Stein v. Kooperstein

52 Misc. 481, 102 N.Y.S. 578

Opinion

Blanchard, J.

This is an appeal from a judgment recovered by the plaintiff for alleged wrongful discharge from the defendants’ employment. The contract of employment provided that the defendants agree to pay to the plaintiff “ at the rate of seven hundred and eighty ($780) dollars for the first six months, commencing January 22nd 1906, being thirty ($30) dollars per week, payable weekly, and at the rate of nine hundred and ten ($910) dollars for the second six months being thirty five ($35) dollars per week, as and for his salary, payable weekly.” The court directed judgment for the plaintiff, who was discharged March 5, 1906, for $960, on the theory that the contract stated a yearly hiring. According to the rule stated in Martin v. New York Life Ins. Co., 148 N. Y. 117, “hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve * * * A contract to pay one $2500 a year for services is not a contract for a year, but a contract to pay at the rate of $2500 a year for services actually rendered, and is determinable at will by either party.” The contract in the present case clearly falls within the rule thus stated; moreover, ihe contract was made in January, 190(5, the discharge occurred in March, the action was brought in April and tried in October. If the contract of employment had been for a year, as the plaintiff contends, he would be entitled to recover only for the damages he had sustained up to the time of this trial of the action; and it was error not to submit the question of damages to the jury. The judgment must be reversed and a new trial ordered.

Gildebsleeve and Dayton, JJ., concur.

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