Page v. Cohen
140 N.Y.S. 935
N.Y. App. Term.
1913
Check Treatment
Per Curiam.

The defendant conceded that the plaintiff was duly elected at the election of March 27, 1907, lodge physician for the period of one year. This election constituted an employment which was duly recorded by defendant in its lodge proceedings, and this •record took the case out of the Statute of Frauds. The form of the action was settled on the former appeal determined by this court in 76 Miscellaneous Reports, 567. Mr. Justice Jaycox, writing for the court, said: “ His (plaintiff’s) removal is null and void; therefore, he was court physician during all his term of employment. He was ready and willing to perform his duties as such. ” We think that an irrelevant issue was unduly forced upon the plaintiff, who protested over and over again that he stood upon his contract which, as we read it, entitled him to twenty-five cents per member of the defendant lodge for the last quarter of the year, the period now in suit. Whether treated as an action *239for wages or for breach of contract, the plaintiff on the case made was entitled to recover. There was no necessity for demanding that plaintiff elect on which ground he expected to recover. The period of his service having passed, and his compensation having been fixed by special contract, nothing remained to be ascertained except the number of members on which his compensation was based, and his readiness and willingness to perform, his evidence of which was erroneously excluded. All of the separate defenses have been disposed of on the former appeal except that the plaintiff had assigned his claim. This, if true, would defeat him.

Present: Garretson, Blackmar and Kapper, JJ.

Judgment reversed, new trial ordered, with costs to appellant to abide event.