Smith v. Conlin ( 1879 )

Learned, P. J.,

dissenting.

In October, 1876, the plaintiff agreed, verbally, with defendants, to teach for one year, from October 1, 1877, at a certain salary, unless, at least two weeks before October 1, 1877, either plaintiff or defendants should give notice to the contrary. Is this an agreement which, by its terms, is not to be performed within one year from the time of making ? I do not see how the privilege of annulling the agreement, by a notice two weeks before performance was to commence, makes the agreement one which can be performed within one year from making it. The agreement could not be performed till October 1, 1878. It might be annulled by notice as late as September 15, 1877. But annulling is not performing.

Nor, as it seems to me, is the validity of this agreement affected by the fact that, at the same time, there was also an agreement made, to teach from October, 1876, to October 1, 1877, absolute and with no right in either party to annul it.

The two agreements were distinct. One was absolute, and ended October 1, 1877. The other was conditional; that is, it might be annulled by either party before a certain time. If annulled, then it could not be performed at all within a year, or within any time whatever. If not annulled, then it could not be performed -within a year from the time when il was made.

Again, no notice having been given, the agreement ceased to be conditional, and became absolute, September 15, 1877; and it waa then an agreement which could not be performed until October 1, 1878, and could not be performed within a year from the time when it became binding by its terms.

This case should be “ distinguished ” from Trustees v. B. Fire Ins. Co. (19 N. Y., 305). In the present case, it was not the Tight of either party to annul the agreement, now in question, by giving notice at any time. It could only be annulled by a notice given, within two weeks, prior to October 1, 1877. While the case in 19 N. Y., 305, is put on the ground that either party could terminate the contract at any time.

Present — Learned, P. J.; Bocees and Boardman, JJ.

Judgment affirmed, with costs.