Anderson v. Blackwood

5 A.D.2d 918, 172 N.Y.S.2d 191, 1958 N.Y. App. Div. LEXIS 6447

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 27, 1958
• Status: Published

Opinion

Appeal by defendant from a judgment of the Supreme Court entered in St. Lawrence County upon the verdict of a jury. There is also a separate appeal from an order of the Supreme Court denying defendant's motion to eliminate certain interest which was included in the judgment. The action was brought to recover an alleged balance due to plaintiff for salary as an instructor at the defendant college. The answer asserts payment in full of all sums due pursuant to the agreement between the parties. Pursuant to an oral agreement the plaintiff began teaching at Clarkson College on November 2, 1947, at a salary of $3,400 per year. It was the custom of the college to pay salaries monthly on the 15th day of each month. Plaintiff received and cashed a check for one tewelfth of the $3,400 each month until September 15, 1948, prior to the end of a full calendar year of employment. On that day his salary was orally increased to $3,500 per year, and thereafter he was paid monthly one twelfth of that figure until July 1, 1949, when his salary was increased to $3,600 per year, and thereafter he was paid at the monthly rate of one twelfth of that figure. On June 8, 1950, his salary was increased to $3,800 per year, and effective July 1, 1951, his salary was again increased to $4,100 per year. Plaintiff voluntarily severed his connections with Clarkson College on June 10, 1952, but was paid for the full month of June, 1952. During the entire period of plaintiff's employment the plaintiff received and cashed monthly checks for one twelfth of the stated salary without protest. He taught at the college for 56 months and was paid for 56 months at the agreed rate. It does not appear from the record that he ever made any demand for any additional payment until this action was commenced. He now contends that he is entitled to the full salary at each agreed figure for the full year from its effective date, and that hence a balance is due him. We think that the meager evidence as to the exact terms of the oral contracts, plus the undisputed evidence as to the aets and conduct of the parties, conclusively establishes that both parties understood that the agreement called for equal monthly payments at the rate of the annual salary agreed upon, and by their aets and conduct both parties acquiesced in such an arrangement, and that plaintiff has been paid in full in accordance with the understanding of the parties. The judgment is reversed, on the law and the facts, and the complaint dismissed, without costs. The appeal from .the order relating to interest is dismissed as academic.

Foster, P. J., Bergan, Coon and Gibson, JJ., concur.