
    (50 Misc. Rep. 181)
    SUMMERS v. PHENIX INS. CO.
    (Supreme Court, Appellate Term.
    March 26, 1906.)
    1. Teial — Instructions—Applicability to Pleading.
    In an action for wrongful discharge under an allegation of “employment for one year from May 29, 1904, at a salary of $i,200,” a request to charge that, if plaintiff entered defendant’s employ on IMay 29, 1898, under a distinct agreement that the hiring was for one year, there was a presumption, in the absence of evidence to the contrary, that the plaintiff and defendant agreed to a continuation for another year, was properly refused.
    2. Master and Servant — Term oe Employment — Evidence.
    In an action for wrongful discharge under a contract of employment at a certain salary, evidence that plaintiff’s salary was increased from time to time, usually on the first of January of each year, and that the last increase began on January 1, .1902, plaintiff’s receipts of his monthly salary, signed by him in defendant’s book, with knowledge that the same contained an entry to the effect that plaintiff’s compensation was to be “at the rate” of $1,200 per annum, by order of the executive committee, constituted an acknowledgment of what constituted the contract from that date, and precluded any implication of a renewal of contract under which plaintiff entered defendant’s employ on May 29, 1893, for a term of one year, arising from the fact that after the expiration of a year plaintiff continued in defendant’s employ.
    3. Same — Hiring at Will — What Constitutes.
    A hiring at so much a year, no time being specified, is a hiring at will.
    [Ed. Note. — Eor cases in point, see vol. 34, Cent. Dig. Master and Servant, § 9.]
    4. Same — Termination—Rights oe Parties.
    A hiring at will may be terminated at any time by either party.
    [Ed. Note. — Eor cases in point, see vol. 34, Cent. Dig. Master and Servant, § 19.]
    Appeal from City Court of New York, Trial Term.
    Action by William E. Summers against the Phenix Insurance Company. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Argued before SCOTT, P. J., and O’GORMAN and NEWBUR-GER, JJ.
    Job E. Hedges, for appellant.
    Fred E. Ingraham, for respondent.
   O’GORMAN, J.

Action for wrongful discharge under an allegation of “employment for one year from May 29, 1904, at a salary of $1,200.” Concededly, there was no express agreement of employment on this date. Plaintiff’s theory is that, as he entered the defendant’s employ on May 29, 1893, under a distinct agreement that the hiring was for one year, there was a presumption, in the absence of evidence to the contrary, “that the plaintiff and defendant agreed to a continuation for another year,” and the ruling complained of by the plaintiff was the court’s refusal to so instruct the jury. This rule of law has no application to the facts in this case. The request called’for a finding, not as to the alleged implied contract sued upon (that of May 29, 1904) for the succeeding year, but to an alleged contract for one year from May 29, 1894. Moreover, there was “evidence to the contrary.” His salary was increased from time to time, not on May 29th of any year, but usually 'on the 1st of January, which is quite inconsistent with the plaintiff’s contention that on the 29th of May of each year there arose a new agreement for another year upon the same terms. His last increase, which was to $1,200, began on January 1, 1902, and thereafter plaintiff’s receipts of his monthly salary were signed by him in a book in the defendant’s office, which, as plaintiff knew, contained an entry to the effect that plaintiff’s compensation was to be “at the rate’’ of $1,200 per annum, by order of the executive committee. This acknowledgment of what constituted the contract of the parties from January 1, 1902, supersedes the previous arrangement, and makes the request of the plaintiff as to the implication of a renewal of the original employment wholly immaterial. A hiring at so much a year, no time being specified, is an indefinite hiring, and such a hiring is a hiring at will, and may be terminated at any time by either party. Martin v. N. Y. Life Ins. Co., 148 N. Y. 117, 42 N. E. 416.

Judgment affirmed, with costs.

All concur.  