#### William M. Keepers, Respondent, *v.*M. Hartley Company, Appellant.

First Department,

December 5, 1913.

Master and servant—contract for yearly hiring — novation—proviso that employee may be discharged on thirty days’ notice.

The plaintiff was originally employed by a copartnership under a contract for a yearly hiring. Some years later the partnership business was incorporated and the plaintiff received a letter from the corporation which merely fixed the rate of his compensation and stated that employees could be discharged on thirty days’ notice, or on the payment of thirty days’ advance salary.

Subsequently the plaintiff was discharged.

Held, that even if he were discharged without cause, he could not recover on the basis of a breach of a yearly contract of employment, but at the most was only entitled to an extra month’s salary.

Dowlihu, J., dissented.

Appeal by the defendant, M. Hartley Company, 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 6th day of February, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

*John A. Garver,*for the appellant.

*Martin Conboy,*for the respondent.

Hotchkiss, J.:

The fourth and fifth counts of the complaint were the only ones retained on the trial. In the fourth the plaintiff alleged *474that from. January 1 to September 8, 1905, he held the office of auditor in defendant company under a contract by which he was to serve from January 1, 1905, to January 1, 1906, at a salary of $7,500; that he acted in that capacity until April 1, 1905, when he was given a vacation until September 8, 1905, on which day he was unjustly discharged, and judgment was demanded for the salary accruing from April to September, amounting to $3,345. The fifth count alleged the same contract and service thereunder until September eighth, on which day it was alleged plaintiff was wrongfully discharged, for which he demanded $2,500 as damages. The verdict was for the aggregate of the foregoing amounts with interest. The defendant was organized in the year 1900, succeeding the firm of Hartley & Graham,, in whose employ plaintiff had been for many years. Defendant asked the court to charge that if the jury found the plaintiff was discharged on April first he could not recover. The court charged as requested, but with the limitation that the jury must also find that there was no yearly hiring. In this the court committed reversible error. The evidence that there was no yearly hiring was conclusive. The facts upon which defendant rested his claim of such a hiring were substantially as follows: He testified that when first engaged by the firm of Hartley & Graham, Graham said “ ‘ I will employ you from January 1st to January 1st ’ — and the employment to continue as long as my services were satisfactory to them.” Graham died in 1899 and the business was continued by Hartley until the corporation was formed. Plaintiff further testified that when this took place Hartley told him that the corporation was taking over the old business, its clerks, etc., “ at the *same remuneration*as had been paid by ” the firm. On April 1, 1898, he received from defendant a letter reading as follows: “Referring to our conversation with you, we would say that during the present year, you may draw at the rate of $6,000 per annum and any further compensation is to be left to our discretion.” On January 8, 1906, four months after the day on which plaintiff alleged he had been discharged, he wrote to defendant a letter, disingenuous in its terms and evidently intended as the basis of a subsequent suit, in which he referred to the “'fact that my yearly written contract with *475you ends January 10th, 1906.” He testified that the “yearly written contract ” to which he thus referred was the letter of April 1, 1898, which, as he testified, he had received under circumstances justifying him in regarding it as evidence of the terms of his employment. The argument in plaintiff’s behalf is that his employment by the firm was by the year and that the terms of this employment were adopted by the corporation, and we are cited to cases holding that where one enters into the employ of another under a contract for a year’s service and thereafter continues without any new contract the presumption is that the contract for yearly service at the same salary is continued. *(Adams*v. *Fitzpatrick,*125 N. Y. 124; *Bennett*v. *Mahler,*90 App. Div. 22, 27.) Conceding that the formation of the corporation would not necessarily take the case out of this rule, not only because of plaintiff’s testimony concerning his conversation with Graham hereinbefore referred to, but upon the further ground that the incorporation of the old business effected no substantial change and was but a method of continuing the business by its former owners, and notwithstanding the rule that a yearly hiring need not be evidenced by express words and that the intention of the parties may be gathered from all the facts *(Hotchkiss*v. *Godkin,*63 App. Div. 468), we are still met with the question, may we revert to the terms of the original oral hiring when subsequently a writing has passed between the parties which is intended to cover their whole agreement ? I think not. Plaintiff planted himself firmly upon the letter of April 1,1898, and must'be held thereto. Manifestly, this letter does not evidence any yearly hiring, but only fixes the rate of plaintiff’s compensation. The foregoing facts left nothing to go to the, jury on the subject of the term of plaintiff’s hiring, and the charge of the court in this regard was manifestly wrong.

The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingraham, P. J., McLaughlin and Laughlin JJ., concurred; Dowling, J., dissented.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice.