
    Jasper A. Campbell et al., Appellants, v. George H. Tappen, Respondent.
    (Supreme Court, Appellate Term,
    July, 1899.)
    ■Services — Unlawful discharge.
    An unlawful discharge of an employee is made out by proof that, when he told his employer that he should leave at the end of the term but that he would fulfill his contract, the employer said he had better resign then, and, upon his again saying that he would fulfill his contract, the employer said “You can go now”.
    Appeal by tbe plaintiffs from a judgment of the Municipal Court of the city of Hew York, second district, borough of Manhattan, rendered in favor of the defendant.
    Platzek & Stroock, for appellants.
    Henry Brill, for respondent.
   MacLean, J.

During the year 1898, the defendant was employed by the plaintiffs, who were partners, as a salesman, under an agreement for the calendar year by which he was to receive three per cent on sales to persons whom he called upon, with a guaranty that his compensation would be $1,000. On December fifth, there had been and was talk between them about an arrangement for the ensuing twelvemonth. “ On the sixth,” says the defendant, I walked in and told them that I would resign to take place on the first of the year 1899, and fulfilling my contract. I told that to Mr. Metzer who called Mr. Campbell in and he said, Mr. Tap-pen, repeat your remark to Mr. Campbell/ and I did so. I repeated to Mr. Campbell that I would resign to take place the first of January, and Mr. Campbell said it had better take place now. I says, I shall fulfill my contract.’ He says, ‘ You can go now.’ The conversation ended right there and I walked out of the office.” This would look like a separation upon a mutual understanding to sever relations there and then. It looks more so upon considering the testimony of the other side. The two partners say this was not all of the interview; that the defendant replied to the words You can go now ” with “ As you wish ” or “ As you please.” This he denies. They also testify — and it is nowhere gainsaid, although he testifies in rebuttal — that the defendant further said, he believed there was some commission due him; that he" was told, the balance was due the firm, and he returned, “ If there is, I will pay it,” and that the defendant, upon being asked to write out what he wanted, went out of the counting-room and wrote out a request (put in evidence) for a complete statement of all the goods sold by him or through the firm to parties waited upon by him as a salesman, “from Jan. 1, 1898, to Dec, 6, 1898,” and with that said good-bye to the men outside and went away, without saying to either of the partners that he was going away. Both agree that no mention was made of the contract. The defendant also says that he went to his new employers and asked if they could give him anything to do until the beginning of the year. They said they had nothing, and that he looked through advertisements, but could not find any work. It would appear that his future employers, one or more of whom were also to come from the plaintiffs’ employment, were not then yet in business. The account, when made up, showed that the sales had not amounted to sufficient to bring the commissions up to the guaranteed amount, which, when allowed as of December sixth, left him indebted to the firm by reason of advances to the amount of fifty-three dollars and seventy-five cents. It was transmitted to him in January, with a request for a remittance as promised. Ho attention being paid to it, this action was commenced in the end of March. In one part of his answer the defendant admitted an indebtedness for advances of fifty dollar’s and another of sixty dollars and ten cents. He set up, by way of counterclaim, that while carrying out his contract of employment the plaintiffs wrongfully and unlawfully discharged him from their employment and refused to permit him to carry out his agreement, and for that reason he had “ suffered damages in the amount of the unpaid salary due under said agreement to January 1, 1898.” Upon the trial, the defendant having conceded the indebtedness to the plaintiffs of fifty-three dollars and seventy-five cents, as claimed by them, and having assumed the affirmative, the testimony stated above was elicited. The trial justice found in favor of the defendant, and as the words “ You can go now,” despite the construction apparently put upon them by the conduct of the parties during three months, are capable of being construed into a command to go as well as to an assent to an offer to depart, the determination of the learned trial justice that the defendant was in fact discharged may not be interfered with under the practice of this tribunal; but, inasmuch as the judgment contained an allowance of twelve dollars for some arrearages prior to December sixth, which could not be recovered herein under the pleading of the defendant (Tullis v. Hassell, 54 N. Y. Super. Ct. 391, 393), the judgment should be modified by being reduced that amount to twenty-eight dollars and sixty-two cents, and as so modified, affirmed, without costs.

Ebeedmah, P. J., and Leventbitt, J., concur.

■ Judgment reduced to twenty-eight dollars and sixty-two cents, and as so modified, affirmed, without costs.  