#### Robert H. Wood, Appellant, *v.*Romanta T. Miller, Jr., and Richard S. Peale, Respondents.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Motions and orders — motion for judgment on the pleadings — bill of particulars.

Contracts — personal services for fixed term—modification as to compensation— presumption of continuance of employment after expiration of term.

Where plaintiff, by setting forth in his bill of particulars copies of the contract and letter upon which he relies to establish his cause of action, limits his proof to said contract and letter, the sufficiency of the complaint may be tested on a motion for judgment, made at the opening of the trial, upon the pleadings and bill of particulars.

*378Where a written contract, by which plaintiff was employed for the term of one year, was subsequently modified as to his weekly compensation by a letter from his employer in which it was expressly stated that “ the other terms of the agreement would of course remain in force,” plaintiff’s continuance in the employment after the expiration of the year raises a presumption that the parties had consented to a renewal of the contract for a like period.

Where, before the expiration of the next year, plaintiff brings an action for wrongful discharge, the dismissal of the complaint on motion, made at the commencement of the trial, upon the pleadings and plaintiff’s bill of particulars, is error.

Appeal from a judgment of the Oity Court of the city of New York, dismissing the complaint upon motion made at the commencement of the trial upon the pleadings and the hill of particulars.

M. L. Heidenheimer (Samuel P. Goldman, of counsel), for appellant.

Brown, Boskey & Braun (Meyer Boskey and Louis A. Brown, of counsel), for respondents.

Page, J.

The first question raised is the propriety of considering the bill of particulars in connection with the motion for judgment. This court has held that, on a motion for judgment upon the pleadings under section 547 of the Code of Civil Procedure, a bill of particulars cannot be considered. Hoey v. Kilduff, 65 Misc. Rep. 554. The Appellate Division of the second department has recently decided that the bill of particulars could not be considered on a motion made for judgment upon the pleadings at the opening of the trial, citing Hoey v. Kilduff, *supra;*Kaufman v. Hopper, 151 App. Div. 28. The Appellate Division in this department, however, has decided that the bill of particulars can be considered on a motion for judgment on the pleadings under section 547 of the Code of Civil Procedure, saying: *“*The purpose of the statute was to save expense and delay. It would be absurd to hold that on a motion for judgment on the pleadings before trial the plaintiff’s bill *379of particulars could not be considered, although, if the parties are required to prepare for trial, the case will be dismissed at the opening. We think that on such a motion as this the court may consider whatever might properly be considered on a motion for judgment at the opening of the trial.” Dineen v. May, 149 App. Div. 469, 471. In reason we cannot see why in this case, where, in the bill of particulars the plaintiff sets forth in full copies of the contract and letter upon which he relies as the evidence to establish his cause of action, and has thereby limited his proof to that particular contract and letter, the sufficiency of the complaint should not be tested on a motion based upon the allegation of the complaint and the bill of particulars. At the close of the plaintiff’s case the same condition would be presented, the only difference being that the original contract and letter would be in evidence, whereas, at the opening, copies would be before the court as a statement of the evidence upon which the plaintiff intended to rely.

Considering the case, therefore, upon the complaint and bill of particulars, as presented to the learned justice on the motion for judgment, we are unable to adopt his conclusion.

