his notice of appeal. In each of the cases cited the appeal was dismissed except in Snebley v. Conner and Kennicutt v. Parmalee, where the court refused to dismiss, and affirmed the order upon the ground that the practice is well established and known, but it also took into account the character of those cases, and presumably held that the appeals, even if they could have been heard, would have been fruitless. In Sands v. Crooke, supra, the court said that it was unnecessary to examine the exceptions except to determine whether judgment absolute should be rendered, upon a valid exception being found, or the appeal dismissed if no exception should be held to have been well taken. In Dickson v. Railroad Co., supra, while the appeal was dismissed, the court intimated that thereafter, if parties did not elect to apply for leave to dismiss such appeals, but insisted upon the experiment of submitting the case to the court, they might be compelled to abide by their stipulation and have judgment absolute against them. In Courtney v. Baker, supra, it was said that the appellant should have proceeded to a new trial, or should have procured the order of the general term to be so settled as to deny the motion for a new trial on the evidence, and thus show on the record that it was granted on the exceptions only. In Bronk v. Railroad Co., supra, although both parties desired that the court should entertain the appeal, it refused to do so. In Pharis v. Gere, supra, an order was made dismissing the appeal, unless, within a limited time, the appellant should procure "the order of reversal to be so amended as to give to this court jurisdiction to hear the appeal." It is necessary that parties should heed the repeated admonitions of the court that such appeals as the one under consideration will not be entertained unless it appears from the record, of which the opinion forms no part, that the order was affirmed as to the facts, or the appeal therefrom dismissed, and that the new trial was granted upon the exceptions only. If parties persist in bringing appeals in disregard of this well-established and vital point in practice, it may become necessary to affirm the order instead of dismissing the appeal therefrom, in order to impress upon them and others the futility of such a course. However, no invariable rule upon the subject has yet been laid down, and we do not feel called upon to announce such a rule in deciding this controversy. We are of the opinion that under all the circumstances justice will be promoted in this case by simply Where, in an action for the breach of a contract of employment, defendant answers admitting the contract and plaintiff's discharge, but justifying the latter, on the ground that plaintiff violated the contract, and setting out 12 specifications of acts of violation, evidence of other acts of misconduct on plaintiff's part than those pleaded is inadmissible. Affirming 13 N. Y. Supp. 495. ment by the defendant until December 31, 1889; proved that he was discharged February 6, 1889, while engaged in the performance thereof; showed that after due effort he could not obtain other employment, and rested. Thereupon the defendant introduced evidence tending to support the 12 specifications of misconduct and unfaithful service on the part of the plaintiff set forth in its answer, and in addition thereto offered to show other acts of misconduct and unfaithful service on his part not alleged in the answer. Exceptions to the ruling of the court excluding this evidence, upon the ground that the facts bad not been pleaded, present the main question arising upon this appeal. No effort was made to amend the answer, but the defendant rested, so far as the point under consideration is concerned, upon the strength of its exceptions. The defendant insists that this evidence was competent under its denial of the averment by the plaintiff that the defendant broke the contract, and, without right or cause, dis until the expiration of the period for which he was hired, and seek to recover under the contract the wages therein agreed upon, but he commenced this action within a few days after his discharge, to recover the damages caused thereby. It was necessary for him to aver and prove that he was discharged before his term of service, as provided by the contract, had expired; but it was not necessary that he should, specifically or in express terms, aver or prove that he was discharged without cause, as a discharge before the determination of the stipulated period was prima facie a violation of the agreement. Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment entered upon the verdict of a jury, and also affirmng an order denying a motion for a new trial. Action to recover dam-charged him. The plaintiff did not wait ages for breach of a contract of employment by the wrongful discharge of a servant by his master. By a written agreement between the parties, sealed and dated June 8, 1887, the plaintiff agreed to faithfully, diligently, and to the best of his ability, serve the defendant as superintendent of its pyrotechnic factories, from July 14, 1887, until December 31, 1889, for the sum of $4,000 per year, payable in equal weekly payments. The plaintiff alleged in his complaint that he" entered upon said service, and continued therein until on or about February 6, 1889, when the defendant broke the said contract, and, without right or cause, discharged" him from its said employment, by reason whereof he sustained damages to the amount of $3,367. The defendant, by its answer, admitted the contract, but denied that it broke the same, or that it discharged the plaintiff without cause, and alleged that "the plaintiff was discharged by the defendant on or about the 6th of February; 1889, for cause, and because said plaintiff broke and violated said contract, and did not fulfill the terms, conditions, and obligations" thereof on his part; that he "did not faithfully and diligently serve the defendant, as superintendent of its factories, and did not fill said position to the # in this, tobest of his ability, wit." Then followed 12 specifications, separately stated, of acts alleged to have been done by the plaintiff in violation of said agreement, including disobedience of orders, conversion to his own use of defendant's property, conspiracy against its Evidence was interests, and the like. * given by the parties tending to sustain the allegations in their respective pleadings, and the jury, upon this conflict of testimony, found for the plaintiff, awarding him all that he claimed. Leslie W. Russell, for appellant. William J. Gaynor, for respondent. VANN, J., (after stating the facts as above.) Upon the trial of this action the plaintiff read in evidence the contract in question, which provided for his employ The law will not assume that a servant has been derelict in duty from the fact that his employer discharged him, but upon proof that he was discharged while engaged in the performance of the contract, and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal. Such a defense confesses the contract and the discharge, but avoids the cause of action by showing new matter which, by the command of the statute, must be pleaded. Code Civil Proc. § 500; Code Proc. § 149; McKyring v. Bull, 16 N. Y. 297. Any other rule, as was said by this court in the case cited, would "lead to surprises upon the trial, or to an unnecessary extent of preparation." A general or a specific denial controverts only "material" allegations, or such facts as the plaintiff would be compelled to prove to establish his cause of action. Griffin v. Railroad Co., 101 N. Y. 348, 354, 4 N. E. Rep. 740; Fox v. Turner, 2 N. Y. Supp. 164. It does not put at issue immaterial averments, because the Code does not require that they should be denied. Section 500. The language of the statute is that the answer "must contain a *** denial of each material allegation of the complaint controverted by the defendant,' etc. That the plaintiff was discharged before the contract had expired was material. That he was discharged without cause was immaterial, so far as the com WEBBER, Respondent, v. LESTER et al., Appellants. (Court of Appeals of New York. Feb. 24, 1891.) Tracy C. Becker, for appellants. Geo. Wadsworth, for respondent. No opinion. Judgment affirmed on opinion of DANIELS, J., below, without costs in this court. All concur. See 10 N. Y. Supp. 258. PEOPLE ex rel. GRANT et al., Appellants, v. WARNER, Respondent. (Court of Appeals of New York. Feb. 24, 1891.) James A. Douglas, for appellants. Francis A. Williams, for respondent. No opinion. Order affirmed on opinion of BARKER, J., below, with costs. All conSee 3 N. Y. Supp. 768. cur. (two cases.) (Court of Appeals of New York. Feb. 24, 1891.) J. I. Sayles, for appellant. E. D. Mathews, for respondent. plaint was concerned, because a recovery could be had without proving it. It was sufficient for the plaintiff to allege a violation of the contract by the defendant. His effort to anticipate and deny any possible defense to his cause of action was surplusage. Moreover, the main object of a pleading is to notify the adverse party of the facts relied upon by the pleader to constitute a cause of action or a defense. The improvement sought to be effected by the system of pleading provided by the Code was to enable each party to know precisely what he would be required to prove upon the trial. Accordingly no pleading should be so framed as to mislead or deceive the adverse party, by furnishing him only a part of the facts relied upon. Yet this would result from the construction of the pleadings in this action contended for by the defendant, because the effect of a denial that the discharge was without cause, in connection with 12 affirmative specifications of good cause for the discharge, would naturally induce the belief DRYER, Appellant, v. BROWN, Respondent, that the acts or omissions so specified were all that the plaintiff would be called upon to meet. It was a fair inference that evidence as to other derelictions was not embraced by the answer, and could not be received. The defendant could not show, as it tried to, acts of gross immorality on the part of the plaintiff, without suggesting them in the answer, although many other wrongful acts of less importance were alleged with great fullness and precision. A party who has, either intentionally or otherwise, led his adversary to believe that certain enumerated acts only would be proved, will not be permitted to