Byrne v. Weir , 78 N.Y.S. 1110 ( 1902 )

Freedman, P. J.

Plaintiff sets up as his cause of action herein, that he was employed by the defendant from October 1, 1901, at fifty dollars per month and was wrongfully discharged after the first five days in said month.

In August, 1901, the plaintiff applied to the defendant for employment and was hired as an extra man and began work on August 26, 1901. On October fifth the plaintiff was discharged and eight dollars and six cents, the amount earned by him since the preceding pay day, was tendered him and refused. The claim of the plaintiff that he was employed by the- defendant for a definite and certain time is not sustained by the testimony. The plaintiff was the only witness sworn in his own behalf. His testimony is that when he first applied for employment, the agent of the defendant said to him: “ If you want to come on here tomorrow and show what you can do as an extra man at the rate of $50 per month, all right, and if yon are all right, I will put you on as a regular man at the rate of $50 per month.”

After the plaintiff had worked until sometime in September, 1901, the agent asked the plaintiff to execute a bond and said “ he had to have those filed the next day because I was to go on as a regular man at $50 per month.”

Hpon his cross-examination he was asked: “ Q. "When he said he would put you on as a regular man what length of time did he specify ? A. No, he did not specify; I went on as a trial man to see if I was able to do the work. Q. At the time when he spoke of you as a regular man, you did not understand that you were to stay a year or three months or any given length of time ? A. No; I understood I was to go on as a regular man for $50 a month.” When payments for wages had been made to plaintiff <on August thirty-first, September sixteenth, and September thirtieth he signed receipts therefor each of which had the following notice printed thereon in plain letters: “ Employees of this company are hereby notified that they are not engaged for any particular length of time and the company reserves the right to itself to terminate the services of any employee at pleasure and the party executing this salary receipt does hereby acknowledge and agree to abide by such notice and conditions and accepts employment subject to being discharged at any time by the company or its agents.” »

The evidence fails to show an employment for any specified time. It was a mere hiring at will and the plaintiff could be discharged at the option of the defendant at any time and the defendant would only be liable to the plaintiff for the time actually spent in its employment at the rate of wages at which he was engaged. Martin v. New York Life Ins. Co., 148 N. Y. 117-120.

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

Tbuax and Gildeksleeve, JJ., concur.

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