
    GREENBURG v. EARLY.
    
      N. Y. Court of Common Pleas ;
    
    
      General Term, June, 1893.
    1. Master and servant.), A contract with a firm to act as a traveling salesman for a definite period, whether the duties be those of an agent (without special interest) or a servant,— is terminated by the dissolution of the-firm caused by the death of a partner.
    2. The same.) A contract of employment for no definite period is terminable at the will of either party.
    Appeal from a judgment entered upon the dismissal of a complaint at a Trial Term of the N. Y. Court of Common Pleas.
    Joseph Greenburg brought the action against Mary A. Early and Joseph J. O’Donoghue individually and as executors of John Early, deceased, and Patrick Kavanagh, for a breach of contract of employment.
    The further facts are fully stated in the opinion.
    
      Walter M. Rosebault, for appellant.
    I. The plaintiff’s yearly contract of employment with the firm was not terminated by the death of a member (citing Ferena v. Sayres, 3 W. & B. 21 ; s. C., 40 Am. Dec. 496; Martin v Hunt, 1 Allen [Mass.], 418 ; Connell v. Owen, 4 C. P. [Canada], 113 ; Tasker v. Sheppard, 6 H. & N. 675).
    II. The continuation of the plaintiff’s employment, even if in law the previously existing contract had terminated, must be regarded as renewing that contract for the same period and on the same terms as existed before (citing Huntington v. Claflin, 38 N. Y. 182; Raub v. Albright, 36 Pa. St. 367).
    
      John Delahanty, for respondent.
    I. The death of the partner put an end to the contract of employment with firm (citing Wood’s Master and Servant, 2nd ed., § 160; Clark v. Gilbert, 26 N. Y. 279 ; Addison on Contracts, Abb. ed. 1883; p. 653; Farrow v. Wilson, L. R. 4 C. P. 744 Tasker v. Shepard, 6 H. & N. 575 ; S. C., 30 L. J. Ex. 207 ; Fisher v. Monroe, 16 Daly, 461 ; Spalding v. Rosa, 71 N. Y. 40; People v. Globe Mut. Ins. Co., 91 Id. 174 ; Martin v. Hunt, 1 Allen, 418).
   PRYOR, J.

On the 1st of January, 1891, the firm of John Early and Company hired the plaintiff as a traveling salesman for the period of one year. On the 23d of March next ensuing the copartnership was dissolved by the death of Early, and the defendant, as executrix of his will, took possession and control of the firm assets and business ; but whether for the purpose of winding-up or continuing the business is disputed upon the evidence, and is unimportant in the disposition of the appeal.

That a contract of service of the kind before the court is canceled by the death of the employer, is not now an open question in this State (Lacy v. Getman, 119 N. Y. 109).

The proposition that such a contract is terminated by the dissolution of a copartnership employer, seems not to have been adjudged in this State, and may not be affirmed on the authority of uniform decision. In this country it is supported by one express adjudication (Griggs v. Swift, 82 Ga. 392; 14 Am. St. R. 176); and disputed by another (Fereira v. Sayres, 5 Watts & S. 210; 40 Am. Dec. 49). The text-writers appear to accept it implicitly (Wood on Master and S., § 163 ; 2 Addison on Contr., Morgan’s ed. § 901 ; Lawson on Rights, etc., § 283). The preponderance, therefore, of authority is in favor of the proposition. How stands it on principle ?

If the plaintiff be regarded as an agent of the firm, on its dissolution the relation undoubtedly ceased ; because an agent is merely the representative of his principal, and if there be no principal there can be no agent. “ There is a manifest absurdity in doing an act in the name of a person no longer in being ” (Bank of N. Y. v. Vanderhost, 32 N. Y. 553, 535). The death of a partner operates an immediate dissolution of the copartnership (Parsons on Partnership, 397), and, therefore, the authority of a previously appointed clerk absolutely ends (McNaughton v. Moore, 1 Hayw. 189). The rule, of course, is inapplicable to an agency coupled with an interest; but the right of the plaintiff to a commission proportioned to sales does not constitute a power coupled with an interest within the exception to the general principle (Houghtaling v. Marvin, 7 Barb. 412).

Supposing the plaintiff to be a servant rather than an agent; still the conclusion is inevitable that'the dissolution of the partnership by death terminated his employment. The decision in Lacy v. Getman (119 N. Y. 109, 115, 116) proceeded upon the ground of a personal trust and confidence between the employer and the employee, and held that such trust and confidence on the part of the employee cannot be transferred by operation of law to a substituted employer. The reason of the rule is equally prevalent between a copartnership employer and its servant. In the case at bar, for instance, the plaintiff had engaged to serve John Early and Patrick Kavanagh'—not Patrick Kavanagh alone; still less Patrick Kavanagh and Mary A. Early, executrix of John Early. He might be willing to trust and obey John Early and Patrick Kavanagh; but not at all willing to trust and obey Kavanagh alone, or Kavanagh and Mary A. Early—just as the employee of a single person might be willing to engage service with him, but not with his executor.

Employed by the partnership and not by its individual members; engaged to serve the partnership and not its individual members; plaintiff’s relation to the partnership was dissolved necessarily by its dissolution.

As well, therefore, upon principle as authority, we conclude that the contract of the plaintiff with the firm of John Early and Company terminated on the dissolution of the copartnership by the death of Early.

The defendant is sued, however, as well in her personal as her representative capacity, and plaintiff’s alternative claim is upon a contract with her. Conceding his employment by the defendant, it was terminable at will, because for no definite period (Campbell v. Jimenes, decided the present term), and he was duly discharged upon payment for his services.

Booicstaver, P. J., and Bischoff, J., concurred.

Judgment affirmed, with costs.  