#### Charles Leopold, Appellant, *v.*Hotel Shelburne, Incorporated, Respondent.

First Department,

May 29, 1914.

Master and servant — action for wrongful discharge failure of employee to furnish bond — verdict against weight of evidence — appeal—issues not raised at trial.

Action to recover damages for an alleged wrongful discharge. The plaintiff was employed as a bookkeeper in a hotel and also handled money. He was discharged because a surety company refused to continue his *772bond, which, the defendant claimed he was required to furnish by the contract of employment. Evidence examined, and *held,*that a verdict for the plaintiff, based upon a finding that the furnishing of the bond was not an absolute condition of the hiring, was against the weight of evidence.

A contention that the original contract, was modified by agreement of parties cannot be raised for the first time upon appeal.

Appeal by the plaintiff, Charles Leopold, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 5th day of March, 1914, reversing a judgment of the City Court of the City of New York in plaintiff’s favor and dismissing the complaint.

The judgment of the City Court awarded plaintiff the sum of $996.88 as damages for breach of a contract of employment.

*Myle J. Holley,*for the appellant.

*George Wolf,*for the respondent.

Dowling, J.:

The plaintiff in his complaint alleged that on January 25, 1913, he was employed as a bookkeeper by the defendant for a term of five months from May 1, 1913, at a monthly salary of $125, together with board (not to exceed $4.85 a day) and lodging for the same period. He further alleged that he entered into the employ of the hotel May first, and remained therein until May tenth, when he was unjustifiably discharged, being paid in full up to said date. The defendant by its answer admitted that it employed the plaintiff as bookkeeper and cashier on or about January 25, 1913, at a salary of $125 a month, provided, *first,*that he should perform his duties satisfactorily; and, *second,*that he should furnish a surety company bond for the faithful performance of his duties; that plaintiff was employed from May 1 to May 10, 1913, on which latter date he was discharged because the surety company had refused to continue on his bond. Upon the trial plaintiff testified that about April nineteenth or twentieth he was requested by defendant’s president to go to work within twenty-four hours, if he could, instead of waiting until May first, to which he assented, and did so begin his *773employment ten days or more in advance of the agreed time. He admits that on this day there "was some talk about his giving the bond of a surety company, which he claims was the first time it was ever referred to. He denies that he ever agreed to furnish such a bond, or that it was a condition for his obtaining employment with the defendant or remaining therein. As a matter of fact he did, on April twenty-first, make a written application to the United States Fidelity and Guaranty Company for a bond covering his position as “ head bookkeeper and cashier ” with the defendant. On May fourth he was advised that the surety company had declined to remain on his bond, having so notified the defendant on April thirtieth, and plaintiff says he volunteered to do what he could to get the surety company to reconsider its determination. On May sixth he wrote a lengthy letter to the surety company asking them to reconsider. He began it by saying: “ I am writing to you in the hope that you will see conditions in the true light and grant me an opportunity of retaining my present position.” Towards its close he said: “Hoping to be favored with an immediate reply, since the matter is most urgent and my whole future depends upon your action in this matter. Reisenweber’s, with whom I am now connected, is holding up further action until I receive definite word from you in this matter. You will readily see that my position is at stake, and urge you to inform me immediately.” Despite this appeal, on May tenth the surety company called upon the defendant in writing to sign and return the notice previously sent, whereby plaintiff was removed from the scope of the general bond given by it to defendant. Thereupon, this being a reiteration of its refusal to bond plaintiff, defendant on the same day discharged him and paid him in full, he signing a receipt in full. Later the surety company reconsidered its decision, but it was too late, for plaintiff had already been discharged. Defendant’s contention is, that from the very first interview, when plaintiff’s hiring was discussed, it was made an absolute condition that he should furnish a surety company bond, since he was not only to keep books as a bookkeeper, but also to handle cash as a cashier. Plaintiff’s own application for the bond shows that he was to act in both capacities. Some witnesses were produced as to *774the conversations had at the time of the hiring, and as to later admissions that he, unless he furnished a bond, could not keep his position. The case was submitted to the jury in a charge which presented clearly the sole question involved: was the hiring an absolute one, or was it conditioned on plaintiff supplying a surety company bond to indemnify defendant for any possible loss arising out of the discharge of his duties as cashier ? The jury found for the plaintiff, and we think that the verdict was against the weight of evidence, which, without analyzing it at greater length, seems to us to fairly establish that the hiring was a conditional one. The determination of the Appellate Term (84 Mise. Eep. 432) reversing the judgment was, therefore, correct, and should be affirmed. But it went further and dismissed the complaint upon the theory that there was a modification of the original contract by mutual consent in April, when plaintiff agreed to furnish the surety bond, and went to work at once, instead of waiting until May first. It is only necessary to say on this proposition that no such issue was raised by the pleadings or submitted to the jury. Both plaintiff and defendant stood on the claim that the contract was made on or about January twenty-fifth, and defendant never set up or sought by proof to establish a modified contract. On the contrary, it insisted that such a bond was a condition of the original contract of hiring. The issue of a modified contract was never raised upon the trial in any way, and could not be urged for the first time upon an appeal. Furthermore, as there were issues of fact to be determined as to the terms of the hiring; as to whether plaintiff ever bound himself to furnish a bond, and as to the time when, if at all, he agreed so to do, these issues must be passed upon by a jury. In so far as the determination dismisses the complaint it must be reversed, and instead thereof a new trial ordered.

So much of the determination of the Appellate Term as reverses the judgment of the City Court is affirmed; so much thereof as dismisses the complaint is reversed; a new trial is ordered, with costs of the appeal to abide the outcome of the trial.

Ingraham; P. J., Laughlin, Clarke and Scott, JJ., concurred.

*775So much of determination as reverses judgment of City Court affirmed; so much thereof as dismisses complaint reversed; new trial ordered, with costs of appeal to abide event. Order to be settled on notice.