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Farbstein v. Eichmann

Decided: December 8, 1952.


Eastwood, Goldmann and Francis. The opinion of the court was delivered by Goldmann, J.A.D.


Plaintiff sued defendant as executrix of the estate of her former employer Fred Eichmann, an attorney, for the unpaid balance of $2,336 salary earned while she was in decedent's employ. The defense was the statute of limitations. The jury returned a verdict in favor of plaintiff in the sum of $3,067.04, representing the unpaid balance of salary plus interest. Judgment was entered in this amount and it is from this judgment that defendant appeals.

Plaintiff first came to work for decedent in 1922 as his secretary at a salary of $30 a week. She continued in his employ until 1943 when she left to join her husband who was in the service. She returned in the fall of 1945 at a salary of $40 a week and continued to work for Eichmann through 1947, the salary having been increased to $45 in 1946. The

basis of plaintiff's claim is that she was supposed to be paid at the rate of $30 a week or $1,560 a year, from 1932 to 1943, inclusive. According to the schedule annexed to the complaint, prepared by plaintiff and supposed to be a summary of decedent's books, she received only $1,525 in 1932, $1,300 in the years 1933 to 1940, inclusive, and $1,339 for the year 1941, the differences in salary totaling $2,336. Plaintiff received all of the salary to which she was entitled while in decedent's employ during the period 1942 to 1947, inclusive. The complaint was filed in November 1951.

Plaintiff produced four witnesses in support of her claim. Their testimony was general and vague. Decedent's sister testified that her brother at various times told her he owed plaintiff six or eight weeks' salary and didn't know where he was going to get the money; also that "I owe her money -- I promised her $1,000." No time is fixed for these conversations and there is nothing to show for what period the money was due. One Tomei, associated with decedent from 1937 to 1943 and again in 1946 and 1947, testified that decedent had told him he owed plaintiff money, but the time and the amount are not fixed. This witness referred to a "running account" with plaintiff, the basis of this conclusion apparently being that plaintiff's salary had at one time been paid irregularly. He testified that plaintiff "used to put down on a piece of paper that so much was due to her. Then he would pay her crazy sums. I mean, sometimes he would give her $500 and sometimes $600." This undoubtedly took place before 1943, for both plaintiff's schedule and decedent's books indicate regular payments beginning with 1943.

Another associate, Zimmerman, testified that decedent admitted owing plaintiff money, but his testimony clearly related to a period before the termination of his association in 1937. The final witness, Kaplan, was associated with decedent between 1947 and 1951. He testified that about 1948 decedent said he owed plaintiff "a lot of money," but nowhere in his testimony is there any indication of the amount or the nature of the alleged indebtedness.

At the conclusion of this testimony defendant moved for involuntary dismissal because the claim was barred by the statute of limitations. The motion was denied on the ground there was a running account. The court apparently was impressed by the representation of counsel for plaintiff -- not supported by the record -- that there was a payment of $1,060 in excess of the salary due for 1946, thus reviving the debt incurred before 1943.

Defendant moved for judgment (erroneously termed "directed verdict" -- see Rule 3:50) at the close of the entire case because of the running of the statute of limitations and for the further reason that plaintiff had failed to sustain her burden of proof. The motion was denied and the case sent to the jury.

Plaintiff not only was decedent's secretary, but also his bookkeeper. It was she who in regular course made the entries in decedent's ledger, except for the period from 1943 to 1945 when she was not in his employ. Examination of decedent's records shows that the amounts due and the amounts paid plaintiff for salary are identical from 1942 on. Weekly salary payments were regularly made in 1943 and thereafter. If an unpaid balance ever existed, it can only be assumed to have arisen by reason of the difference between the salary stated and the salary paid. On the basis of plaintiff's own proofs, such a balance could only have been created prior to 1942. If any salary difference existed at the end of any year, nowhere in the record is it carried over to the next year as an unpaid balance.

It would appear that during the depression years plaintiff had received her salary irregularly, that weeks would often pass without payment, and then she would be paid in a lump sum. Here we find a possible explanation of decedent's statements to the several witnesses about a debt due to plaintiff. But when this practice ceased is not made to appear. The books themselves do not indicate the possibility of any such practice from 1942 on.

Although defendant at various times during the trial unsuccessfully objected to the admission of certain testimony because it related to transactions with or statements by the decedent (R.S. 2:97-2, now N.J.S. 2 A:81-2), the court's rulings are not now urged as a ground for appeal. The sole issue raised is that the trial court erred in denying defendant's motions for involuntary dismissal and for judgment. The apparent reason for such action was that decedent's books exhibited a running account. Plaintiff contends that the proofs do establish such an account, not barred by the statute of limitations. ...

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