
    Samuel Cully, as Administrator, etc., of Samuel A. Cully, Deceased, Respondent, v. Francis N. Isham, Appellant.
    Fourth Department,
    March 4, 1908.
    Master and servant — when contract of hiring entire — interest on successive balances.
    Evidence in an action to recover wages examined and held insufficient to establish that the services were rendered under separate contracts ending with each calendar year, but that the contract was single and continuous, terminable at any time at the will of either party.
    Such contract being single and continuous, the plaintiff is not entitled to recover interest on balances unpaid at the end of each year, but only from the time of the commencement of the action.
    Spring, J., dissented.
    
      Appeal by the defendant, Francis E. Isham, from a judgment'of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 2d day of July, 1906, upon the report of a referee.
    
      Charles D. Newton, for the appellant.
    
      Fletcher C. Peck, for the respondent.
   Robson, J.:

Plaintiff’s intestate was employed by defendant; his duties including those of clerk, bookkeeper and general utility man, from April 9, 1892, to December 31, 1899. The rate of wages he was to receive was agreed upon when he began his service at seven dollars and fifty cents per week. This was increased at the beginning of the year 1893 to nine dollars. At the end of that year it was increased to ten dollars, at which rate it continued till about August 1, 1894, when it became twelve dollars per week, and remained at that rate till the termination of his employment. Deceased, at the beginning of his service, opened an account in his employer’s books between the latter and himself, in which he entered amounts of cash charged to himself, at intervals extending over the period of his service. Eo entries were made in the books or credits given therein for or on account of his wages. There was not at any time a settlement between deceased and defendant, and the cash entries already referred to are the only entries apparently relating to this wages account appearing in defendant’s books of account, or elsewhere.

The referee has found, basing this conclusion to some extent, apparently, upon a statement of account furnished by defendant to plaintiff after the death of intestate, that the contract of hiring, under which the services were rendered, was separable, the separate contracts ending with- each calendar year during the term such service continued, and, therefore, that plaintiff was entitled to recover interest on the balance of wages remaining unpaid at the end of each year. We do not think that the testimony shows that this was either the agreement or understanding of defendant and deceased as to their contract. It is true that at the end of each of two calendar years during the term deceased’s wages were.raised. JBut that it was not understood that the hiring was for a year or any definite period appears clearly from the fact that about August, 1894, deceased negotiated with one Anderson with a view to entering his employment, and defendant and deceased thereafter agreed that, if the latter would continue in defendant’s employ, the wages he should receive should be twelve dollars per week, an increase of two dollars. If deceased had been hired for that year, why should he when his contract was but half completed be negotiating for other employment, and why should defendant voluntarily make this material increase in the wages he was paying, when, if the hiring was for a year, he was entitled to at least five months’ service at the existing rate % As was said by this court in Shafer v. Pratt (79 App. Div. 447, 450) : “ The question whether various items for services constitute a single, entire cause of action, or whether they are respectively different and distinct claims, is not always free from difficulty. Courts must bring somewhat to their aid in its solution considerations of expediency, of reasonable enforcement, of usage, and of what may be supposed to have been the intent of the parties.” The intent of the parties is not always clearly disclosed; but in this case it does appear that the parties did not look upon or treat the contract of hiring as one from year to year, but rather as a single continuous contract, terminable, however, at any time at the will of either party thereto. (Smith v. Velie, 60 N. Y. 106; Denise v. Denise, 110 id. 567.)

Another consideration pointing unmistakably to the same conclusion is found in the form of pleading adopted by plaintiff. He has chosen to group in his first cause of action all claims for unpaid wages remaining during the years 1892, 1893, 1894 and 1895, ending the statement of this separate cause of action with the words, “that there remains due and unpaid thereon the sum of §725.32, with interest thereon from January 1st, 1896.” Unless it was intended to treat the contract of hiring as single and continuous during that period, and not as one maturing at the end of each year of the term in a separable, contract upon which the balance of wages unpaid would then become due, why was this form of pleading adopted ? It was not adopted because it was claimed that there was any new oral or written contract then actually made to begin with the year 1896, or that there had been any settlement, or demand, or negotiation looking to a determination of the amount of unpaid balance remaining at the close of the year 1895, for nothing of the kind appears in evidence, and tire rate of wages remained the same for the first' part of the year 1896 as it had been during the two previous years. Perhaps the query may he answered by the suggestion that, if the services performed by deceased during the first two years of this period, had been pleaded as having been rendered in fulfilment of separate contracts terminating with the year, the Statute of Limitations would have furnished a completé defense to each of these two separate causes of action. It does not seem consonant with the rules by which pleadings are tested and construed, nor, indeed, with ordinary business fairness, to permit plaintiff to insist that the same agreement was single and continuous up to the point where his interests are served by such a claim, and assume a different position as to the same contract by pleading it thereafter as separate and separable when his interests will be more fully served by that interpretation. Plaintiff was entitled to recover interest on the claim from the time of commencement of the action. (McCollum x. Seward, 62 N. Y. 316.)

The judgment should be reversed and a new trial granted with ■ costs to appellant to abide the event, unless plaintiff within twenty days consents that the same be reduced by deducting therefrom the amount allowed by the referee as interest on the claim prior to the commencement of the action, in which event the judgment, as so modified, is affirmed, without costs.

All concurred, except Spbing-, J., who dissented and voted for affirmance.

Judgment reversed and new trial ordered before another referee, with costs to appellant to abide event, unless plaintiff within twenty days consents that the verdict be reduced by deducting therefrom the amount allowed by the referee as interest on the claim prior to the commencement of the action, in which event the judgment is modified accordingly, and as so modified affirmed, without costs to either party.  