
    Daniel E. Mason, App’lt, v. Benjamin M. Secor et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 13, 1894.)
    
    1. Contract—Renewal.
    Where parties have entered into a contract for services for a certain period, which has elapsed, and their connection still continues, they are deemed to have renewed the contract without executing a new agreement.
    2. Same.
    But this principle does not apply where the employer in the original contract was an individual who, at its termination, formed a copartnership under which the services continued.
    3. Partnership—Effect of Dissolution.
    The dissolution of a firm, by the death of a member, terminates all contracts with its employes.
    Appeal from a judgment in favor of the defendants.
    
      Andrew Vanderzee for app’lt; I. & J. M. Lawson (Isaac Laiuson of counsel) for resp’t.
   Putnam, J.

Plaintiff was employed as a salesman by one 'Charles G% Craft for several years "prior and up to January 1st, 1890, at a yearly salary of $1,000. At that time Craft formed a partnership with defendants for two years to carry on the same business previously carried on by him. Plaintiff continued to work for the firm as he had before worked for Craft until discharged as below mentioned. Said Craft died on March 13, and defendants discharged plaintiff on March 17, 1890, he claiming an employment for a year, commencing January 1, 1890, at a salary of $1,000. Plaintiff brought this action to recover damages on account of his discharge.

At the close of the evidence the defendants moved for a non-suit, which was granted, and plaintiff excepted.

There was no evidence produced showing that the firm of Charles Gr. Craft & Co., formed on January 1, 1890, ever made any express contract with plaintiff to employ him for any length of time or at any agreed salary or otherwise. It seems that having been at work for Craft prior and up to January 1, 1890, as a salesman, he continued in the same employment with 'the new firm without entering into any express contract with it.

Under such circumstances, ordinarily, an employer can discharge the servant when he elects and is only liable to pay him the value of his services for the period of his employment. But the plaintiff contends that, having been employed by Charles Gr. Craft for several years at an annual salary of $1,000 and defendants having, on January 1, 1890, formed a copartnership with Craft and continued the same business and he (plaintiff) having continued after the formation of the partnership in their employ the presumption is that he continued in the service of defendants on the same terms as when in the employment of Craft alone. Douglass v. Merchants Ins. Co., 118 N. Y., 486; 29 St. Rep., 944; Vail v. Jersey Little Falls Mfg. Co., 32 Barb. 564.

The learned counsel for the appellant fails to cite any authority to sustain his contention as applicable to such a case as this. It is conceded that had Craft continued in business alone after January 1, 1890, and plaintiff had remained in his employ after his last year service a contract to employ him another year on the same terms might have been implied. If there was such an implied contract to employ him in this case it was made after January 1, 1890, that is, after the formation of the co-partnership, and was implied because plaintiff had been employed by Craft some years prior to January 1, 1890, and after the formation of the firm and continued in their employ. In fact, it is a well settled principle, that where parties have entered into a contract for service for a certain period which has elapsed and their connection still continues, they are deemed to have renewed the contract by tacit novation without any new agreement being entered into. 14 A. & E. Ency, of law 770-771.

But we are of opinion that this principle does not apply to such a case as this. The connection between Charles Gr. Craft and plaintiff was not continued. The firm of Charles Gr. Craft & Co., composed of said Craft, Benjamin M. Secor and Josiah D. Chapin, is an entirely different party from the one who employed plaintiff prior to and up to January 1, 1890. At that time Craft ceased to do business and a co- partnership took his place, and there could be no renewal of the contract then existing between Craft and plaintiff unless by an express contract.

Certainly, the plaintiff failed to show any renewal of the contract existing between Craft and himself, because it was not made to appear when the personal agreement between Craft and the plaintiff terminated or in fact that it was ended prior to the discharge of plaintiff by the defendant. Also it does not appear that one of the defendants Secor, ever knew the terms of the contract between plaintiff and Craft.

The plaintiff, therefore, failed to show any contract with defendants to employ him for any definite length of time and the trial judge properly granted a non-suit. (See Morrison v. O. & L. C. R. R. Co., 52 Barb. 173-182.) There was no question of fact for the jury. There was no evidence given from which the jury could have properly found an agreement on the part of defendants to employ plaintiff for a year.

We also think that the position taken by defendants that if there were a contract of employment for a year between the defendants and plaintiff as claimed by him, the said firm having been dissolved by the death of Charles G. Craft, such contract was thereby terminated and defendants could therefore lawfully discharge the plaintiff. Greenburg v. Early, 4 Delehanty 99 ; 53 St. Rep., 130; Lacy v. Getman, 119 N. Y. 109; 28 St. Rep. 546.

The Court properly refused to allow plaintiff to amend his complaint on the trial. But as no exception was taken to such refusal this point does not require any discussion.

The judgment should be affirmed with costs.

. Herrick, J., concurs in result.  