#### Luke Cox, App’lt, *v.*The Albany Brewing Company, Resp’t.

*(Supreme Court, General Term, Third Department,*

*Filed July 6, 1889.)*

1. Contract—Of employment—Agency—Question for the jury.

The action was to recover for breach of contract of employment, made between plaintiff and defendant for the farmer’s personal services for one year. The plaintiff was discharged after serving ten weeks, without any fault of his. Plaintiff was requested to go to the brewery and that he would obtain a position. He went and found one G. in charge of defendant’s office, who thereupon employed him. The plaintiff was nonsuited on the trial: *Held,*that as the defendants permitted G. to be its representative in its dealings with plaintiff from and including the time of his employment, and including his payment and discharge, the question should have been submitted to the jury as to plaintiff’s employment by defendant.

3. Same—Statute of frauds.

*Held,*that no question arises under the statute of frauds in that plaintiff’s contract expired on the evening before the full year would expire.

Appeal from a judgment in favor of the plaintiff, entered upon a nonsuit directed .by the court at the close of the *943plaintiff’s testimony upon trial before the Albany county -circuit, upon an appeal from a judgment in favor of the plaintiff rendered upon trial before the Albany city court.

The action was to recover damages for breach of a contract of employment, alleged by the plaintiff to have been made by and between him and 'the defendant for the plaintiff’s personal services for one year, at two dollars per day. The plaintiff served ten weeks and one day and then was discharged, being paid in full for the time of his actual service.

On Saturday, May 7, 1888, the plaintiff received a postal card, signed by the defendant’s stamp, stating: “If you come to the brewery we have a position for you.” He went to the brewery and into the office of the defendant, and found William Gray there behind the counter alone, •and apparently in charge. Gray asked him to come to work on Monday following. Howe, the defendant’s superintendent, came in, and also asked him to come. The plaintiff said he would. He went there Monday morning, and Gray asked him to go to the malt house and work there a week, and help the malster show the green hands how to work the malt. It appears that there was a strike among the defendant’s regular workmen. The plaintiff at first refused to work in the malt house, saying that he had been there before and the work did not agree with him. He then left the office. Gray followed him out, and said: “ Cox, if you will come down to the malt house for two or three days and help Farrell show the green hands how to do the work, I will guarantee you a year’s work at two dollars a day.” Gray repeated the statement. The plaintiff then said: “I will work until Saturday night and come back Monday.” He thereupon went to the malt house and worked there until Saturday night, came back -on Monday morning following, when Mr. Gray directed him to go to the shipping room, which he did, and worked there, under the direction of defendant’s superintendent, for nine weeks and one day.

Mr. Gray then told the plaintiff that the knights of labor •objected to him and he was obliged to lay him off, and directed him to go to the office and get his pay, and he did so. He went there on the following morning to apply for work, and said to Mr. Gray: “ How is it that you hired me for a year?” and Mr. Grey told him to get out of the office and not come any more, and added: “I suppose you mean to take suit against me.”

*Chase & Delehanty,*for app’lt; *De Witt & Spoor,*for resp’t.

Landon,

J.—The plaintiff was non-suited. He is therefore entitled to the most favorable inferences of which the testimony admits. He dealt with the person whom the defendant permitted to be its representative in its dealings with the plaintiff, from and including the time of his em*944ployment, during the ten weeks and one day of his service, and with and including his payment and discharge. As between the parties, Grey was the ostensible agent of defendant and clothed with all the power he assumed to exercise. Besides there is no intimation in the evidence that his real power was not as ample as his ostensible. The jury might have found that the defendant did employ the plaintiff for one year at two dollars per pay.

No question arises under the statute of frauds, for the plaintiff went to work upon the morning of his contract, and the year of his services would expire on the evening before the full year would expire.

The judgment is reversed, a new trial is granted, costs to-abide the event.

Learned, P. J., and Ingalls, J., concur.