
    Charles W. Swain, Resp’t, v. Denman Thompson et al., App’lts.
    
      (New York City Court, General Term,
    
    
      Filed December 8, 1893.)
    
    1. Appeal—Conflicting evidence.
    The terms of an agreement, where the evidence concerning them is conflicting, are a question of fact for the jury.
    2. Contract—Statute of frauds.
    A contract to employ for a certain number of weeks, perhaps a year, is not within the statute of frauds.
    
      3. Evidence—Custom.
    Evidence of a contract and the the terms thereof made with different persons is not the proper way of proving a custom, usage or understanding in a profession or business, so as to be binding or form part of the contract.
    
      Browne & Sheehan, for appl’ts; Dittenhoefer, Gerber & James, for resp’t.
   McCarthy, J.

—There is a marked dispute between the parties as to the terms and conditions of the contract. It is conceded that an agreement was made between them, but they differ widely as to its details. When the evidence is conflicting, it becomes a question of fact for the jury, and all the circumstances were submitted to the jury under proper instructions by the trial justice. They, by their verdict have found that the contract is as claimed by the plaintiff, and we cannot disturb this finding unless for some error of law. The question of the Statute of Frauds has been determined adversely to the appellants, in the able opinion of Bischoff, J., in Haines v. Thompson, 21 N.Y. Supp., 991; 51 St. Rep.,221, and this we must follow. The objection sustained to evidence of a contract and terms thereof made with different members of the company was certainly correct. It was not the proper way of proving a custom or understanding in the profession so as to be binding or form part of a contract. See Walls v. Bailey, 49 N. Y., p. 463, 468 and 470. Each of these witnesses testified, that the two weeks’ notice was specially agreed by each of them and this was simply an effort to show that the defendant had made contracts with others, this was immaterial and not binding on the plaintiff. The question here is what was the contract between the plaintiff and defendant and whether there was custom or usage in the profession as to a notice and right of the defendant to terminate such engagements and was the contract made with reference to or with knowledge of this custom or usage. The evidence proposed and objected to, did not as said before tend in that direction.

After a careful review and examination of the points suggested by the appellants, we are of the opinion, that no error has been committed, and that this judgment should be affirmed with costs.

Ehrlich, Oh. J., concurs.  