#### Max Flicker, Appellant, *v.*Louis Graner et al., Respondents.

(Supreme Court, Appellate Term,

March, 1898.)

1. Services — Construction of contract.

The plaintiff a cloak operator- and the defendants, who were manufacturers, entered into a contract for one year, under' which the defendants agreed to pay the plaintiff and his finisher $20 per week, the defendants to retain any weekly excess until the contract was fully performed. Although during the seventeen weeks the plaintiff earned $181, in excess of $20 per week, he earned in the year only $895 and had been paid $1,040.

Held, that he could not recover, additionally, $181.

*113
      *2.*Contracts — When their construction is for the court.

The construction of a contract is for the court, where its terms and language have been ascertained and there are no technical phrases nor latent ambiguities.

3. Practice — Eight of a party to withdraw his request for the direction of a verdict.

*Semble,*that, although both parties request a veridet in their favor, and the court thereupon directs a'verdict for the defendant, the plaintiff may, if there is any question of fact, withdraw his request and ask that the case be submitted to the jury.

Appeal from a judgment of the General Term of the City Court, affirming a judgment of the Trial Term in favor of defendants.

A. H. Berrick, for appellant.

Wahle *&*Stone, for respondents.

Gildersleeve, J.

The defendants are cloak manufacturers, and in the month ,of September, 1894, they entered into a written agreement or contract with the plaintiff, by which they agreed to employ plaintiff in their business as a cloak operator on piece work, at the same prices as paid to all the operators working on their premises for complete finished garments; the plaintiff, however, was to employ and to pay a competent finisher out of his own earnings; and such employment was to continue for the term of one year, from September 29, 1894, to September 29, 1895. The defendants agreed to pay to the plaintiff, on account of the work done and completed by him and bis finisher, weekly, every Saturday, the sum of $20; and any excess of his earnings above the amount of $20, paid to him weekly, was to be retained by the defendants until the agreement expired, and the plaintiff had faithfully carried out the provisions of the agreement. In consideration of the weekly wages, guaranteed by the defendants to the plaintiff, the plaintiff agreed to work for the term of one year for the defendants, on their premises, under the conditions aforesaid, in the| usual and customary way, and industriously.

The undisputed evidence shows that 'for seventeen weeks the plaintiff earned a total sum of $181.70 above and in excess of his $20 weekly salary; but that, at the end of the year, he had only earned in all, for-the whole year, the sum of .$895.80; whereas, he had been paid, as . weekly guaranteed wages, the sum of $1,040, *114which was $144.20 in excess of his total earnings for the .year. Plaintiff claims that,' under the contract, he is entitled to this sum of $181.70, in addition to the $1,040 salary already paid him.

-Both sides, at the trial, asked for the direction of a verdict, and the coiu*t accordingly, ordered a verdict for the defendants; wherer upon plaintiff withdrew his request for the direction of a verdict, and asked to have the case submitted to the jury on the questions of fact. *'*

It is true that in a case where both parties request the court to 'direct a verdict, the court is thereby clothed with the functions of the jury, with respect to any question of fact in the case, and, in the absence ¡of a request to go to the jury by the party against whom the Verdict -is directed, .the decision stands in the place of a verdict; yet, in ¡the case at bar, as we have seen, the plaintiff, upon a denial of his motion and the granting of the motion' of the defendants, made the request to have the case submitted to the jury. He was-not precluded from making this motion by his previous request ,to have a Verdict directed in his favor; jand, if there had been any evidence competent to submit to the jury, upon any disputed question of fact, the denial of his motion would have been error. See Shultes v. Sickles, 147 N. Y. 705; Switzer v. Norton, 3 App. Div. 173. But, in the case at bar, there was no question of fact to be submitted to the jury. The only question was one of 'law as to the construction of the contract. ■ When the terms and language of a contract are ascertained, in the absence of technical phrases, or of terms, the meaning of which is. .obscure, or of latent ambiguities, rendering the subject-matter of the contract uncertain and doubtful, the office of interpreting its meaning belongs to the court. See Brady v. Cassidy, 104 N. Y. 148. We are'of opinion that the learned trial court committed no error in refusing to submit the cáse to the jury. We also concur in his construction of the contract. The contract was for a- year; there is no claim made that plamtiff did not get his share of the work, or that there was any discrimination against Shim in that respect, or that he and his finisher did not get the same prices, .for the piece work doné by them, as that paid to all the operators working on defendants’ premises, as provided for in the contract. • At the expiration of the contract, it is found that he has been paid $144.20 more than he has earned. The contract clearly indicates that plaintiff was to be guaranteed $20 a week, and that if, at the end of the term, *i.*6., in one year, he had earned more than his guaranteed *115'salary, he was to receive that sum in addition to such salary. The contract specially provides that the defendants *“*shall retain any excess of his earnings until the end of the contract,”* *i.*e., at the end of the year. As we have seen, at the end of the year plaintiff was found not to have any excess of earnings, but, on the contrary, to be $144.20 behind.

We think the court made no error in directing a verdict for the defendants, and it, therefore, follows that the judgment appealed from must be affirmed, with costs.

Beekmah, P. J., and Giegebioh, ‘J., concur.

Judgment affirmed, with costs.