
    Max Fischer, Respondent, v. Joseph Conhaim et al., Appellants.
    (City Court of New York, General Term,
    May, 1901.)
    Services — When inferred to he “ satisfactory ” to employers.
    Where a foreman is employed for one year at a weekly salary and is also promised a weekly bonus if his services during the term are •• satisfactory ” and this is coupled with a proviso that he may be discharged at any time if his services are not “ up to our (his employers’) expectations,” in which case he shall receive no bonus, the completion by the foreman of his term of service sufficiently indicates that his services were “ satisfactory ” and precludes the employers, in an action by the foreman’s assignee to recover the bonus, from" proving that they were unsatisfactory.
    Appeal from a judgment for the plaintiff, entered upon a verdict, and from an order denying the defendants "a new trial.
    One Max Spiro contracted with the defendants to serve for one year as foreman at twenty dollars per week, and the contract also contained the following provision: “If your services during the term of this agreement are satisfactory to us, you shall receive at the expiration of this agreement, a bonus equivalent to the sum of five dollars for each -and every week during the term of this agreement, reserving the right to discharge you and terminating this agreement, before its expiration, at any time we think your services are not up to our expectations, in which case you shall not be entitled to any part of the bonus aforesaid mentioned.” Max Spiro worked for one year and was paid his salary, but the defendants refused to pay him .the bonus. Action was brought by the plaintiff, his assignee.
    H. V. Rutherford, for appellants.
    Joseph Wilkenfeld (John D. Connolly, of counsel), for respondent.
   Hascall, J.

We think that the court did not err in refusing permission to defendants to testify that Spiro’s services were unsatisfactory. The fact that they withheld the bonus, or premium, upon good service, to the extent of withstanding suit to recover the same, was quite sufficient to show the operation of defendants’ minds; and it would he idle now to say that they are-dissatisfied, or were so when plaintiff’s year of service had' expired. Whether or not there was unfaithfulness oh plaintiff’s part, and whether the masters were or were not willing to overlook alleged breaches of duty in the servant (Gray v. Shepard, 147 N. Y. 177) seem to have been questions answered by the jury against the defendants in finding that if so committed they were overlooked.

The parties to the contract said if the services during the agreement “ are satisfactory ” the employee should receive a bonus, reserving the right to discharge him at any time when the defendants thought the services not up to our expectations ”. Discharge was not made, so that, inferentiallv, the services were, during the agreement, satisfactory. Conversely, the defendants thought the services were up to their expectations, whether satisfactory or not. They might have expected plaintiff to turn out to be but an indifferent workman, and yet, having the right of discharge, at any time, reserved, were quite willing to give him a trial. Since the defendants did not exercise this right of discharge and terminate the employment, can they now arbitrarily say that they are not satisfied because the services did not come up to their expectations, and defeat a claim that the jury have found, as a fact, to be just and well founded?

We discover no error in the charge delivered by the court below.

Judgment and order should be affirmed, with costs.

Fitzsimons, Ch. J., and O’Dwyer, J., concur.

Judgment and order affirmed, with costs.  