
    Simon W. Merrill, App’lt, v. Wakefield Rattan Company, Resp’t.
    
      (Supreme Court, Appellate Division, First Department,
    
    
      Filed January 24, 1896.)
    
    1. Appeal—Dismissal op complaint.
    Where the complaint is properly dismissed, the appellate court will not consider the point upon' which the dismissal was had, nor the reasons given by the trial court therefor.
    8. Master and servant—Termination op employment.
    The facts, in this case, were held to establish that, even if any contract of employment between plaintiff and defendant existed at any time, it was terminated by mutual consent.
    Appeal from a judgment dismissing the complaint.
    Plaintiff is a resident of Hew York City, and defendant a Massachusetts corporation, with its principal office in Boston. Prior to January11, 1892, plaintiff had been for a long time general manager of defendant’s office, at 924 Broadway, in the city of Hew York, at an annual salary of $2,500. In March, 1892, a new corporation was formed—the Wakefield Rattan Company of Hew York—-which took over the Hew York business of the defendant. The title to the property in Hew York was transferred to it, and it opened a bank account in its own name. Plaintiff became the president and director of this company. Ho salary attached directly to the offices, but his old one continued in force, and was paid by checks of the Hew York company. His duties remained, in character, the same ; but his services now forwarded si business which, in name, belonged, not to defendant, but to the Rew York company. On February 15, 1893, defendant wrote to plaintiff, requesting his resignation as president and director of the Rew York company, and that his connection with the business cease upon its acceptance. The next day he wrote, tendering his resignation unconditionally. The day succeeding, defendant wrote, accepting the resignation, authorizing him to draw his salary to March 1st, and directing him to terminate his connection with the company at the close of business the next day, February 18th. He sues to recover the unpaid balance of salary for the year 1893 at the rate of $2,500 per annum. He was defeated upon the ground that he entered the service of the Rew York company on March 11, 1892, and that the defendant ceased to be liable to him from that date.
    Bacon & Van Steenbergh, for app’lt; John S. Davenport, for resp’t.
   BARRETT, J.

— We need not consider the point upon which the complaint was dismissed, nor the reasons given by the learned judge for the -dismissal. It was properly dismissed, if, for any reason the plaintiff had no legal claim against the defendant. Row, assuming that the contract relation between the parties was unaffected by the formation of the Rew York company, or by the position in that company which the plaintiff took, still that contract relation terminated by what transpired when the plaintiff finally retired. At that time he not only resigned from the Rew York company, but completely severed his connection with the defendant’s business. He did not resign with a reservation, did not even suggest a Continuing contract with the defendant, and never again offered his services. On the contrary, although his resignation occurred on the 18th of February, he accepted his salary for the current month, namely, until the 1st of March, and then, without a word of complaint or objection, turned over to his successor the keys of the store, and the books of account and papers in his possession. It is quite immaterial how the resignation was brought about. The defendant requested it, and the plaintiff gave it Possibly—probably, even — a refusal to resign would have been followed by a dismissal, but still there was no compulsion. There was a strong intimation of what was impending, but there was in fact no dismissal and no breach. The contract was canceled by mutual consent, and that is necessarily the end of plaintiff’s case.

The complaint was properly dismissed, and the judgment appealed from should be affirmed, with costs.

All concur.  