
    Oswald Maune, Appellant, v. Unity Press, Respondent.
    ■ Second Department,
    July 29, 1910.
    Practice— judgment on pleadings — section 547, Code Civil Procedure, applies to Municipal . Court — master and servant — contract of employment construed.
    The provisions of section 547 of the Code of Civil Procedure authorizing judgment upon the pleadings after issue joined apply to the Municipal Court of the ■ city of New York.
    A contract appointed the plaintiff manager of the defendant’s business for ten years at a salary of $100 per week, payable $50 in cash per week; the balance, “being the difference.between the whole amount paid in cash on account of wages and the total amount of wages at One Hundred ($100) Dollars per week ” for the number of weeks the plaintiff had served, to be paid in stock of the defendant “as the sum so due and unpaid will purchase at One Hundred ($100) Dollars per share.” The number of shares so issued were at no time to exceed 100.
    
      Held, that the plaintiff was entitled to $10.0 per week during the entire time, and that until he had received stock of the value of $10,000, he was entitled'to $50 in cash and $50 in stock per week and from that time forward $100 in cash.
    Appeal by the plaintiff, Oswald Maune, from a judgment, of the Municipal Court of the city of Hew York, borough of Brooklyn in favor of the defendant, rendered on the 5th day of January, 1910.
    
      Cromwell G. Macy, for the appellant.
    
      Charles E. Hotchkiss [W. MacFarland Lord with him on the brief], for the respondent.
   Rich, J.:

The plaintiff appeals from a judgment of the Municipal Court dismissing his complaint upon the merits, and in favor of the defendant for $500 damages, upon an alleged counterclaim in an action brought to recover a balance averred to be due the plaintiff for his services as general manager of the defendant. Mo evidence was given upon the trial. The defendant first moved to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. This motion was granted and counsel for plaintiff excepted. The defendant then moved, “ on the bill of particulars and on the pleadings, for judgment on the counterclaim for $500, the extent of the jurisdiction of this court,” the court saying: “Motion granted. Judgment on the pleadings and on the counterclaim is granted to the extent of five hundred dollars in favor of the defendant against the plaintiff.” To this ruling the plaintiff excepted. It is contended by the learned counsel for the respondent that the ruling of the court is justified by the provisions of section 249 of the Municipal Court Act (Laws of 1902, chap. 580) and section 547 of the Codé of Civil Procedure. The latter section provides that “ If either party is entitled to judgment upon the pleadings, the court may, upon motion at any time after issue joined, give judgment accordingly.” This section is a portion of title 2 of chapter 6, and was inserted in such chapter by chapter 166 ofAlie Laws of 1908. Subdivision 4 of section 3347 provides that the whole of chapter 6 applies only to an action commenced on or after September 1,1877, in the Supreme Court, the City Court of the city or Mew York or a County Court. At the time this subdivision became operative, and at the time of the last amendment of the section of which it forms part, in any manner affecting its provisions, section 547 did not exist. On September 1, 1902, the Municipal Court Act became an operative law, section 20 providing that the provisions of the Code of Civil Procedure shall apply to the Municipal Court as far as the same can be made applicable, and six years thereafter section 547 was enacted, added to chapter 6, becoming operative on September 1, 1908. I think that the provisions of section'547 are properly applicable to the Municipal Court.

The plaintiff’s cause of action rests upon a contract evidenced by a resolution ■ duly adopted by the defendant, alleged in full in the complaint and admitted by the- defendant. It is further alleged, and not denied, that under such contract the plaintiff entered upon the discharge of his duties on April 17,' 1905, and continued in defendant’s employ until November 13, 1909, a period of 238 weeks, during which time he was paid by the defendant $23,362.01.

No claim was made by either party that the contract is ambiguous, or required any oral testimony to explain.its provisions,and the only question before the trial court was one of law arising upon the pleadings. The procedure of the trial court was right, but the. conclusion reached and construction given the contract were wrong.

The resolution upon the provisions of which the plaintiff’s cause of action rests is as follows: “On motion duly adopted, Oswald Maune was appointed general manager of Unity Press, and a contract authorized to be entered into between Oswald Maune and Unity Press which should contain the following conditions. That the said Oswald Maune shall agree to enter the services of Unity Press as general manager and promise faithfully, honestly and diligently to give and devote his. time and -labor exclusively to Unity Press for the space of ten years from April 19th, 1905. In consideration whereof the said Unity Press shall agree to allow and pay said Oswald Maune at the rate of One Hundred ($100) dollars per week, and payable- as follows, to wit: Not more than Fifty ($50) dollars per week in cash, the balance remaining due and unpaid, being the difference between the whole amount paid in cash on account of wages and the total amount of wages at One Hundred' ($100) Dollars per week for the number of weeks that he shall have faithfully and truthfully performed the duties of manager, shall be paid by issuing to him in his name shares of the common stock of the company as the sum so due and unpaid will purchase. at One Hundred ($100) Dollars per share. The number of shares so issued shall at no time exceed One hundred. That if Oswald Maune or Unity Press refuse, neglect or fail to faithfully and truthfully perform any condition or conditions of this agreement that it shall cease to be binding upon either party thereto.”

It is the contention of the defendant that as soon as the 100 shares of stock had been earned by plaintiff, his compensation for services rendered thereafter was thereby reduced to $50 per. week. This contention I believe to be without merit. The ruling was erroneous, and not warranted by the resolution. The contract plainly evidences the intent of the parties; it provides in effect that plaintiff should be paid the sum of $100 per week for his services during the entire time; that until such time as plaintiff became entitled to receive stock of the value of $10,000, such compensation should be paid $50 in cash and $50 in stock per week, and from and after the time when such stock allowance equalled the par value of the stock to which plaintiff’s right of acquisition was limited by the contract he was entitled to receive and be paid weekly compensation of $100 in cash. That this was the construction given by the parties themselves is apparent from the fact that the defendant paid plaintiff during the time he served as its general manager at the rate of $100 per week, with the exception of the $437.99 he seeks to recover in this action.

It follows that the judgment of the Municipal Court must be reversed and a new trial ordered, costs to abide the event.

Jenks, Bübe, Thomas and Cabe, JJ., concurred.

Judgment of the Municipal Court reversed and a new trial ordered, costs to abide the event.  