The facts, as disclosed by .the complaint and bill of particulars, so far as pertinent, are as follows: On or about the 23d day of August, 1909, the plaintiff and defendants entered into a written agreement whereby the defendants hired the plaintiff as eastern advertising manager for a magazine published by the defendants, for the term of one year from August 26, 1909, at a salary of $60 per week; the salary to be paid weekly, but to be deducted from the commissions which were set forth in the contract. The contract concludes, *“*it is understood and agreed that if the total amount of business secured by you [the plaintiff] and appearing in the magazine in the issues of Uovember and December, 1909, and January, February, March and April, 1910, does not aggregate twenty thousaid dollars ($20,000) either party has the option of terminating this contract.” On February 18, 1910, the defendant Miller wrote, to the plaintiff calling his attention to the fact that the total amount of business written by the plaintiff since he joined them was *380approximately $9,000, of which $3,200 was reservation on which actual orders had not been received. After dwelling upon the disappointment of the situation, the letter continues : “ I still have every faith in the ultimate success of the magazine, • and I judge from your letters that you still have abundant faith that you can make it succeed under your management, and I should be very sorry to have you drop out before success is actually won if you feel that it can be won within the next year. With this in mind I make the following suggestion: that we wipe out the score up to and including the April issue and begin again on exactly the same basis as your present contract, except that the drawing account will be $40 a week. If at the end of the present year, August 26th, your commissions on business written after March 7th, and appearing in ,the magazine, amount to more than the amount of salary drawn beginning March 7th, the balance will be paid you promptly as it accrues. The other terms of the agreement would, of course, remain in force.” The plaintiff remained in the employ of the defendants, performing the same duties and at the same compensation, until December 9, 1911, when he was discharged. This action was brought for the salary for the remainder of the time up to August 26, 1912, as damages for a wrongful discharge, the contention of the plaintiff being that the original hiring was for one year; that the letter of February eighteenth merely modified that contract as to the compensation and not as to the term of employment, and that having been continued in the employment after the expiration of the year the presumption arises that the-parties had consented to renew the contract for a like period, which presumption continues on the continuance of the employment ;at the expiration of each yearly period. The defendants, on the other hand, claim that the original contract was abrogated by the letter of February eighteenth, and a new agreement made for six months, and that a continuance of the employment after the expiration would constitute .an indefinite hiring which could be terminated at will. In passing, although not necessary to the determination, we might observe that, if the first hiring was for a defi*381nite term of six months, a renewal for that term would he implied, and not an indefinite hiring.

The defendants’ contention is that the letter of February eighteenth was an exercise of the option contained in the contract that either party might terminate the contract. But the intention to exercise the right reserved by the option is not indicated in the letter, nor had the time specified for the exercise of that right arrived. The right to terminate was given if the total amount of business secured and *appearing*in the issues from November to April does not aggregate $20,000. It does not appear from any facts before us that the April issue had appeared in February, and while the amount of advertising secured up to February eighteenth might give rise to a strong probability that the amount to be secured in the time remaining would not amount to $20,000, the right to exercise the option arose only in the definite ascertainment of the fact from the amount of advertising that appeared in the issues specified. The existence of this probability led the defendants to propose to the plaintiff a modification of the contract in two particulars — the elimination of the option to terminate it on the appearing of the April issue, and a change in the salary or drawing account as against commissions from $60 to $40 a week. It was, however, expressly stated in the letter of February eighteenth that *“*the other terms of the agreement would, of course, remain in force.” The letter of February eighteenth 'did not purport to change the term of employment contained in the original contract, but recognizes 'it by explaining what would be the status of the plaintiff in regard to the commissions *“*at the end of the present year, August 26th, 1910.”

It appears, therefore, that the original hiring was for the term of one year, and by continuing the employment of the plaintiff thereafter at the same rate of compensation as in the first contract, as modified; the implication arises that the contract was renewed from year to year. Adams v. Fitzpatrick, 125 N. Y. 124. The cases relied upon by the defendants are inapplicable to the case at bar.

In Schott v. La Compagnie Generale, 52 Misc. Rep. 236, *382the original contract was for two years, and, as a contract for more than one year would have to be in writing, the court could not presume that the original contract was renewed for the period of two years, without written evidence of that fact, and, hence, held that the subsequent hiring was for an indefinite time terminable at will.

In Arcade Realty Co. v. Tunney, 52 Misc. Rep. 148, the agreement to give a lease did not refer to the covenants and conditions in the present lease, but that the lease should contain the *“*usual conditions and covenants,” and, as it did not appear that the covenant to pay rent monthly in advance was the usual covenant, it could not be implied from the fact that such a covenant existed in the previous lease.

In Caldwell v. Caldwell Co., 88 N. Y. Supp. 970, there was no evidence that the prior contract was for a year.

In Martin v. New York Life Ins. Co., 148 N. Y. 117, and Copp v. Colorado Coal & Iron Co., 20 Misc. Rep. 702, the original hiring was for an indefinite term, holding that the hiring of a person at a certain sum by the year does not establish the term of hiring but merely fixes the rate of compensation.

In Daniel v. Manhattan Life Ins. Co., 116 App. Div. 780, the original hiring was for an indefinite term. This agreement was amended in some particulars, and as amended was “ extended for one year.” This was held to change the original indefinite hiring into a contract of hiring for a year.

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

Lehman and Hotchkiss, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.