
    (35 Misc. Rep. 129.)
    BRALL v. CLAUSEN.
    (City Court of New York, General Term.
    May, 1901.)
    Contract of Employment—Discharge.
    Where an employs is serving under a contract providing for his discharge should the employer “find” the employé “unfaithful or improper in the performance of his duties,” the employer cannot arbitrarily discharge him.
    Appeal from trial term.
    Action by William H. Brail against William Clausen. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.
    Argued before SCHUCHMAN and DELEHANTY, JJ.
    Lamb & Voss (Daniel W. Guernsey, of counsel), for appellant.
    William T. Matthies (Jerome Eisner, of counsel), for respondent.
   SCHUCHMAN, J.

This action was brought to recover from the defendant the sum of $1,950 as damages for an alleged wrongful discharge from employment, as salesman for the sale of picture frames and other merchandise, under a contract in writing. The contract was a hiring for the period of three years from August' 15, 1898, at a weekly salary of $25.. The contract of hiring, as well as the discharge on January 20, 1899, is admitted. In regard to. the discharge, the defendant pleaded justification, in that the plaintiff refused to obey instructions, was uncivil and insolent to the defendant and his customers, slept during business hours, sold goods, for higher prices than they were marked, wrongfully converted two. pictures to his own use, and did not properly measure pictures for framing. The defendant maintained that he was justified in discharging the plaintiff on the aforesaid grounds, by reason of the-following provisions contained in the written contract, to wit:

“(1) The aforesaid employment of the party of the second part by the-party of the first part is conditioned always upon the faithful and obedient and proper performance of all duties pertaining to such position: provided, that should the party of the first part find the party of the second part unfaithful or improper in the performance of his duty, or in any manner inefficient therein, he shall have the right to terminate his employment upon service by due notice in writing. (2) The party of the second part agrees to faithfully and properly perform all services and duties as he may be called upon to perform by the party of the first part, and to-faithfully and properly discharge all duties pertaining to said business.”

At the trial evidence was submitted by both parties in regard to' the faithful, proper, and efficient discharge of the plaintiffs duties, as salesman, and also in regard to his demerits in that respect. The conflicting evidence in regard to the proper and faithful performance of the plaintiffs duties was submitted to the jury by the trial judge, in a charge to which no exception whatsoever was taken, the judge stating:

“If you believe that during the plaintiff’s employment he did not give-his proper and faithful attention to the business; and was not as obedient as an employé should have been, or misconducted himself in any particular, then you have a right to find for the defendant. On the other hand, if you are satisfied that his conduct was proper, that he was faithful and attended to all his business, it will then be your duty to render your verdict in favor of the plaintiff.”

The jury rendered a verdict for the plaintiff for $500. The defendant claims that the verdict is an unjust one, and that he had a right, under the provisions of the contract, to discharge the plaintiff at any time, at his own volition, arbitrarily and capriciously, without any cause whatsoever, whenever the plaintiff’s services proved unsatisfactory to his mind, and that no judicial tribunal could interfere with his determination. And he relies upon the cases of Tyler v. Ames, 6 Lans. 280; Spring v. Clock Co., 24 Hun, 175. In those two cases, however, the provision of the contract was that the salesman “could fill the place satisfactorily,”—in other words, to the employer’s satisfaction. In the case at bar, however, the contract; reads, “should the party of the first part [the employer] find the party of the second part [the employé] unfaithful or improper in the performance of his duty, or in any manner inefficient therein, he shall have the right to terminate his employment.” We think the true rule applicable to the construction of such a contract is that if, for good and sufficient reason, the employer finds the employé unfaithful, he may then discharge him; that that which the law will say a contracting party ought in reason to he satisfied with, that it will say he is satisfied with. Boiler Co. v. Garden, 101 N. Y. 387, 4 N. E. 749, 54 Am. Rep. 709; Smith v. Robson, 148 N. Y. 252, 42 N. E. 677. This latter rule seems to have been applied by the trial judge, and we find no error therein.

At the trial, when the plaintiff rested his part of the case, the defendant’s attorney said, “We make the usual motion to dismiss,” which was denied and an exception taken. This motion was not renewed at the end of the trial, and we maintain that the exception is not a good one.

Judgment and order appealed from affirmed, with costs.

DELEHAYTY, J., concurs.

Judgment and order affirmed, with costs.  