Henry Allan Price, Appellant, v. Press Publishing Company, Respondent

Henry Allan Price, Appellant, v. Press Publishing Company, Respondent. Second Department, March 15, 1907. Contract for services—no consideration for additional compensation— Statute of Frauds — evidence. Under a written contract of employment for three years by which plaintiff was to act as a journalist “in whatever position he may be assigned from time to 'time,” at a salary “ not less than” certain stated sums in ¿itch" successive .year' an. oral promise by the employer to pay a bonus at the end of the term, if the plaintiff will fulfill his contract, 'is" void for lack of consideration. Moreover, when the oral contract to pay said bonus w;asj$nade more than one year before the expiration of the plaintiff's term, it is void under'the Statute of Frauds.as not to he performed within' one-year from*the making thereof. The Statute of Frauds creates á rulelof .evidence, and a void oral contract cannot he proved. . Appeal by the plaintiff, .H.efiry Allan Pjt-ice, from á judgment, of the Supreme Court in faWr of the defendant, entered in the office of the clerk of the county of Kings on the 'Tth day of June, 1906, as resettled by an order entered in said clerk’s office on the 25th day .of June, 1906, upon the dismissal of the complaint, by' direction of the court after a trial at thé Kings County Trial Term. The state of the evidence was as follows: • By a' written contract dated October 20th, 1902, between the defendant and B, the plaintiff’s assignor, the latter bound himself to work for the defendant on its newspaper as a journalist for three years from that date “ in whatever position he may be assigned from time to time” by the defendant, giving “his entire .time,' ability, energy and professional skill; ” and. the defendant employed him for that period, and agreed to pa/ him “ not less than ” $9,000 • the first year, $10,000’ the second and $11,000 the third. B' was the only witness called. He testified that he informed, the. president of the defendant in June, 190-1, that he had entered into -a contract to go into the service of another newspaper at the end of his service with the defendant, that he intended to stay out. his contract with the defendant, that he would not break it, but 'asked him to release him-from it,, as it would be a loss of $1Q,000; ■to him to. carry it out; that the said president told him (in substance) he would lose nothing by staying, that a bonus ,o£ $10,000 would be given him by the defendant'at the end of his service. B served out his time, and this action is to recover the said $10,000. Martin W. Littleton, for the appellant. John M. Bowers \_Manfred W. Ehrieh with him on the brief], for the respondent. [MAJORITY — Gaynor, J.:] Gaynor, J.: This judgment should be affirmed. There was no consideration for the agreement to pay the additional $10,000 at the expiration of the term of sel1 vice, the promisee being already bound by the written contract to serve for the time and the yearly salaries therein fixed (Tolhurst v. Powers, 133 N. Y. 460; Arend v. Smith, 151 id. 502). There is no room for the claim that the doubtful meaning of the contract (if it were doubtful) in respect of the amount of the salaries to be paid (“ not less than,” being the phrase) furnished a . consideration for the new agreement as a settlement of a dispute. It suffices that it was made on no such basis. On the contrary, the employe claimed no right to an increase of salary, and assured, the defendant’s president in advance that he did not intend to quit service under the contract; To keep him froga quitting unless his salary were raised was therefore not the consideration for the new agreement*, ' The new agreement being oral was also void under the statute of frauds, for that it was not by its terms to be performed within one year from the making thereof. It was made in June, 1904, and was not to be performed until October 20th, T905. If it could be said that the employe performed under it, it would be void just the same. If he would have any right of action it would not be on the void agreement, but on a qucmtum meruit (Erben v. Lorillard, 19 N. Y. 299). The statute of frauds creates a rule of evidence, and he could not prove the new agreement at all for lack of writings. Cases where the contract was carried out by both sides, like Kramer v. Kramer (90 App. Div. 176), have no application here. That the - terms of the written contract are that the plaintiff’s assignor was to be paid “ not less than ” the salaries specified in such contract, presents no different case. Those were the salaries to be paid unless the parties agreed upon larger ones, and such .new agreement would still have tó be a valid one under the statute of frauds. The judgment should be affirmed. Present—Hirsohberg, P. .J., Woodward, Gat nor, Rich and Miller, JJ. ' Judgment unanimously affirmed, with costs.