
    (73 Hun, 496.)
    MARTIN v. NEW YORK LIFE INS. CO.
    (Supreme Court, General Term, Second Department.
    December 1, 1893.)
    1. Contract of Employment—Hiring by the Year.
    Defendant employed plaintiff “at the rate of” a specified sum a year, the employment commencing on July 1st. The salary was increased from time to time, one increase beginning in February, and another January 1st, each increase being “to the rate of” a sum stated. Held, that the employment was not by the year, and defendant had the right to discharge plaintiff at its pleasure.
    2. Same—Release.
    Defendant wrote plaintiff that, after a date named, bis services would not be needed. Plaintiff replied that “I accept your ultimatum. I regret that you have shunned me, but I presume your motives were good,” etc. Held, that the effect of the letters was to release both parties from any existing entire contract.
    8. Same—Recall of Release.
    A subsequent letter by plaintiff to defendant, to the effect that he did not intend to release it from payment of his" salary for the remainder of the year, and offering to perform during such time, did not reinstate the original relations of the parties.
    Appeal from circuit court, Westchester county.
    Action by Edward Martin against the New York Life Insurance-Company on a contract of employment. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
    
      Wm. B. Hornblower and James Byrne, for appellant.
    Rudd, Hunt & Wilder, (James M. Hunt, of counsel,) for respondent.
   BARNARD, P. J.

The cause of action of the plaintiff is based upon an averment that he was employed by the defendant for the period of one year from the 1st of January, 1892, and that the defendant, without legal excuse or cause, discharged him from the performance of the services. The defendant denies the contract for the year stated, and avers.that the employment was terminated, by mutual consent, on the 30th of April, 1892, and that the services up to that time were fully paid and satisfied. The proof shows that the plaintiff, in 1881, was employed to take charge of the real estate of the defendant “at the rate of five thousand a year.” The employment commenced on July 1,1881. Before January, 1883, the plaintiff asked an increase of salary. This was agreed to, and a salary in excess of the rate of $5,000 a year was begun in February, 1883, and dated from January 1, 1883. This salary was $6,500. From the 1st of January, 1884, it was increased to the “rate of $10,-000.” Such salary was continued, at that rate, up to the 30th of April, 1892, when the employment terminated. The salary was paid monthly. When the increase of salary was made up to $10,-000 a year, the plaintiff asked for $15,000 from the 1st of January, 1884, and the reply was: “We will give you $10,000 a year, without further mention of the time of the commencement of the term.” There was no original hiring for a year, and the subsequent modification as to the rate of compensation did not make a yearly contract from the date of the raising of the salary. The case further shows that on the 13th of April, 1892, the defendant sent a letter to the plaintiff, in these words:

“April 13, 1892.
“Edward Martin, Esq., 346 Broadway, City—Dear Sir: Acting in conjunction with the finance committee in the determination to reduce the expenses •of this company, I have to notify you that your services will not be needed after April 30th inst.
“Respectfully yours, John A. McCall, President.”

On the next day, April 14, 1892, the plaintiff replied as follows:

“New York City, April, 14, 1892.
“John A. McCall, Esq., President New York Life Insurance Co.—Dear Sir: Your favor of the 13th inst. received. I accept your ultimatum. I regret that you have shunned me, but I presume your motives were good. With my best wishes for the prosperity of the New York Life, and that your management may be crowned with success, I remain,
“Respectfully, Edward Martin.”

The effect of these letters was to release both parties from the obligation of an existing entire contract, if one did exist. The plaintiff was bound to serve, and the defendant to pay for the services. The agreements were mutual, and the letters left each party free, after the 30th of April, 1892, from all performance under the contract. The subsequent letter, that the plaintiff did not mean to release the defendant from the payment of the salary for the remainder of 1892, and the offer to perform after April 30, 1892, did not reinstate the original conditions of the parties. Such a reinstatement must be established by a mutual agreement. The judgment should be reversed, and a new trial granted; costs to abide event. All concur.  