#### Nora M. Egan, Respondent, *v.*Theodore J. Chabot, Appellant.

First Department,

March 6, 1908.

Master and servant — contract of employment — evidence showing hiring by week.

Action to recover damages for the breach of an oral contract employing the ■plaintiff as a hat trimmer examined, and *lield,*that the hiring was by the week and not for the season, and that the motive of the defendant in discharging the plaintiff was immaterial.

Houghton, J., and Patterson, P. J., dissented, with opinion.

Appeal by the-defendant, Theodore "J. Chabot, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of New York on the 25th day of October, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the.lOtli day of October, 1907, denying.the defendant’s motion for a new trial made upon the minutes.

*Louis O. Van*Doren, for the appellant.

*Joseph M.*JEtersberg, for the respondent.

Laughlin, J.:

The action is brought to recover damages for a breach of a contract. The plaintiff alleges that on or about the 25th day of February, 1904, she was ■ employed by the defendant as a designer and trimmer of hats for the season to terminate on. the 1st day of July, 1904, at the' rate of twenty-five dollars per week, and that after working pursuant to the contract until the thirtieth day of April, she was discharged without just cause, to her damage in the sum cf ‘ *594two hundred dollars. The answer was a general denial. Upon the trial the plaintiff testified that she had been a designer and trimmer of hats for about fifteen years and was conducting a millinery .busi-. ness of her own on Alexander avenue in the Bronx at the time of the negotiations resulting in.her employment by the defendant; that she came to the defendant’s store in the month of February, 1904, and applied to him for the position of trimmer occupied by a former employee who had left the defendant’s employ; that she informed the defendant that she was selling out her business; that she had several customers in the Bronx and that she' would start on twenty-five dollars a week; that the defendant replied that he had made up liis mind iiot to have aiiy more high-priced trimmers, but that he would think about it and let her know ; that a few days thereafter she received a letter from the defendant asking her to call, and on calling he offered her twenty dollars a week, which she declined and stated that twenty-five dollars was very low, whereupon “ he said he would give it. to me;” that she then informed him that she “only wanted a season, until the 1st of July,” when she was going to Europe, and he said, “Well, all right,” whereupon she remarked, “ I suppose you do not have really- any business the 1st of July,” to which he responded, “ Sometimes, if you leave some-? body after you for the workroom for July, it will be all right;” that the following conversation then took place between them; “ I. said I had a very nice young lady in mv own employ who was saleslady ■ and I would recommend her very highly and take her up* there and he asked me what salary she would get, and I said $8, and he said ‘All right, bring her ¡along,’ and that is the way we made our arrangements, and I brought Miss O’Neil along with me and I entered into t-liis employment on the 25th day of February, 1904; ” that after being in the defendant’s employ for two months she was discharged. We are of opinion that this conversation constituted a hiring by the *week*and that the plaintiff was iiot employed for the *season..*The plaintiff’s suggestion about the season occurred after the defendant agreed to employ her at twenty-five dollars per wéek. It amounted merely to a notification that she could not remain longer than the first of July. His assent to that suggestion did not change the agreement and make it a hiring for the season. Manifestly it was the - intern*595tion of the defendant to keep the plaintiff in his employ until the' end of the season, provided her services were satisfactory and he needed them, but he did not obligate himself to continue the employment throughout the season. Moreover, she had no right to expect that a definite contract of employment for the season had been made. He said nothing about, hiring her otherwise than by the week. She did not decline to work by the week nor did she exact as a condition of entering defendant’s employ that he agree to hire her until the first of July. It does not appear that he had any personal knowledge with respect to her ability and it is manifest that the nature of the work was such that he could not tell, without a trial, whether her services would be satisfactory. In these circumstances, the motive of the defendant in discharging the plaintiff is immaterial. It may be observed, however, that the discharge was not arbitrary but was owing to her failure to procure satisfactory' references after she had entered upon the employment.

It follows that the judgment and order should be reversed and a new trial granted, with costs to appellant tó abide the event.

McLaughlin and Scott, JJ., concurred; Patteeson, P. J., and Houghton, J., dissented.

Houghton, J. (dissenting):

I think the plaintiff proved a definite hiring to July first, and that the jury were justified in finding that the defendant engaged her services for such definite period and not by the week.

It is true the plaintiff did not testify in" exact words that she told the defendant she would remain in his employ until the first of July, at the stipulated weekly salary, or that the defendant said in precise terms he would hire her up to that time; but the whole trend of her evidence, as well as that of -the defendant, is to that effect. Nor did she prove, as she doubtless could, that there was a well-recognized spring and summer season in the millinery business, beginning about the first of March and ending some time in midsummer, and that the defendant, as well as others in the business, customarily engaged their "expert trimmers and heads of departments by the season and not by the week.

When the plaintiff had her first interview with the defendant on the fifteenth of February, she testifies that she told him she was *596about selling out- her own business, and understanding that the “ position of trimmer ” in his establishment was vacant, she desired to apply for it, and that the defendant asked her what “ salary ” she wanted, and she told him twenty-five dollars a week, and informed him that as she was going to Europe on the first of -July, she only “ wanted a season ” until that time, and that the defendant responded “ all right,” and upon the .plaintiff remarking that she supposed there was not much business after the first of July, the defendantsaid5 “sometimes, if you leave somebody after you for the workroom for Jtily.it .will be all right.”

The - defendant himself testified respecting the same interview, and says that the plaintiff applied for the -“ position of trimmer,” and mentioned a “ salary of twenty-five dollars,” and that he himself-thought twenty dollars “might be a good salary,” but that she insisted upon a higher amount, and that he said to her “if she proved competent, to fill the position,” he would give her a “ salary, that salary ” which she demanded.'

The plaintiff testifies that she had substantially the same conversa-^ tion at the last interview, after the defendant had written her a letter telling her to come again regarding the position; but-the defendant denies that anything with respect to time was mentioned at the subsequent interview. To my mind the- jury could nót wTell interpret the evidence in any other way than that both parties understood that the plaintiff engaged her services to the defendant up to the first of July, and that the defendant hired her to that .time. The conduct of the defendant indicates that he so understood it, for he pretends to have discharged her because her references did not prove satisfactory, after keeping her in his employ for •two months, and says that-was a condition of the original hiring. The plaintiff disputes this, and says nothing" was said respecting references at the time of making the contract. A fair question for the jury was thus presented, and they resolved it in favor of plaintiff. The only alternative left for the defendant was to claim a hiring by the week, and his own testimony does not establish even that.

The action is for damages for wrongful discharge. The answer is a general denial. Where a servant brings such an action against liis1 master, the defense that the plaintiff'was discharged -for good *597and sufficient cause is an affirmative one, which must be pleaded by the defendant. *(Spitz*v. Heinze, 77 App. Div. 317.) It is difficult to see, under the pleadings as they stand, how the defendant can justify his discharge. He can only prove he did not discharge her, or that lie hired her by the week only. The former he admitted, and the latter' he failed to establish.

I see no reason for granting a new trial, and, therefore, vote to affirm the judgment.' '

Pattebsoit, P. J., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.