Daniel A. Mason, Appellant, v. New York Produce Exchange, Respondent

Daniel A. Mason, Appellant, v. New York Produce Exchange, Respondent. Second Department, June 12, 1908. Master and servant — contract of employment construed—hiring for year — effect of holding over. Where a contract has no technical or obscure phrases or latent ambiguities,- its interpretation is for- the court. ■ An-agreement employing an engineer “at a salary of $2500 for the first year and if” the services prove satisfactory, the “remuneration for the second'year and thereafter ” to be §3,000 per annum, makes a hiring from year to year; and if the employee, having continued in service beyond the second year, is discharged without cause,, he is entitled to-recover the salary to the end of the year. Where-a contract of employment for a year at an annual salary is renewed from - year to year by continuance in the service without change in the terms of thecontraót, the employer is obligated to retain the employee for a full-year. Appeal by the plaintiff, Daniel A. Mason, from a .judgment of the Supreme Court in favor of the defendant, entered in .the office' of the clerk of the county of Kings on the 10th day of June, 1907, upon the dismissal of the complaint by direction of the court at the close of the. plaintiff’s case upon a trial at,, the King's County Trial Term. On January 4, 1904, the plaintiff, who had from 1899 until May 10, 1902, been in the employ of the defendant as first assistant engineer, applied to defendant’s house committee for the position- -of chief engineer of .'the-New York Produce Exchange building. The application was general, and stated no length of time for which the employment was desired. The minutes of defendant’s board of managers show the following action taken by its members : “ Superintendent reporting the appointment of Daniel A. Mason as Chief Engineer to succeed the late Engineer, Mr. James A. Connell,1 subject to the approval of the Board, at the following terms recommended by the House Committee,, viz.: That the salary for the first year be $2,500.00, and if the Chief' Engineer proves satisfactory to the authorities of the Exchange, that the remuneration for the second year and thereafter shall be $3,000.00 pér annum; the Chief Engineer having house rent in the building free. On motion the report was received and the appointment confirmed.” On January 7, 1904, defendant’s superintendent wrote plaintiff the following letter: “Dear.Sir.—At a meeting of the Board of Managers held this day you were 'appointed Chief Engineer of the Exchange with house rent in the building free, at a salary of $2500 for the first year, and if your services, prove satisfactory, to the authorities of the Exchange, yo.ur remuneration for the second year and thereafter' will be $3000 per annum. Kindly acknowledge receipt of this advice and oblige, ■“ Yours truly, “ L. B. HOWE, Superintendents The plaintiff commenced work under his appointment on the same dky the resolution was adopted and he was notified, viz., on January 7, 1904. On the.next day he sent the following letter to the superintendent: “Hew; York, January 8z5/t, 1904. “ Mr. L. B. Howe, “ Superintendent, New York Produce Exchange,. . “ Hew York City. “ Dear Sir.— I beg to acknowledge the receipt of your letter of January 7th, 1904, advising me of my'appointment as Chief Engineer of the Exchange. I accept the appointment according to the terms stated in your letter and shall endeavor to perform the duties of the position to the best of my ability and I trust in a manner satisfactory to the authorities of the Exchange. " “Very truly yours, ' “ D, A, MASOH ” T.lie plaintiff remained in the employ of the defendant under this contract until August 1, 1906, when-he was discharged. The first year he was paid a salary of $2,500, the second year $3,000, and for that portion of the third year which he worked, viz., from January seventh to August first, at the' rate of $3,000 per year. This action is brought to recover, as damages, the salary accruing between August 1, 1906, and January 7,1907, at the rate of $3,000 per year, less earnings of $385181 upon the theory that the hiring was from year to year. ' ' - John Willett, for the appellant. William H. Wadhams [Marshal C. Bacon with him on the brief], for the respondent. [MAJORITY — Rich, J.:] Rich, J.: Upon the trial and at the end of plaintiff’s case the learned trial justice granted defendant’s motion to dismiss the complaint, saying: “I hold that this was a hiring at will and the defendant had a right to terminate the hiring at any time, and I grant the motion.” From the judgment accordingly entered this appeal is taken. There being no technical or obscure phrases or latent ambiguities in the contract of employment, its interpretation was a question of law for .the court, and_ the only question necessary for consideration here is whether the law sustains the construction given it by the. learned trial justice. Does the contract establish a hiring for a fixed and definite period ? The decisions in all of the cases cited ' by counsel for the defendant are based upon language which could not by any fair interpretation be held to constitute employment for a fixed or definite term, and the rule of law that hiring at so- much a day,, week, month or year, no time being specified, is an indefinite hiring which the employer might at any time terminate without liability for so doing is applied. The record here presents entirely different languagé, to which the authorities cited are not applicable. It has been held that the use of. the following words in defining tertns of . employment: “for a period of one year from January 1,1891;” “ for one year from May 1,1891;.” to “inspect * * * sewers authorized to be constructed within a year from the date of the letting of the contract; ” “ for one year’s services from the date of this agreement;” “for the period from January 1, 1897, to December 31, 1897,” constituted contracts for a fixed and definite term. (Ball v. Stover, 82 Hun, 460; Lichtenhein v. Fisher, 87 id. 397; Potter v. City of New York, 59 App. Div. 70; Hotchkiss v. Godkin, 63 id. 468; Treffinger v. Groh's Sons, 112 id. 250; affd., without opinion, 185 N. Y. 610.) The rule is 'well established that an agreement for the first year as a fixed and definite period, at an annual salary, is renewed from .year to year by continuance in the service without change in the terms of the employment, and obligates the employer to retain the employee in service full years. (Baker v. Appleton & Co., 107 App, Div. 358.) The contract under consideration provides for the payment of a salary of $2,500 “for the first year” and $3,000 “for the second year and thereafter” if the services rendered during the first year were satisfactory. No distinction exists between the effect of, the words “ for the first year,” “ for the second year,” used in this contract, and the words “ for one year,” “ for a year,” used in the contracts construed in some of the cases, cited. I am satisfied that the legal effect of the words used constituted a hiring from year to year. The defendant contends that the words “ if your services prove satisfactory to the authorities of the Exchange ” apply to the term of hiring, and gave the defendant the right to discharge plaintiff at any time if his services were not satisfactory, thus making the hiring for an indefinite period. This contention cannot be sustained. The words quoted apply only to the amount of compensation to be paid after the first year. Under the contract the defendant was obligated to retain the plaintiff in its employ until the completion of the term of his employment, and if his discharge was unauthorized and wrongful the defendant is liable for the damages the plaintiff sustained as the result thereof. The judgment must be reversed and a new trial granted, costs to abide the event. Jenks, Hooker, (xaynor and Miller, JJ., concurred. Judgment reversed and new trial granted, costs to abide the event. ,