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Gingarelli v. Gingarelli

Decided: March 20, 1940.

LIZZIE GINGARELLI, PLAINTIFF-APPELLANT,
v.
FRANK GINGARELLI, DEFENDANT-APPELLEE



On appeal from the District Court of the city or Orange.

For the plaintiff-appellant, Joseph J. Breitner.

For the defendant-appellee, Max N. Schwartz.

Before Justices Trenchard, Case and Heher.

Trenchard

The opinion of the court was delivered by

TRENCHARD, J. This is the appeal of the plaintiff below from a judgment of the District Court rendered by the trial judge, sitting without a jury, in favor of the defendant below.

The following matters of fact we extract from the agreed state of the case which, we believe, contains nothing further now pertinent.

On March 22d, 1937, the plaintiff and the defendant entered into a written agreement wherein and whereby plaintiff hired and engaged the defendant as "help" or "manager" of a tavern owned by the plaintiff, and they engaged in the tavern business pursuant to that agreement until May 31st, 1938, on a profit sharing basis and thereunder the compensation for services rendered by the defendant was to be fifty per cent. of the profits, after deducting certain running or operating expenses of the business.

Upon the termination of the contract of employment there was outstanding in bills of creditors a total of $952.79. The

plaintiff contended in this suit that she was entitled to receive from the defendant one-half of such amount under the terms of the agreement. The defendant contended that under the terms of the agreement he was not to pay for any such merchandise delivered to the tavern, but that such was the sole responsibility of the plaintiff.

The court held that the plaintiff had no cause of action and rendered judgment in favor of the defendant. The court also rendered judgment against the plaintiff on the defendant's counter-claim for $260 which he claimed the plaintiff had improperly appropriated from the business for other than running or operating expenses.

Now the plaintiff complains that there was error (1) in the denial of the motion for judgment in favor of the plaintiff, and (2) in the denial of plaintiff's motion to dismiss the counter-claim of ...


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