
    Meyer Stein, Respondent, v. Harry Kooperstein and Samuel M. Schwartz, Appellants.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Master and servant — The relation — Duration — Hiring at a certain rate not a hiring for the period by which the rate is fixed.
    A contract of employment by which defendant agreed to pay plaintiff at a certain rate for the first six months “ being thirty dollars per week, payable weekly,” and at a certain other rate for the second six months “ being thirty five dollars per week, as and for his salary, payable weekly,” was an indefinite hiring and not for the period of a year.
    In an action for a wrongful discharge under a hiring for a year the plaintiff would have been entitled to recover only the damages sustained up to the time of the trial.
    Appeal by the defendants from a judgment of the City Court of the city of New York, entered in favor of the plaintiff by direction of the court.
    Julius G. Kremer, for appellants.
    Henry Kuntz, for respondent.
   Blanchard, J.

This is an appeal from a judgment recovered by the plaintiff for alleged wrongful discharge from the defendants’ employment. The contract of employment provided that the defendants agree to pay to the plaintiff “ at the rate of seven hundred and eighty ($780) dollars for the first six months, commencing January 22nd 1906, being thirty ($30) dollars per week, payable weekly, and at the rate of nine hundred and ten ($910) dollars for the second six months being thirty five ($35) dollars per week, as and for his salary, payable weekly.” The court directed judgment for the plaintiff, who was discharged March 5, 1906, for $960, on the theory that the contract stated a yearly hiring. According to the rule stated in Martin v. New York Life Ins. Co., 148 N. Y. 117, “hiring at so much a day, week, month or year, no time being specified, is an indefinite hiring, and no presumption attaches that it was for a day even, but only at the rate fixed for whatever time the party may serve * * * A contract to pay one $2500 a year for services is not a contract for a year, but a contract to pay at the rate of $2500 a year for services actually rendered, and is determinable at will by either party.” The contract in the present case clearly falls within the rule thus stated; moreover, ihe contract was made in January, 190(5, the discharge occurred in March, the action was brought in April and tried in October. If the contract of employment had been for a year, as the plaintiff contends, he would be entitled to recover only for the damages he had sustained up to the time of this trial of the action; and it was error not to submit the question of damages to the jury. The judgment must be reversed and a new trial ordered.

Gildebsleeve and Dayton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  