Wood v. Miller

[1] The first question raised is the propriety of considering the bill of particulars in connection with the motion for judgment. This court has held that on a motion for judgment upon the pleadings under section 547 of the Code of Civil Procedure a bill of particulars cannot be considered. Hoey v. Kilduff, 65 Misc. Rep. 554 , 120 N. Y. Supp. 971 . The Appellate Division of the Second Department has recently decided that the bill of particulars could not be considered on a motion made for judgment upon the pleadings at the opening of the trial, citing Hoey v. Kilduff, supra, and Kaufman v. Hopper, 151 App. Div. 28 , 135 N. Y. Supp. 363 . The Appellate Division in this Department, however, has decided that the bill of particulars cam be considered on a motion for judgment on the pleadings under section 547 of the Code of Civil Procedure, saying:

“The purpose of the statute was to save expense and delay. It would be absurd to hold that on a motion for judgment on the pleadings before trial the plaintiff’s bill of particulars could not be considered, although, if the parties are required to prepare for trial, the case will be 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.” Dineen v. May, 149 App. Div. 469 , 471, 134 N. T. Supp. 7, 8.

Considering the case, therefore, upon the complaint and bill of particulars, as presented to the learned justice on the motion for judgment, we are unable to adopt his conclusion. The facts, as disclosed by the complaint and bill of particulars, so far as pertinent, are as follows :

On or about the 23d of August, 1909, the plaintiff and defendants entered into a written agreement, whereby the defendants hired the plaintiff as Eastern advertising manager for a magazine published by the defendants, for the term of one year from August 26, 1909, at a salary of $60 per week; the salary to be paid weekly, but to be deducted from the commissions which were set forth in the contract. The contract concludes:

“It is understood and agreed that if the total amount of business secured by you [the plaintiff] and appearing in the magazine in the issues of November and December, 1909, and January, February, March, and April, 1910, does not aggregate twenty thousand dollars ($20,000), either party has the option of terminating this contract.”

On February 18, 1910, the defendant Miller wrote to the plaintiff, calling his attention to the fact that the total amount of business written by the plaintiff since he joined them was approximately $9,000, of which $3,200 was reservation, on which actual orders had not been received. After dwelling upon the disappointment of the situation, the letter continues:

“I still have every faith in the ultimate success of the magazine, and I judge from your letters that you still have abundant faith that you can make it succeed under your management, and I should be very sorry to have you drop out before success is actually won, if you feel that it can be won within the next year. With this in mind I make the following suggestion: That we wipe out the score up to and including the April issue, and begin again on exactly the same basis' as your present contract, except that the drawing account will be $40 a week. If at the end of the present year, August 26th, your commission on business written after March 7th, and appearing in the magazine, amount to more than the amount of salary drawn beginning March 7th, the balance will be paid you promptly as it accrues. The other terms of the agreement would, of course, remain in force.”

The plaintiff remained in the employ of the defendants, performing the same duties and at the same compensation, until December 9, 1911, when he was discharged. This action was brought for the salary for the remainder of the time up to August 26, 1912, as damages for ai wrongful discharge—the contention of the plaintiff being that the original hiring was for one year; that the letter of February 18th

[2] In passing, although not necessary to the determination, we might observe that, if the first hiring was for a definite.term of six months,, a renewal for that term would be implied, and not an indefinite hiring.

[3] The defendants’ contention is that the letter of February 18th was an exercise of the option contained in the contract that either party might terminate the contract. But the intention to exercise the right reserved by the option is not indicated in the letter, nor had the time specified for the exercise of that right arrived. The right to terminate was given if the total amount of business secured and appearing in the issues from November to April does not aggregate $20,-000. It does not appear from any facts before us that the April issue had appeared in February, and while the amount of advertising secured up to February 18th might give rise to a strong probability that the amount to be secured in the time remaining would not amount to $20,000, the right to exercise the option arose only in the definite ascertainment of the fact from the amount of advertising that appeared in the issues specified. The existence of this probability led the defendants to propose to the plaintiff a modification of the contract in two particulars: The elimination of the option to terminate it on the appearing of the April issue, and a change in the salary or drawing account as against commission from $60 a week to $40 a week. It was, however, expressly stated in the letter of February 18th that:

“The other terms of the agreement would, of course, remain in force.”

The letter of February 18th did not purport to change the term of employment contained in the original contract, but recognizes it by explaining what would be the status of the plaintiff in regard to the commissions “at the end of the present year, August 26, 1910.”

[4] It appears, therefore, that the original hiring was for the term of one year, and by continuing the employment of the plaintiff thereafter at the same rate of compensation as in the first contract, as modified, the implication arises that the contract was renewed from year to year. Adams v. Fitzpatrick, 125 N. Y. 124 , 26 N. E. 143 . The cases relied upon by the defendants are inapplicable to the case at bar.

In Schott v. La Compagnie Generale, 52 Misc. Rep. 236 , 102 N. Y. Supp. 901 , the original contract was for two years, and as a contract for more than one year would have to be in writing, the court could not presume that the original contract was renewed for the period of

In Arcade Realty Co. v. Tunney, 52 Misc. Rep. 148 , 101 N. Y. Supp. 593 , the agreement to give a lease did not refer to the covenants and conditions in the present lease, but that the lease should contain the “usual conditions and covenants,” and as it did not appear that the covenant to pay rent monthly in advance was the usual covenant, it could not be implied from the fact that such a covenant existed in the previous lease.

In Caldwell v. Caldwell Co. (Sup.) 88 N. Y. Supp. 970 , there was no evidence that the prior contract was for a year.

In Martin v. N. Y. Life Ins. Co., 148 N. Y. 117 , 42 N. E. 416 , and Copp v. Colorado Coal & Iron Co., 20 Misc. Rep. 702 , 46 N. Y. Supp. 542 , the original hiring was for an indefinite term, holding that the hiring of a person at a certain sum by the year does not establish the term of hiring, but merely fixes the rate of compensation. ' '

In Daniel v. Manhattan Life Ins. Co., 116 App. Div. 780 , 102 N. Y. Supp: 27, the original hiring was for an indefinite term. This agreement was amended in some particulars, and as amended was “extended for one year.” This was held to change the original indefinite hiring into a contract of hiring for a year.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.