
    Andrew V. Jova, App'lt, v. The Southern Improvement Company, Resp't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1893.)
    
    Contract—Employment as physician—Construction.
    A contract recited that plaintiff was to perform the duties of physician at defendant’s hotel from October 1, 1889, to May 1, 1890, for fifty dollars per month, unless one R. resigned his position with defendant before May 1, 1890, when plaintiff’s salary should be $125 per month, and to continue for one year from May 1, 1890, or from the date R. severs his connection with defendant. R. resigned his position in April, 1890. Plaintiff was paid fifty dollars per month till May 1, 1890, and $125 for the following month, when he was discharged. Held, that plaintiff was to be employed from October 1, 1889, to May 1, 1891, at fifty dollars per month untd R.’s employment ended, and $125 per month thereafter.
    Appeal from a judgment dismissing the complaint on the ground that it does not contain facts sufficient to constitute a cause of action.
    
      H. K. Doherty, for app’lt; Peabody, Baker & Peabody, for resp’t.
   Ingraham, J.

action is brought to recover damages for the breach of a contract whereby plaintiff claims to have been employed by the defendant until May 1, 1891. The complaint sets forth the contract in full; alleges that a Dr. Boss, mentioned in the contract, continued in the employ of the defendant until his contract with the defendant terminated by limitation, at the end of April, 1890 ; that the plaintiff entered upon his employment and duly discharged all the duties thereof until the end of May, 1890, and was paid for his services up to that time; and that about the end of May, 1890, plaintiff was, without cause or right, discharged by the defendant. Upon the construction of this contract, as claimed by plaintiff, he was liable from October 1,1889, to May 1, 1891, and, while the construction to be given to it is not free from doubt, I am of the opinion that the plaintiff is right. By the agreement, which was dated the 21st of October, 1889, the plaintiff, the party of the first part, agreed to furnish medical attendance and perform the duties of physician in charge of the Mountain Park Hotel, Hot Springs, N. 0., commencing October 1, 1889. There is, in this covenant, on the part of the plaintiff, no time fixed for the termination of the employment. Then follows the covenant of the defendant. It is that defendant agrees to pay to plaintiff from October 1, 1889, a salary of fifty dollars per month, with board, etc.,- at said hotel, until May 1, 1890, “ or in the case of the resignation of Dr. Ross, or his relinquishment of his contract before May 1, 1890, then the amount to be paid by the party of the second part shall be one hundred and twenty-five dollars per month, in addition to board, etc., as before stated.” If the contract had stopped here, it might be held to be an employment to May 1, 1890, at fifty dollars per month, or in case of the resignation of, or the relinquishment of his contract by, Dr. Ross, the compensation was to be $125 per month. The contract then contains the following: “ And to continue for one year from May 1, 1890, or from the day that Dr. Ross severs his connection professionally with the party of the second part,” the defendant. What is to continue for one year? Evidently, the employment of the plaintiff, and it is this latter clause of the contract that contains the first provision as to the period during which the contract is to continue in force ; the provision in the former part of the contract, as to the 1st of May, evidently applying to the period for which , fifty dollars a month was to be paid. If it had been the intention of the parties that the continuance of the employment after May 1, 1890, should be conditioned upon the resignation or retirement of Dr. Ross prior to May 1st, the provision that the contract was to continue for one year from May 1, 1890, would have been meaningless.

Talcing the whole contract, together with the situation of the parties, as alleged in the complaint, and the fact, as there alleged, that Dr. Ross’ contract with the company terminated in the latter part of April, the proper construction to be given to the contract is, I think, that the plaintiff was to be employed from October 1, 1889, to May 1, 1891; that he was to be paid $50 per month until Dr. Ross’ professional connection with the defendant ceased, if before May 1st, by resignation or relinquishment of the then existing contract, or, after May 1st, by the termination of his contract, and that the amount to be paid was to be $125 per month. And this construction is necessary to give effect to all the provisions of the contract, and is confirmed by the construction placed upon the contract by the defendant, which appears by the fact alleged in the complaint, and which must on this appeal be taken as true, that the plaintiff continued in the employment until the end of May, 1890, and was paid for the month of May at the rate of $125 per month. It follows that the court below erred in dismissing the complaint, and the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’Brien, J., concurs.

Van Brunt, P. J.—I would be inclined to differ from Mr. Justice Ingraham in his interpretation of the contract in question, were it not for the alleged interpretation put upon it by the action of the parties, which allegations, for the purposes of this appeal, we must accept as true.  