
    Frank A. Selah, Respondent, v. The New York Times Company, Appellant.
    First Department,
    January 24, 1908.
    Master and servant — contradi to increase salary construed.
    Action to recover for services performed under air alleged written contract by the defendant increasing the compensation in proportion to the employee’s success. Evidence examined and held, that a finding that the contract was signed ■ by the defendant’s agent was against the weight of evidence.
    An alleged contract employing the manager of the advertising department of a . newspaper which at the time was doing $34,000 worth of business a year, which . states that the defendant emplojred the plaintiff at $45 per week/” and $10 per week additional for every $80,000 in advertising secured by him or through his efforts ” should be construed to mean, not that the plaintiff was entitled to the $10 increase in salary by merely continuing the amount of business already achieved, but that he was only entitled to the additional' sum each time he increased the amount of business $30,000.
    • Appeal by the defendant, The New York Times Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of Hay, 190.6, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1906, denying the defendant’s motion for a new trial made upon the minutes.
    
      Edwin C. Vogel of counsel [Leopold Wallach and Alfred A. Cook with him on the brief], for the appellant.
    
      W. M. Seabury, for the respondent.
   Clarke, J.:

The plaintiff entered into the employment of the defendant on the 12th day of November, 1900, and continued therein until the 28th day of November, 1903. He had charge of a section of the advertising department of the paper known as the classified advertising, and seems to have successfully conducted the work intrusted to him and to have very largely increased the amount of such advertising done by the paper. It appears that in the year prior to his employment the amount received for advertisements known in the business as classified advertising was about $34,000, while in the last year of his employment the amount of such advertising was $123,860. The plaintiff made out the payrolls of his department and signed receipts for the amount of weekly salary received by him, which read “in full of all demands” to and including the date expressed therein. He received $45 a week from the commencement of his services to the 27th of May, 1901; he received $55 a week from said date to December 28,1901; $65 a week from said date to September 17,1903, and $75 per week to the time that lie severed his connection with the defendant. It is conceded by the plaintiff that he has received payment in full of all the sums entered upon the payroll certified by him as due him for weekly salary and for which he gave the weekly receipts as heretofore indicated.

He claimed to be entitled to recover $3,880, with interest thereon, in addition to the sums received by him, upon the contract of employment claimed by him to have been made at the time he entered into the service. In support of this claim he offered in evidence the following paper writing :

"New York Times, 'All the news that’s fit to print.’
“ New York, Nov. 9, ’Ó0.
“ The New York Times agrees to pay Frank A. Selah ($45) per week and ten dollars ($10) per week additional for every thirty thousand ($30-,000) dollars in advertising secured by him or through his efforts. J. N.”

Plaintiff testified that the body of the paper was written by him and that the signature was written by John Norris, the business manager of the defendant, in his presence, after an interview with Mr. Ochs, the publisher - of the - defendant. Mr. Norris denied having signed the- paper and testified that he had never seen it until produced in the court room upon the trial, and Mr. Ochs ' denied ever having made or authorized the alleged contract. They both testified that the plaintiff had a talk with them and did desire a contract or an arrangement by which, he would get a fixed salary and an additional amount in the shape of a-percentage or a commission provided he achieved certain results in the increase of the amount of the advertising; but that they refused to enter into such an arrangement, and that the agreement was that the plaintiff should enter into the service of the defendant at a salary of $45 ]ier week, and that if he was successful in materially increasing the business he might rely upon an appreciation of his services and such increased salary as they thought his services were worth; that his ■services had been successful and that appreciation thereof had beern shown by successive increases of salary until the amount finally arrived at the figure of $75 per week.

There was here presented a sharp question of fact upon the terms of the employment. Upon-'the one side, the testimony of the plaintiff and the written memorandum claimed to have been signed- by ■ Mr. Norris with his initials ;■ upon the other, the positive denial of the publisher and the business manager, supported by the payrolls and the receipts. This question was resolved by the jury in favor ' of the plaintiff.' •

When the extraordinary character of the contract is taken into consideration, and the fact that it was signed only by initials, and that the authority to make it and the fact of its having been made were absolutely and unequivocally denied by two witnesses, the evidence in support of the factum was required to be clear and convincing. The plaintiff became involved in a maze of contradictions as to' the time wlieii and the circumstances under which he alleged the paper was signed, from which .lie did not succeed in extricating himself. A flat denial of an important fact was met by a paper in his own handwriting, the authenticity of which he acknowledged, but of which lie attempted no explanation -whatever. While "these matters went to his credibility, and were in the first instance for the jury, yet, upoii the whole case, we are not satisfied that he sustained the burden of proof by a fair preponderance of the evidence.

There is another most important question,, and that is, assuming that the written agreement is authentic, wliat is the correct interpretation thereof? The plaintiff claims that starting with a salary of $45 a week, every time $30,000 of advertising in his department had been done he was entitled to an increase of $10 per week; that is to say, that if in the first year of his employment $30,000 of business was done, he would be entitled to $55 per week;■ that if in .the second year of his employment $30,000 of business was done lie would be entitled to $05 per week, although no more business was done in the second year than in the first. In other words, that for the mere continuance of the business at the same figure for any one period he would be entitled to the weekly increase of his salary. This seems to us to bo an entirely unreasonable interpretation of the contract, and that if the contract was entered into, it could only have meant that whenever the business liad increased to the amount of $30,000, that the increase in the salary should follow. That is to say, that if in the first period $30,000 worth of business had been done, he should be entitled to an increase in the next period, when $60,000 worth of business had been done. . In other words, the promise of the ■ increased wages defended upon increased business, and not upon a mere continuance of that' which had already been achieved. Tie testified that when a newspaper had a certain kind of advertising business it was liable .to continue'to hold it, and he was told, which .was the fact, that in the year-prior to liis employment there-had been about $33,000 worth of classified advertising .dope, by. the defendant. Although he testified that this, was likely to continue, yet he made no allowance for this amount of business already estab-'; fished, but claimed for all of. the classified advertising' done during his employment. In the last year of his employment about $120,0.00 worth of business was done, and if we take, from consideration the $30,000 which belonged to the defendant at the time of Ms employment, it would leave.$90,000'worth done duriúg the last year, which, upon tlie interpretation of the contract which we think is the correct one, would have produced $15 a week salary for the. plaintiff, which was the identical sum'he was receiving at the.time he-left the defendant’s employ. It was legal error, we think, for the learned court to construe the contract as claimed by the plaintiff, and to direct the jury if they found that it had been made, to-return a verdict for the sum of $3,880 with interest.

The judgment and order appealed from should, therefore^ be reversed and a new trial 'granted, with costs- to appellant to abide the event, ' .

.Patterson, P, J., . Ingraham, Houghton and Soott, JJ..,. concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.  