
    Charles M. Adams, Pl’ff and Resp’t, v. James G. Fitzpatrick et al., Def’ts and App’lts.
    
      (New York Superior Court, General Term,
    
    
      Filed April 15, 1889.)
    
    1. Contract—Of employment—When new employment presumed
    Where one is employed by the year at a certain annual salary, and he continues in such employment after the expiration of the year, the law presumes a new employment for another year at the same compensation.
    2. Same—When not void under statute of fraud — Legal presumption.
    Where a contract is made verbally for the hiring of an employee for more than a year at a certain annual salary, which is paid, and the employee continues in the said employment after the expiration of the time, the contract having been fully executed is not void under the statute of frauds, as the statute only refers to executory contracts—and there is no legal presumption that the second implied contract of service was for the same period of time as the first, hut the law implies that the second employment was for one year at the same rate of compensation.
    On October 15, 1885, the defendant engaged the plaintiff as a salesman from that day until November 1,1886, at the rate of $3,000 per year. The plaintiff entered upon the employment on the day of the engagement, and was paid at the rate of $3,000 a year until the 1st of November, 1886. After that date, nothing being said by either party about the terms of a continuance of the employment, the plaintiff remained with the defendant, receiving pay at the same rate as before.
    On March 24, 1887, the defendant notified the plaintiff that he would be discharged on the first of May following; that his engagement must then cease, and that his services were thereafter no longer needed.
    On the latter day, the plaintiff left the defendant’s employ, in compliance with the notice.
    From the time of this notification of discharge, the plaintiff sought diligently for other similar positions, and in the latter part of April obtained one for a period of six months, to begin May 1, 1887, with a salary set at the rate of $2,000 per year.
    The plaintiff brings this action for damages, claiming under an implied contract for a year from November 1, 1886.
    
      Cardoza & Newcombe, for app’lts; Dill, Chandler & Seymour, for resp’t.
   Per Curiam.

The prior employment was at a fixed salary, and as the services continued beyond the period fixed by the original contract, the presumption is that the salary was at the same rate. Vail v. Jersey L. F. M. Co., 32 Barb., 567; Ross v. Hardin, 79 N. Y., 84.

On the facts, there is no legal presumption that the second contract o£ service was for the same period of time as the first.

In cases where an employment is continued immediately after the performance of a prior contract of service of the same kind for a term longer than one year, the law implies a second employment for a term of one year, unless, of course, there is something in the circumstances of the case which overcomes this implication. Greer v. Peoples’ Telephone, etc., Co., 50 Supr. Ct., 517.

The appellant, at the trial, took another exception than that alluded to above, and presented his points. The exception has been examined, and no error is found to have been made by the referee.

The judgment should be affirmed, with costs.  