159 N.Y.S. 1031 | N.Y. App. Div. | 1916
The plaintiff sued for damages in that, on March 3,1913, the defendant broke a written contract whereby defendant “hired this plaintiff to work for it ” for the term of three years commencing the 19th day of July, 1911, and agreed to pay him therefor the sum of $60 each and every week for the first year of said agreement, and the sum of $50 each and every week for the remainder of the period. The defendant joined issue by denials, separate defenses and counterclaim.
At trial the plaintiff relied upon a certain provision in an agreement to which he and the defendant were of the parties and of which respondent admits in its printed points notice had been given by a bill of particulars. The more pertinent part of this agreement reads: “That said Sigmund Reiss as compensation for his services as Treasurer of said company shall receive sixty dollars ($60) a week for the first year following this agreement, namely from July 31, 1911, to July 31, 1912, and fifty dollars ($50) a week for the next year following this agreement, namely from July 31, 1912, to July 31, 1913. That thereafter said Sylvan Levy and Sigmund Reiss shall each
The learned counsel for the defendant contended upon the motions at trial, and now contends, that the agreement was one of indefinite hiring under the rule of Martin v. Insurance Co. (148 N. Y. 117) and of Watson v. Gugino (204 id. 540). With this contention I agree. But I think that the plaintiff should have been permitted, if he could do so, to offer evidence to establish a mutual understanding of the parties to the agreement, that it was for a definite term of two years. The rule of Martin’s and Watson’s Cases (supra) was adopted from that stated- by Mr. Wood in his Master and Servant (2d ed. § 136). In the course of his statement that author says: “It is competent for either party to show what the mutual understanding of the parties was in reference to the matter; but unless their understanding was mutual that the service was to extend for a certain fixed and definite period, it is an indefinite hiring and is determinable at the will of either party.” (See, too, Cuppy v. Stollwerck Brothers, 216 N. Y. 591, 594; Gillet v. Bank of America, 160 id. 555; Maloney v. Iroquois Brewing Co., 173 id. 310.)
It is true that the plaintiff did not present the evidence for a ruling thereon, but at the outset the court inquired whether he wished “to make an offer of proof of the circumstances
If the plaintiff could have adduced the proof then he could have applied for an amendment of his pleading to conform to it, in that he sought to recover for breach of a written agreement for a term of two years, which overlapped the date of his dismissal. The discussion in the record indicates that such was the intention of the plaintiff.
The fact that the by-laws of the defendant, as known to the plaintiff, provided that the treasurer should be elected each year and that he could be removed with or without cause by the directors, did not necessarily render such an agreement as was asserted by the plaintiff ultra vires the corporation. (Douglass v. M. Ins. Co., 118 N. Y. 484, citing Martino v. Commerce Fire Ins. Co., 15 J. & S. 520; Cuppy v. Stollwerck Brothers, supra.)
I advise that the judgment be reversed and that a new trial be granted, costs to abide the event, upon the ground that the court should have permitted the plaintiff to offer proof as to
Carr, Stapleton, Mills and Rich, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the event, upon the ground that the court should have permitted the plaintiff to offer proof as to the mutual understanding of the parties that the agreement was for a definite term.