Dixon v. Bunnell

102 N.Y.S. 775 | N.Y. App. Term. | 1907

Gildersleeve, J.

This action was begun hv the service of a summons on April 4, 1906. The pleadings were oral, the plaintiff complaining for “ Balance for wages, $65.” The defendant offered no proof upon the trial and, at the close of the plaintiff’s case, moved for a dismissal of the complaint upon the ground that the same was prematurely biought. This motion was granted and the complaint dismissed, without prejudice to a new action. The plaintiff’s testimony showed that he was employed on March 17, 1906, at the agreed monthly wages of seventy dollars and that he was discharged on March 22, 1906, the defendant paying him the amount of wages earned up to that time. The plaintiff claims that the action was brought for breach of contract and that, therefore, although the action was begun prior to the termination of the plaintiff’s term of employment, the case not having been tried until after such termination, recovery could he had. Everson v. Powers, 89 N. Y. 527. This would be true if the cause of action set' up was a breach of contract, as the contract of hiring was broken at the time the defendant was discharged; but the complaint set np a claim for “ Balance for wages $65,” and the testimony of the plaintiff was that he was hired by the month, and that there remained due him as wages at the agreed price for his services the sum of sixty-five dollars. It is claimed that the plaintiff’s bill of particulars indicates that the cause of action is for a breach of contract, but a.bill of particulars does not constitute a cause of action, nor can it change it; and, if we could regard a bill of particulars as part - of a complaint, the one in the case at bar is as susceptible of a construction in support of a claim for balance due on wages as for a breach of contract and, as before stated, the theory of the trial was to recover for a balance due as wages. The plaintiff had no cause of action for wages when the action was begun, and the dismissal of the complaint was correct.

MacLean and Amend, JJ., concur.

Judgment affirmed, with costs.