
    Louis Bozzone, Respondent, v. Jennie K. Stafford, Appellant.
    (Supreme Court, Appellate Term, First Department,
    April, 1914.)
    Contracts — breach of — provision in, that plaintiff may terminate by written notice — provision as to automatically renewing from month to month — when not entitled to recover stipulated wage.
    A written contract by which defendant agreed to hire plaintiff from a certain date, from month to month at a monthly wage, and which provides that plaintiff may terminate the contract by a written notice, binds him though he does not expressly engage himself to the service.
    Where by other provisions thereof the contract is autoT matically renewed from month to month, it is not an indefinite employment at a certain rate of wage per month but an employment for a full month, and though the plaintiff in ease of defendant’s breach of the contract may sue either upon it, or for quantum meruit or both, he cannot recover on either theory unless he has performed the agreement on his part.
    Where for the first month the plaintiff performed the agreement on his part but broke it during and before the expiration of the next month, he is not entitled to recover the stipulated wage for that month.
    Appeal by defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, first district, in favor of plaintiff, after a trial by a court without a jury, on an agreed statement of facts.
    Campbell & Boland, for appellant.
    Jacob Panken, for respondent.
   Bijur, J.

This action was brought by plaintiff for work, labor and services performed by him for a period of fourteen days ending December 30, 1912, as cook in defendant’s hotel. By the written agreement of employment the hotel agrees to hire the employee beginning November 26th, 1912, from month to month at the monthly wage of $60. ’ ’ On December 30, 1912, plaintiff left of his own accord in connection with a strike which then took place.

The validity of the agreement is not attacked on the score of lack of mutuality, nor can it well be. It is signed by both parties, and, although the employee does not expressly engage himself to the service, the provision that he may terminate the agreement by a certain notice in writing indicates plainly his intention to so bind himself. Consequently by the terms of the contract, plaintiff is hired and agrees to serve a full month — which by other terms of the agreement is automatically renewed from month to month. It is not an indefinite employment at a certain rate per month. Watson v. Gugino, 204 N. Y. 535, 541 ; Martin v. New York Life Ins. Co., 148 id. 117. Under these circumstances, although his action may be brought either on an express contract or for quantum meruit, or both (Rubin v. Cohen, 129 App. Div. 395 ; Byrne v. John Gilles Co., 144 id. 677), he cannot recover on either theory unless hé has performed his agreement. Lawson v. Hogan, 93 N. Y. 39, 44 ; Robinson v. Chinese Char. & Ben. Association, 47 App. Div. 69 ; Exeter Machine Works v. Wonham-Mayor Eng. Works, 134 id. 386, 387.

It is not a case where plaintiff, although agreeing to work for a definite period, was entitled by the agreement to receive partial- periodical payments of his wages during such period. See Walsh v. New York & Kentucky Co., 88 App. Div. 477 ; Mernagh v. Nichols, 132 id. 509. Consequently plaintiff, having performed his agreement for the month November twenty-sixth to December twenty-sixth, was entitled to be paid the balance of the sixty dollars for that month, and, having broken his agreement to serve for the month of Décember twenty-sixth to January twenty-sixth by leaving the employment on December thirtieth without just cause or the consent of his employer, can recover no part of his compensation for that month either on the theory of contract or quantum meruit.

Judgment modified by deducting therefrom the portion of the wages from December twenty-sixth to December thirtieth, namely eight dollars, and, as so modified, affirmed, with fifteen dollars costs to the respondent.

Seabury and Lehman, JJ., concur.

Judgment modified, and, as so modified, affirmed, with fifteen dollars costs to respondent.  