
    Max Edelsohn, Resp’t, v. The Singer Manufacturing Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    Contract—Construction.
    Plaintiff entered defendant’s service as “ collecting salesman,” at which time he deposited one hundred dollars “ to secure the honest and faithful performance of his duties as collecting salesman, or otherwise,” which sum was to he returned to him sixty days after the “termination of his employment.” He continued as collecting salesman some time; was then appointed canvassing agent, and remained in the latter capacity over two months, when he quit defendant’s service, and in less than sixty days brought suit to recover the hundred dollars deposit. Held, that the complaint should^ be dismissed, the action being prematurely brought, as the security was intended to extend to the performance of plaintiff’s duties in any capacity while in defendant’s employ.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the fourth judicial district. Action for money had and received; .the defense being that it was prematurely brought.
    
      Samuel I. Frankenstein, for resp’t: Booraem, Hamilton & Beckett, for app’lt.
   Bischoff, J.

The evidence adduced for plaintiff on the trial did not authorize his recovery, and the judgment should be reversed.

It appears that on January 14, 1892, plaintiff entered defendant’s service as “ collecting salesman,” at which time, as a condition of his employment, he deposited with defendant one hundred dollars to secure the faithful performance of his duties; which sum was to be returned to him, pursuant to the terms of the certificate of deposit issued to him by defendant, sixty days after the “termination of his employment.” He continued as such collecting salesman until the succeeding April 12th, when he was appointed its canvassing agent, and remained in the latter capacity until June 25th, when he .quit defendant’s further service. This action was commenced within less than sixty days thereafter.

That the security deposited was intended by both parties to extend to the performance of plaintiff’s duties other than those of a “collecting salesman” is apparent from the language “to secure the honest and faithful performance of his duties as collecting salesman, or otherwise,'' which occurs in the certificate of deposit introduced in evidence for plaintiff; and though the duties at first assigned were changed on April 12th, the employment, from plaintiff’s admission, was continuous and without interruption until June 25th. True, plaintiff testified that he quit the service on April 12th and at once re-entered it as canvassing agent, but this involves no more than his own interpretation of the effect of the change in the character of his employment, with which we do not agree.

Upon the facts, therefore, plaintiff can in no event succeed ip this action and a new trial would be a useless formality. The judgment is reversed and judgment absolute for dismissal of the complaint rendered, with costs below and of this appeal to defendant

Pryor, J., concurs.  