
    George E. Bacon, Resp’t, v. The New Home Sewing Machine Co., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 13, 1891.)
    
    1. Master and servant—Discharge—Tender of service.
    Where a servant employed by the year is discharged before the termination of the term on the ground that the master had nothing further for him to do. with a statement that if his services were required work would he gladly given him, and he is paid to the first of the following month, it is not necessary for him to re-tender his services in the following month in order to hold the master liable for breach of the contract.
    2. Same—Term of employment.
    
      Semble, that the law of Massachusetts in relation to the continuation of a contract of employment by the year does not differ from that of this state.
    Appeal from judgment entered upon verdict and from order denying motion for new trial.
    
      R. S. Crane, for app’lt; H. S. Bennett, for resp’t
   Van Brunt, P. J.

This action was brought to recover damages for an alleged unlawful discharge of the plaintiff by the defendant before the termination of the contract of employment. The evidence showed that the plaintiff had been employed by the defendant for a year" from April 29, 1884, at a yearly compensation, and that upon the termination of this year of employment he continued in the employ of the defendant without any new or express agreement being entered into.

In December. 1885, he was discharged by the defendant upon the ground that the defendant had nothing further for him to do, and the statement was made at the time of the discharge by one ■of the officers of. the company, sworn to by the plaintiff and not •contradicted by the defendant, that if it found it required his ■services it would gladly give him work. At the time of the discharge plaintiff claimed that his term of employment did not expire until April 29th following.

Testimony was offered showing that defendant’s place of business was in Massachusetts and that the law of Massachusetts was that where there was no express written or oral stipulation which fixed the time for the employment, that that element of the contract depended upon the understanding and intent of the parties, which could be ascertained only by inference from their written and oral negotiations, the usages of the business, the situation of the parties, the nature of the employment, and áll the circumstances of the case, and that this inference was to be drawn only by the j ury; in other words, that the jury were to determine What was the contract existing between the parties at the time of the employment. The case having been submitted to the jury, a -verdict was rendered in favor of the plaintiff and from the judgment thereupon entered, and from an order denying a motion for •a new trial, this appeal is taken.

It is claimed upon the part of the defendant that the plaintiff having been paid up to the 1st of January, 1886, for a time longer than he was rendering service, it was his duty immediately thereafter to tender his services or do an equivalent act

Under the circumstances of this case we do not think that this was at all necessary. The plaintiff was absolutely discharged by the defendant upon the ground that it had nothing for him to do. It was also stated to him that if it found anything for him to do it would gladly give it to him to do. The defendant had taken its position that it had a right to discharge the plaintiff, one of its officers stating that the plaintiff ought to think himself well off that he was paid for the time he actually spent in the employ of the defendant The plaintiff protested and insisted that his employment extended to April following. This was denied and he was told to go. Under these circumstances there does not seem to have been any necessity for his making a re-tender of his services. It would have been going through an idle ceremony ; and it was rather his duty to seek other employment in order that he might lessen the damages which the defendant might be called upon to pay for the breach of the contract if it was found to be a yearly contract

It is also urged that the contract in question was a Massachusetts contract, and is to be governed by the Massachusetts law, and that the laws of Massachusetts and of this state are different in reference to the continuation of a contract where its original term had expired.

We have examined with care the case to which attention has been called, Tatterson v. Mfg. Co., 106 Mass., 56, and we can find no foundation for the position which the defendant takes in reference thereto.

As we understand, that decision is founded upon the fact that there was no employment for a year at any time,, neither for the first year nor the second, but upon the contrary the jury might find from the circumstances of the case that the first employment was a quarterly employment with a right to discharge at the end of any quarter, and that was all that was determined in regard to the second year’s employment

In the case at bar the evidence is explicit that the first employment was for a year, and that this employment was continued without any new or additional contract except such as was implied from the continuation of such yearly employment

The cases cited from Massachusetts in no way conflict with the law as it has been established by the courts of this state.

We have examined the exceptions which have been referred to-in the points of the appellant’s counsel and find none which require any serious consideration. We think upon the whole case that the judgment was right and that the judgment and order appealed from should be affirmed, with costs.

Bartlett and Barrett, JJ., concur.  