102 Misc. 686 | N.Y. App. Term. | 1918
This is an action for wrongful discharge and has been twice tried. In the first instance plaintiff alleged in his complaint that the defendants employed him as a foreman in their business for one year at a weekly salary of twenty dollars. On the trial it developed that plaintiff was orally engaged on a Saturday and was told that the year of his employment would begin upon the following Monday. , Thereupon defendants moved for leave to plead the Statute of Frauds on the ground that the contract was not to be performed within a year. The motion was denied, and exception was taken. Upon appeal the ruling was held to constitute reversible error, and a new trial was granted. Gottlieb v. Gins, 166 N. Y. Supp. 1041.
In the second trial plaintiff again testified to his employment by the defendant Isidor Gins on the Saturday in question, and in addition thereto told of a further conversation on the Monday that he began work. On this point the record reads as follows: “ By Mr. Schleimer: Q. What occurred on Monday following? Mr. Grunstein: I object as incompetent, immaterial and irrelevant. The Court: Overruled. Mr. Grunstein: I take an exception. A. Monday, I said, ‘ Good morning.’ He said ‘ Good morning.’ I said, ‘ I considered not to work for you, unless you give me a paper or a letter that you are employing me for a year. I shall not have any trouble. ’ He said, 1 Don’t worry, go upstairs, start to work, your year starts from today. Nobody will interfere with you.’ I stood a few seconds and I thought, and I said, * all right, I take your word for it,’ and I went upstairs to work.”
I think the court below has again fallen into error. The conversation which took place on the day plaintiff began work amounts to nothing more than a request for a written agreement, and defendants ’ reply to that request. No new contract was made. The duties of the employee, the amount of his salary, and the mode of payment were not mentioned. All these were governed by the oral transaction of the previous Saturday. In order to constitute a new agreement, in a case like the present, sufficient to take it out of the operation of the Statute of Frauds, it must clearly appear that it was the mutual understanding of the parties that the old contract was given up, or put to an end, and that a new one was accepted in its stead. Such an understanding was not arrived at in this instance either by the words employed by the parties, their acts, or by any logical implication to be drawn from them. Berrien v. Southack, 26 N. Y. St. Repr. 932; Bierman v. Simon, 110 N. Y. Supp. 267; Odell v. Webendorfer, 50 App. Div. 579. Under the circumstances described upon this appeal the transaction
Judgment and order reversed and new trial ordered, with costs to appellants to abide the event.
Guy and Philbin, JJ., concur.
Judgment and order reversed and new trial ordered, with costs to appellants to abide the event.