prove other acts of which no notice was given. In a case recently decided by this court, the complaint averred the performance of all the conditions precedent contained in a contract. The answer denied all allegations not thereby admitted, and affirmatively alleged that the plaintiff had not performed all the conditions precedent, and enumerated certain things which, as it specifically alleged, showed that the conditions had not all been performed. The court held that although the denial, "if left by itself, might have made au issue as to each condition precedent in the contract," still the issue was "confined to the particular breaches of condition specifically referred to." Reed v. Hayt, 51 N. Y. Super. Ct. 121, 128, affirmed on the opinion LEDERER, Appellant, v. ADAMS, Respond of the general term in 109 N. Y. 659, 17 N. E. Rep. 418. That case goes further than is necessary in the decision of the case in hand, because there the averment that the conditions precedent had all been complied with was a substantive part of the complaint, whereas here, as we have seen, the allegation that the discharge was with- | out cause was not essential to a recovery by the plaintiff. We think that the new matter that the defendant sought to prove in confession and avoidance of the contract, and the discharge was properly excluded by the trial court, upon the ground that it had not been alleged in the answer. We have examined the other exceptions, but find none that require comment. The judgment should be affirmed, with costs. All concur. No opinion. Appeal dismissed, without costs. All concur. See 5 N. Y. Supp. 486; 9 N. Y. Supp. 703, mem.; 10 N. Y. Supp. 53. MARX et al., Appellants, v. GROSS et al., (Court of Appeals of New York. Feb. 24, 1891.) No opinion. Appeal dismissed, with costs. All concur. See 9 N. Y. Supp. 719. WILKINSON, Respondent, v. PADDOCK et al., (Court of Appeals of New York. Feb. 24, 1891.) No opinion. Order affirmed on opinion of MARTIN, J., with costs. All concur. See 11 N. Y. Supp. 442. ent. (Court of Appeals of New York. Feb. 24, 1891.) Edward C. Boardman, for appellant. John J. Adams, for respondent. No opinion. Order affirmed on opinion below, with costs. All concur. See 11 N. Y. Supp. 481. PEOPLE V. EQUITABLE GAS-Light Co. On application for counsel to prosecute action. No opinion. Appeal dismissed, with costs. All concur. PEOPLE, Respondent, v. MYERS, Appellant. (Court of Appeals of New York. Feb. 24, 1891.) David J. Dean, for appellant. W. A. Poste, for respondent. No opinion. Order affirmed on opinion below, with costs. All concur. See 3 N. Y. Supp. 365. STORY, Appellant, v. UNITED LIFE & ACC. (Court of Appeals of New York. Feb. 24, 1891.) No opinion. Judgment affirmed, with costs. All concur. See 4 N. Y. Supp. 373. Appellant. THOMPSON et al., Appellants, v. DATER et FITZGERALD, Respondent, v. CITY OF TROY, al., Respondents. (Court of Appeals of New York. Feb. 24, 1891.) Wm. P. Cantwell, for appellants. Nelson Davenport, for respondents. No opinion. Appeal dismissed, with costs. All concur. See 10 N. Y. Supp. 613. WHEELER et al., Appellants, v. EMMELUTH, (Court of Appeals of New York. Feb. 24, 1891.) No opinion. Order affirmed, with costs. All concur. See 12 N. Y. Supp. 58. METROPOLITAN CONCERT Co., Limited, v. (Court of Appeals of New York. Feb. 24, 1891.) William J. Roche, for appellant. Frank 8. Black, for respondent. No opinion. Judgment affirmed, with costs. All concur. See 7 N. Y. Supp. 103. In re LOOK'S ESTATE. (Court of Appeals of New York. Feb. 24, 1891.) H. Aplington, for appellants. John G. Milburn, for respondents. No opinion. Judgment affirmed, with costs. All concur. See 7 N. Y. Supp. 298. BERGEN, Respondent, v. MANHATTAN RY. (Court of Appeals of New York. Feb. 24, 1891.) (Court of Appeals of New York. Feb. 24, 1891.) No opinion. Order affirmed, with costs. No opinion. Judgment affirmed, with costs. All concur, except EARL, PECKHAM, and GRAY, JJ., dissenting. See 8 N. Y. Supp. 931, mem. BECKWITH, Respondent, v. NEW YORK CENT. BARTHOLOMEW, Respondent, v. POUGH & H. R. R. Co., Appellant. (Court of Appeals of New York. Feb. 24, 1891.) C. D. Prescott, for appellant. S. Cromwell, for respondent. No opinion. Judgment affirmed, with costs. All concur. See 7 N. Y. Supp. 719. KEEPSIE & H. FERRY CO., Appellant. (Court of Appeals of New York. Feb. 24, 1891.) Thompson & Lown, for appellant. Allison Butts, for respondent. No opinion. Judgment affirmed, with costs. All concur. See 7 N. Y. Supp. 785. BECKWITH, Respondent, v. NEW YORK CENT. HESS et al., Appellants, v. WASHINGTON & H. R. R. Co., Appellant. (Court of Appeals of New York. Feb. 24, 1891.) C. D. Prescott, for appellant. S. Cromwell, for respondent. No opinion. Judgment affirmed, with costs. All concur. See 7 N. Y. Supp. 721. FIRE & MARINE INS. Co., Respondent. (Court of Appeals of New York. Feb. 24, 1891.) NARY, Respondent, v. NEW YORK CENT. & McCoy, Appellant, v. EMPIRE WAREHOUSE W. R. Co., Appellant. (Court of Appeals of New York. Feb. 24, 1891.) P. W. Cullinan, for appellant. Elisha B. Powell, for respondent. No opinion. Judgment affirmed, with costs. Co., Limited, Respondent. (Court of Appeals of New York. Feb. 24, 1891.) No opinion. Judgment affirmed, with All concur. See 9 N. Y. Supp. 153. costs. |