#### Moses Johnson, Appellant, *against*Herman F. Bindseil, Respondent.

(Decided June 2d, 1890.)

Under an agreement to render services to another as long as they are satisfactory to him, so long as the employe performs services for the employer, he is entitled to be paid therefor ; but if he or his work is not satisfactory to the employer, the latter may at any time discharge him without subjecting himself to further claim.

Motion for re-argument or for leave to appeal to the Court of Appeals.

The facts are stated in the opinion and in the report.of the decision on the hearing of' the appeal (see 15 Daly 492).

*A. Kahn,*for appellant.

*M. Stuyvesant,*for respondent.

Per Curiam.

[Present, Larremorb, Ch. J., and Allen and Bookstaver, JJ.]—This .case was decided at the J anuary General Term of this court, and the judgment affirmed. The plaintiff’s counsel now claims that, on the argument of this case, *Doll*v. *Noble*(116 N. Y. 231), was not then reported, and consequently was not brought to the attention of the court, and that that case is decisive of the questions involved in this. We think not, for in this case the contract was ás follows :

> *233“New York, Jan. 8, 1889.

> “ I, Moses Johnson, agree to teach Herman F. Bindseil, the art of drafting patterns by scale, and in every particular and branch of said art, lessons to be given 2-) hours each evening in the week (Sundays excepted) until said Herman F. Bindseil has acquired full knowledge of the art, for which I, Moses Johnson, am to receive payments as follows, viz.: Tuesday, Jan. 8, 1889, being the first evening’s instruction, $25.00, and if the foregoing lessons are satisfactory to Herman F. Bindseil I am to receive on Monday, Jan. 14, 1889, $25.00, the same amount on Monday, Jan. 21, 1889, if all is satisfactory, and a final payment of $25.00 when Mr. Herman F. Bindseil is satisfied.”

This contract evidently contemplates the giving of the lessons for' four weeks if necessary, and at least until defendant had acquired full knowledge of the art to be taught, provided the defendant was satisfied with the manner in which the plaintiff performed the services to be rendered by him.

The first and second payments were made, and suit was brought to recover the third and fourth instalments. On the trial plaintiff admitted that the instructions were continued for ten evenings only; and from the evidence it appears that they were then discontinued, not because of any act of the defendant, but by reason of plaintiff’s confinement at Mount Sinai Hospital on account of illness, and that he never *thereafter*offered to give further instructions. Defendant on the trial claimed that, by reason of such failure, the instructions which had already been given were useless to him, as he had not at the time acquired full knowledge of the art to be learned, and therefore could , not use with advantage the instructions already imparted; he also claimed that he had not acquired proficiency in the art. The justice had a right-to rely upon this testimony, and was justified in coming to the conclusion that he did. *Doll*v. *Noble*(116 N. Y. 231), announced no new doctrine, but merely reaffirmed an old one and applied it to the facts in that case, which related to an executed contract. Substantially the same rule had been *234announced and applied in *Smith*v. *Brady*(17 N. Y. 176) ; *Thomas*v. *Fleury*(26 N. Y. 26) ; *Wyckoff*v. *Meyers*(44 N. Y. 145) ; *Nolan*v. *Whitney*(88 N. Y. 648); *United States*v. *Robeson*(9 Pet. 328) ; *Smith*v. *Wright*(4 Hun 652); *Whiteman*v. *Mayor*(21 Hun 121) ; cases of executed contracts, in which a certificate was refused in bad faith or unreasonably by the party who was to give it, or the refusal to pay was an arbitrary act after work performed. Of course such a rule applies with greater force where work is to be done to the satisfaction of the party himself and where it has been done, than where the certificate of a third party is necessary. The satisfaction required in such case must be reasonable. The party for whom the work has been done cannot defeat a just claim for payment of work done by arbitrarily and unreasonably saying that he is not satisfied.

But the rule is different where a person is to work for another or perform services for another so long as such work or services prove satisfactory to the employer. In such case, so long as the employe performs services for the employer, lie must be paid for it; but if he or his work is not satisfactory to his employer, he may at any time discharge him without subjecting himself to further claim, and in such case the employe loses nothing, for the reason that he has performed no services, and has entered into a contract in which there is ah implied condition that it may be discontinued at any time whenever the employer becomes dissatisfied with him or his work. And this, we think, was the doctrine which was intended to be announced in the opinion given in this case on the former argument, although some of the expressions there- ■ in contained may leave it in doubt whether it was intended to apply to an executory contract only, or to an executed contract as well.

The motion for a re-argument or for leave to go to the Court of Appeals should therefore be, denied.

Motion denied.