Better v. Prudential Insurance — 16 Daly (N.Y.) 344

Majority

p. 344

Max Better, Respondent, against The Prudential Insurance Company, Appellant.

(Decided July 18th, 1890.)

Headnote

A' stipulation, in a contract for employment, that no action shall be brought by the employe against the employer until ten days after service on the latter of a written statement of the particulars and amount of the former’s claim, is reasonable, and the employe cannot be relieved therefrom merely because he did not understand it when he entered into it.

A stipulation, in such a contract, that no action shall be brought against the employer by reason of any matters arising thereunder after six months from the time of the termination of the employment, is authorized under section 414 of the Code of Civil Procedure, providing for a shorter limitation, by the written contract of the parties, than that prescribed by statute.

Appeal from a judgment of the District Court in the City of New York for the Fourth Judicial District.

The facts are stated in the opinion.

II. 0. Iludlioh, for appellant.

John Fenrell, for respondent.

This action was brought to recover “ money deposited as security ” for plaintiff’s faithful performance, of his duty as a collector for the defendant.

Various grounds for the appeal were argued, but it is necessary to notice. two of them only. By the terms of the agreement between the parties it was. expressly stipulated

p. 345

that the plaintiff should commence no action either at law or in equity until ten days after service on the president or secretary of the defendant of a written statement of the particulars and amount of the plaintiff’s claim against the defendant. There is no claim that this agreement was entered into through any fraud on the part of the defendant. It was reasonable in itself, and if plaintiff did not understand it when he entered into it, it was his own fault, and this court cannot relieve him in that respect. No such notice was given, as appears from-the return, until after the commencement of the action.

In the written agreement it was also expressly stipulated that no suit should be brought against the defendant by reason of any matters arising thereunder after six months after the time of the plaintiff. leaving defendant’s employ. It is clear from the evidence that this action was not commenced within that time. Plaintiff’s counsel claims that such a limitation is not valid in view of the general statutes in relation to the limitation of actions, but we cannot agree with him. By section 414 of the Code of Civil Procedure, it is expressly provided that a shorter time may be agreed upon by a contract in writing. And in Wilkinson v. First Nat. Fire Ins. Co. ( 72 N. Y. 501 -508), and cases there cited, it was held that “ it was well settled, that the parties to a contract may provide for a shorter limitation to actions thereon than that fixed by the general law. Such an agreement is not expressly or impliedly prohibited by the general statute of limitations, and is consistent with the policy upon which the statute is founded.”

We therefore think the judgment should be reversed, with costs to the appellant.

Alleix, J., concurred.

Judgment reversed, with costs.