Dineen v. May — 149 A.D. 469

Majority

p. 469

Richard B. Dineen, Appellant, v. “George” May and “Albert” Jekyll, Doing Business under the Firm Name of May & Jekyll (Names “George” and “Albert” Being Fictitious, Defendants’ Christian Names Being Unknown to Plaintiff), Defendants. Arthur B. Jekyll, Respondent.

First Department,

March 8, 1912.

Headnote

Master and servant — action for wrongful discharge — contract construed — evidence on motion for judgment on pleadings.

A contract of employment contained the following provision: “you [meaning the plaintiff] are to be in all respects subject to such orders as from time to time you may receive from your superiors and to dismissal at any time for incompetence or whenever your dismissal shall in the opinion of the Contractors be for the best interests of the Contractors or the Railway Company. The decision of the said Contractors as to the occasion for any such dismissal shall be final.”

p. 470

In an action for "wrongful discharge from employment, held, that the contract gave the defendant the absolute right to discharge the plaintiff ■with or without reason.

On a motion by defendant for judgment on the pleadings before trial the court may consider the plaintiff’s bill of particulars and whatever might properly be considered on a motion for judgment at the opening of the trial.

Appeal by the plaintiff, Richard B. Dineen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1911, granting the defendants’ motion for judgment on the pleadings, and also from a judgriient entered in said clerk’s office on the 19th day of October, 1911, pursuant to said order.

Herbert D. Cohen, for the appellant.

George H. Savage, for the respondent.

This is an action for wrongful discharge from employment. The complaint alleged that the contract of employment was in writing. A copy of said contract was annexed to the answer.. The plaintiff served a bill of particulars in which he stated that the contract for breach of which the suit was brought was the contract, a copy of which was annexed to the answer. Motion was made for judgment on the pleadings pursuant to section 547 of the Code of Civil Procedure. Thereupon the court gave judgment for the defendants on the ground that the contract gave the defendants the absolute right to discharge with or without reason. The provision in question is as follows: “You [meaning the plaintiff] are to be in all respects subject to such orders as from time to time you may receive from your superiors and to dismissal at any time for incompetence or whenever your dismissal shall in the opinion of the Contractors be for the best interests of the Contractors or the Railway Company. The decision of the said Contractors as to the occasion for any such dismissal shall be final. ”

We think the learned justice at Special Term correctly construed the contract. Cases of agreements to perform work to the satisfaction of an employer are not in point. Here the

p. 471

parties have provided by language too plain to require construction that the decision of the employer shall he final.

A point, which apparently was not suggested at the Special Term, is now made by the plaintiff, namely, that the bill of particulars cannot he considered on a motion for judgment on the pleadings. We have already said that one of the purposes of section 547 of the Code of Civil Procedure was to obviate the necessity of waiting until the trial to make the motion. (Clark v. Levy, 130 App. Div. 389 .) The purpose of the statute was to save expense and delay. It would he absurd to hold that on a motion for judgment on the pleadings before trial the plaintiff^ bill of particulars could not he considered, although, if the parties are required to prepare for trial, the case will he dismissed at the opening. We think that on such a motion as this the court may consider whatever might properly be considered on a motion for judgment at the opening of the trial.

The judgment and order should he affirmed, with costs.

Ingraham, P. J., McLaughlin, LAUGHLiNand Clarke, JJ., concurred.

Judgment and order affirmed, with costs.