116 N.Y.S. 375 | N.Y. App. Div. | 1909
This action is for breach of contract. The plaintiff, when a locomotive fireman in the employ of the defendant, was injured, and brought an action for negligence against the defendant. On April 1, 1904, the defendant delivered to the plaintiff the following writing:
“ Erie Eailro'ad Company,
“ Office of the General Manager, Mo. 21 Cortlandt Street,
“ Mew York, April 1, 1904. “Mr. John A. Stanton, Port Jervis, M. Y.:
“ Dear Sib.— In consideration of your withdrawing your action against this company, and your claim growing out of an accident to you on June 17, 1903, upon the payment to you of the sum of Five thousand dollars cash, the Erie Eailroad Company will give you employment as engineer when you become physically able and are otherwise competent and qualified to discharge the duties of that position as required, and as soon thereafter as there is a vacancy, and such employment shall continue while the Company has work of that character to perform, and so long as you remain physically able, competent and otherwise qualified to perform such duties, subject to the right of the Company to discharge you for failure to faithfully perform such duties, to comply with its-rules and regulations or for other misconduct.
“ Yours truly,
“ J. C. STUAET, General Manager.”
A general release was executed by the plaintiff and the $5,000 was paid to him. The plaintiff now' complains that on June 29, 1904, when he was qualified as a locomotive engineer, there was a vacancy, but that the defendant, although requested, neglected and
The defendant appellant makes several points. The question whether the contract was ultra vires was not raised by the pleadings, and, therefore, is not available. (Keating v. American Brewing Co., 62 App. Div. 501; Richmond County Soc. P. C. C. v. City of New York, 73 id. 607.) I think, however, that the contract maybe sustained under our judgment in Usher v. N. Y. C. & H. R. R. R. Co. (76 App. Div. 422; affd., 179 N. Y. 544).
The defendant contends that it has fulfilled its contract. It had a system of employment for firemen and engineers formulated in certain rules and regulations of agreement with the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen. This system contemplated promotion of firemen to engineers in regular order from a list made upon the basis of fitness, record and long service. Under it firemen were advanced to engineers, engineers were assigned to duty according to seniority, and from time to time advancements of firemen were made tern-I porarily and reductions of some engineers were made temporarily, according to the volume of the defendant’s business. The plaintiff was a member of the Brotherhood of Locomotive Firemen and knew of this system and of the agreements. The defendant shows that plaintiff was put upon the roll of engineers, but under its system there had not been during the period in question a vacancy whereby he could be employed. This contention necessarily rests upon the proposition that the defendant only undertook to place the plaintiff on its roll as an engineer, and that his employment as an engineer, whereby he gained his pay, was subject to the same rules, regulations and conditions as regulated that of other engineers. In fine, only the status of engineer on the defendant’s roster was assured by this contract. But the obligation of the contract is absolute save with the express conditions that the plaintiff shall become physically able and otherwise competent and qualified. These conditions accentuate the absolute undertaking in that exceptions prove the rule. If the defendant intended by this agreement
But it is contended that the court erred in submission of the contract to the jury for its interpretation. Even if this were error it would not call for reversal unless the jury erred. (Jones v. De Coursey, 12 App. Div. 172, and cases cited; affd., 161 N. Y. 627.) But I am inclined to think this case is of the class described by Allen, J., writing for the court in White v. Hoyt (supra), where he said that while it is true that the construction of contracts is usually the function of the court and not the jury, yet this is not the invariable rule, and then said : “ When the interpretation depends upon the sense in which words are used, or the sense in which the promisor had reason to believe the promisee understood them, a fact to be determined from the relation of the parties and the surrounding
It is further contended that there was not proof of any vacancy which the plaintiff could have filled during the period covered by the complaint. The defendant’s road foreman, Salley, did testify that between July, 1904, and Rovember 13, 1905, and after the plaintiff had passed the examination, there had been no appointments made to the engineers from the firemen sufficient to reach the plaintiff’s name, no men moved up. “ Betxveen those dates there had been no vacancy in the engineers that lie could get, no vacancy to which these firemen could be moved up.” And he further testifies: “The paper which you hand me, which I gave you this morning, shows as per your request, the engineers that left the service of the Erie Railroad Company from any cause from June 1, 19Ó4, to January 1, 1905, on the Rexv York division. Their going did not exactly leave a vacancy in their positions. It did not make a vacancy as there was still enough men on the list to take care of the business. I did not necessarily have to take some other men to put in their place. There xvere men enough on the engineer’s list to take care of the business. Col. Quick when he left his position was known as an extra engineer. I consider there was no vacancy. When Col. Quick left the employment of our company on December 20, 1904, I do not consider that position that he left xvas vacant and we put some other man in. By the Court: Q. When he went away there was a place vacant 1 A. Well, of course, there xvas a vacancy, one man less. • Q. There was a vacancy open for somebody to fill ? A. Yes. * * * I have seen the xvord 6 vacancy ’ in this contract. I answered the questions just as directly as I can. J. S. Reeder left the employ of our company on September 6, 1904. There xvas a vacancy in his position when he left. These several men on this list when they left that created a vacancy in their position.” On the other hand the plaintiff testifies : “ There were engineers after I made this contract discharged, and other engineers employed or firemen promoted. The wages of engineers was $4.00 on a freight engine.”
It is also urged that the plaintiff did not furnish any report of his' physical examination as instructed. But the plaintiff testifies that
I advise affirmance of the judgment and order, with costs.
Woodward, G-aynor, Rich and Miller, JJ., concurred.
Judgment and order affirmed, with costs.