McKeogh v. Browning, King & Co. ( 1910 )

BIJUR, J.

The plaintiff alleges that he was employed by the defendant for a year, and that the defendant wrongfully discharged him before the termination of that period. The entire case turns upon a letter of the plaintiff’s former attorney to the defendant, in which it is stated that the employment was for sik months only. This letter was offered in evidence, and, though not marked in evidence, was subsequently referred to and used by both sides at the trial. On the settlement of the case, the court below refused to mark the letter in evidence, and granted a motion of the defendant to remove it from the record. It is properly before us, however, and should have been admitted, as it is sufficiently identified. Satkofsky v. Jarmulowsky (Sup.) 95 N. Y. Supp. 555.

As the record stands, there was a substantial dispute whether the term of employment was six months or a year. On the basis of this letter, the defendant agreed to and did take back the plaintiff for the remainder of the six months; and the question at issue between the parties was thus adjusted. The contract for one year, if then existing, was thereby merged in this accord and satisfaction, and the judgment below is unwarranted.

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

SEABURY, J., concurs. PAGE, J., concurs in result.