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Adams v. Fitzpatrick

56 N.Y. Super. Ct. 580 24 Jones & S. 580 Court N.Y. Super. Ct. Decision date 1889-04-15 English

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p. 580
CHARLES M. ADAMS, Respondent v. JAMES G. FITZPATRICK, et al., Appellants.

Headnote

Contract for service for one year at a stated price. Continuance of the same beyond the stated time, when presumed from the act of the parties.
When the contract of service is for a fixed period and an annual salary, and the service is continued beyond the period without anything being said between the parties about the terms of such continuance, the presumption is, and the law implies, a second employment for the term of one year at the same salary, unless there is something in the circumstances that overcomes the implication.
Before Sedgwick, Ch. J., Truax and Dugro, JJ.
Decided April 15, 1889.
Statement of the case by the Court.
On Oct. 15th, 1885, the defendant engaged the plaintiff as a salesman from that day until Nov. 1, 1886, at the rate of §3,000 per year. The plaintiff entered upon the employment on the day of the engagement and was paid at the rate of §3,000 a year until the 1st" of November, 1886. After that date, nothing being said "by either party about the terms of a continuance of the employment, the plaintiff remained with the defendant receiving pay at the same rate as before.
On March 24, 1887, the defendant notified the plaintiff that he would be discharged on the first of May following; that his engagement must then cease, and that his services were thereafter no longer needed. On the latter day the plaintiff left the defendants’ employ in compliance with the notice. From the time of this notification of discharge the plaintiff sought diligently for other similar positions, and in the latter part of April obtained one for a period of six months, to begin May Í, 1887, with a salary at the rate of §2,000 per year.
p. 581
The plaintiff brings this action for damages, claiming under an implied contract for a year from November 1, 1886.
Donohue, Newcomhe <6 Cardozo, attorneys, and Stephen G. Baldwin, of counsel for appellants.
Dill, Chandler & Seymour, attorneys, and James B. Dill, of counsel for respondent.

The prior employment was at a fixed salary, and as the services continued beyond the period fixed by the original contract the presumption is that the salary was at the same rate. Vail v. Jersey L. F. M. Co., 32 Barb. 567 ; Ross v. Hardin, 79 N. Y. 84 .

On the facts there is no legal presumption that the second contract of service was for the same period of time as the first.

In cases where an employment is continued immediately after the performance of a prior contract of service of the same kind for a term longer than one year, the law implies a second employment for the term of one year, unless of course there is something in the circumstances of the case which overcomes this implication; Greer v. Peoples’ Telephone &c. Co., 50 Super. Ct. 517.

The appellant at the trial took another exception than that alluded to above, and presented it in his points. The exception has been examined and no error is found to have been made by the referee.

The judgment should be affirmed with costs.

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