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Tucker v. Philadelphia & Reading Coal & Iron Co.

6 N.Y.S. 134 Court N.Y. Gen. Term Decision date 1889-07-02 English

Delivered by Barnard, P. J.

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p. 134
Tucker v. Philadelphia & R. Coal & Iron Co.
(Supreme Court, General Term, Second Department.
July 2, 1889.)

Headnote

Master and Servant—Contract of Hiring.
Receivers of defendant employed plaintiff in September, 1881, at $4,500 per annum, payable monthly. In May, new receivers were appointed, who continued plaintiff’s employment at a reduced salary. Held, an employment by the month.
Appeal from circuit court, Kings county.
Action by Bhodes G-. Tucker, assignee of James B. McCamant, against the Philadelphia & Beading Coal & Iron Company on a contract of hiring. The complaint was dismissed, and plaintiff appeals.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
F. O, Cantine, for appellant. William J. Kelly, for respondent.

The proof did not sustain the complaint or establish a cause of action. The receiver of the defendant employed the plaintiff on the

p. 135
15th of September, 1881, at the rate of $4,500 per annum, payable monthly. The salary was to be $4,500 per year; “that was all that was said.” . The plaintiff had been in the employ of the receiver before this, and had resigned. After the receiver accepted the resignation he was re-employed at a higher salary. Nothing further was ever said about a term. New receivers were appointed in May, 1884, and they reduced the plaintiff’s wag-'s 12-’- per cent. The company in December, 1887, was restored to the property. The plaintiff continued with the said receivers until they surrendered the property, about the 1st of January, 1888. The plaintiff was discharged, and paid up to the 1st day of January, 1888. The contract with the receiver originally did not import a hiring for a year as a term, but only one from month to month, at a yearly rate of $4,500. The plaintiff worked out the term, and the contract did not renew itself at the end of the term. After that, assuming the original hiring to have been for the fixed term of one year,—and it could not be made longer by paroi,—the agreement became an executed one. If the plaintiff continued" on without a new arrangement, either party could terminate the contract at pleasure, and payment for the time of service is all that could be demanded. Morrison v. Railroad Co,, 52 Barb. 173 . Judgment should therefore be affirmed, with costs.

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