Tucker v. Philadelphia & Reading Coal & Iron Co. — 25 N.Y. St. Rep. 318

Majority

p. 318

Rhodes G. Tucker, App’lt, v. The Philadelphia and Reading Coal and Iron Company, Resp’t.

(Supreme Court, General Term, Second Department,

Filed June 28, 1889.)

Headnote

Contract—Wages—Recovery.

The receiver of the defendant employed plaintiff in 1881, at the rate of $4,500,payable monthly. New receivers were appointed in 1884. Plaintiff continued with such receivers until January 1, 1888, when theproperty was surrendered up. Held, that the original contract was a hiring from month to month; that if plaintiff continued on without a new arrangement payment for the time of service was all that could he demanded.

Appeal from a judgment rendered at the Kings county circuit, dismissing the complaint upon the ground that plaintiff failed to make out a cause of action against the defendant.

p. 319

The action was brought to recover damages for an alleged wrongful discharge. By his complaint plaintiff alleges an employment of his assignor, one James B. McCamant, on or about October 1, 1880, by certain receivers of defendants* property appointed by the united circuit court in Pennsylvania “for the salary of $4,500 per annum, payable in equal monthly payments,” upon which plaintiff seeks to establish a yearly hiring, defendant insisting that it merely states a rate of salary and is not in law good pleading of a. contract of service by the year.

F. O. Cantine, for app’lt; William J. Kelly, for resp’t.

The proof did not sustain the complaint, or establish a cause of action. The receivers of the defendant employed the plaintiff, on the 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. Kothing further was ever said about a term. Kew receivers were appointed in May, 1884, and they reduced the plaintiff’s wages twelve and one-half 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 execnted 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. The Ogdensburg R. R., 52 Barb., 173 .

Judgment should therefore be affirmed, with costs.

All concur.