
    Charles Eden, Respondent, v. David Silberberg and Others, Appellants.
    
      Written agreement settling a strike of •employees and providing for an arbitration committee — an employee, working by the week, cannot recover for three days’ work by showing that the employer did not pay certain money agreed to be paid — he is bound first to resort to the arbitration—parol evidence to vary the written agreement is incompetent — qusere as to the validity of such an agreement.
    
    In action to recover for work, labor and services performed on the 9th, 10th and 11th days of March, 1903, by the plaintiff and his assignors, in the defendants’ factory, it appeared that the plaintiff and his assignors were employed by the week. In order to establish a legal excuse for not continuing to work during the entire week the plaintiff gave evidence tending to show that prior to February 28, 1903, a strike existed in the defendants’ factory; that upon that day the walking delegates of a labor union entered into a written agreement with the defendants providing that the striking employees should return to work in a body; that the defendants should pay them one-half day’s pay for Lincoln’s birthday and one week’s pay for lost time, and that all future difficulties should be settled by a court of arbitration.
    It further appeared that, pursuant to the agreement, the striking employees returned to work and the defendants paid them the one-half day’s pay for Lincoln’s birthday and one-half, of the week’s pay for lost time, and that, because of the defendants’ failure to pay the remaining half of the week’s pay for lost time, the employees quit work in the middle of the second week after they had returned to work.
    
      Held, that the failure of the defendants to pay the remaining half of the week’s pay for lost time did not, in the absence of any effort on the part of the employees to resort to the arbitration committee provided for in the agreement, constitute a legal excuse for leaving the defendants’ employ in the middle of the week;
    That parol evidence, that the plaintiff and his assignors had reserved the right in the written agreement to renew the strike in the event of the money not being paid, tended to vary the terms of the written agreement and was inadmissible. Quare, whether the contract was in accord with public policy or was binding upon the defendants.
    Appeal by the defendants, David Silberberg and others, from a judgment of the Municipal Court of the city of New York, borough of-Richmond, in favor of the plaintiff, entered on the 4th day of - August, 1903.
    
      Lawrence Goldberg and Joel M. Marx, for the appellants.
    
      Louis Steckler, for the respondent.
   Woodward, JV:

The plaintiff in this action, as the assignee of several of his fellow-employees, brings this action to recover for work, labor and services performed on the 9th, 10th and 11th days of March, 1903. The ' plaintiff and his assignors, it is conceded, were employed by the week, and it was, therefore, necessary to show that a full week’s work had* been performed, or to afford a legal excuse for not continuing to work during the week for which payment of á part is. now demanded. (Strach v. Hurd, 41 N. Y. St. Repr. 111.) This the plaintiff sought to do by showing that a strike had existed in the factory of the defendants prior to the 28th day of February, 19Q3, and that upon that day one George S. Robinsoti and James McCaulay, walking delegates of a labor union, as a committee, entered- into an agreement with the defendants whereby the cutters and slopers,” formerly employees of the defendants, were allowed to return to work in- a body, and "the defendants promised to pay them one-half day’s pay for Lincoln’s birthday and one week’s pay for lost time, and providing for the settlement of all future difficulties by a court of arbitration ; that the defendants had paid one-half of the amount and promised to pay the remainder, but had defaulted in this respect, and that the plaintiff and his fellow-laborers left in the middle of the Week because of the refusal of the defendants to make this payment. Upon the trial the learned Municipal Court permitted the plaintiff, over the objection and exception of the defendants, to introduce evidence tending to show that the plaintiff and his assignors had reserved the right in their written agreement to go out or renew the strike in the event of the money not being paid, and gave judgment for the plaintiff in the full amount of the claim.

If the written agreement constituted a valid contract, based upon a lawful consideration, then it was error to permit parol evidence to add to its terms. The paper not only provides for the return of the “ cutters and slopers ” in a body, but it assumes to make arrangements for all future difficulties between the contracting parties, and this is entirely inconsistent with the theory that they reserved the right to renew the strike in the event of the money not being paid. The contract, if it has any value, binds the plaintiff and his assignors, or such of them as were contemplated by the contract, to submit difficulties in the future ” to a committee of arbitration. It is conceded that the defendants had paid the one-half day allowance for Lincoln’s birthday, and that they had paid one-half of the week’s wages to each of the men involved in the original strike, and the contract having been partially performed on their part, the plaintiff and his assignors were bound, under the terms of 'their agreement, to submit the difficulties to a committee of arbitration. They could not arbitrarily determine the differences between them, acting in good faith and under the terms of their agreement. They were bound to make an effort to bring about an adjustment through the committee of arbitration on which they had agreed, before they could have any possible justification under their agreement. There was no suggestion of any effort on the part of the plaintiff, or of any of his assignors, to adjust this new -difficulty in the manner agreed upon, and their refusal to abide by the terms of an agreement, under which they had been paid money for which they had rendered no equivalent to their employers, can afford no justification for quitting the employment in the middle of a week. They were bound by their conceded contract of employment to work one full week as a condition precedent to their right to recover, and having refused to abide by their own agreement, which was obviously misstated by the walking delegates, to submit future difficulties to a committee of arbitration, it was error to admit parol evidence changing the terms and conditions of the written agreement, or to permit the plaintiff to recover in this action.

It is not necessary at this time to decide how far this contract was in accord with public policy, or how far it was binding upon the defendants. No consideration was expressed, and it is apparent that the defendants were coerced into making this agreement to pay for services which had never been performed, practically as a condition of being permitted to continue their business. Under such circumstances it may be doubted whether the contract had any binding force upon the defendants. Be that as it may, however, we are clearly of the opinion that the cutters and slopers ” having gone to work under the agreement, and having completed one week’s contract, for which they had been paid, and having entered upon the second week’s employment, after having received a portion of the consideration promised by the defendants in the agreement, there was no legal excuse for their quitting work during the performance of this second week’s contract, particularly without making any effort to comply with the conditions of their owii contract. The agreement, as interpreted by the plaintiff, is altogether too one-sided ; it is wholly lacking in mutuality and affords no basis for recovery in this action.

The proof as to some of the claims, it is suggested, is defective, but in view of the fact that the judgment should be reversed generally, it is not important that they be here considered. There was no time specified in the agreement when the money should be paid by the defendants, and the mere fact that they did not pay. the same at a time arbitrarily fixed upon by the walking delegates, in the absence of an effort on the part of the employees to resort to the arbitration-committee provided for in their agreement, does not constitute a legal excuse for failure to comply with the terms of weekly employment, and upon this ground the judgment should be reversed.

The judgment appealed from should be reversed, with costs.

HiBsohbero, Jenks and Hooker, JJ., concurred ; Bartlett, J., concurred in result.

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