
    Joseph Messerrio, Respondent, v. The Atchison, Topeka & Santa Fe Railway Company, Appellant.
    (Supreme Court, Appellate Term,
    April, 1906.)
    Master and servant — The relation — Duration of employment and termination of relation.
    Where a written contract, under which plaintiff entered defendant’s employ, upon the condition expressed therein that he was a competent boiler maker, specified no time when the employment was to begin or terminate, and the result of an examination by defendant’s master mechanic showed that plaintiff was not qualified to perform the duties of a competent boiler maker, his acceptance of another position under defendant’s employment terminates the first contract and precludes a recovery thereon.
    Appeal by the defendant from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of Few York, Second District, borough of Manhattan.
    . Crocker & Wickes (Forsyth Wickes, of counsel), for appellant.
    Raymond Cotte, for respondent.
   Tbhax, J.

The defendant advertised in this city for men to fill the places of its striking workmen in Arizona and California. The plaintiff applied for the position of boilermaker. He signed a contract which recited that it was made upon the express understanding and condition that the answers and statements therein contained were true, and that “ he was a competent boiler-maker,” and that “ this agreement is made upon the condition of the truth of said representations.” His compensation was to be not less than thirty-four nor more than thirty-eight cents per hour. Ho time was mentioned when such employment was to begin or terminate. The plaintiff was conveyed to California by the defendant and, upon his arrival there, was subjected to an examination by the defendant’s master mechanic; and it is clear from the testimony in the case that the plaintiff was deficient in the qualifications necessary to fill the position of a competent boilermaker. He was informed of the result of such examination and was told that, if he so desired, he would be assigned to work as a machinist’s helper at wages of twenty-one cents per hour. He thereupon entered upon the duties of that position and remained in the defendant’s employ from May, 1901, until August of that year, when he voluntarily left the service of the defendant. He was paid in full, at the rate of twenty-one cents per hour, and for every hour of over-time was paid at the rate of “ time and a half;” and he accepted such payment, seemingly without protest or claim for further remuneration. The time plaintiff worked and the amount paid him are not disputed. Upon the trial the plaintiff offered the written contract in evidence. Over the objections of the defendant the plaintiff was allowed to offer oral testimony of conversations had prior to the making of the written agreement, which tended to vary it in several important particulars; but the testimony thus given does not seem to have entered into the computation by which the court below arrived at the judgment given in favor of the plaintiff, as such judgment only represented the difference between the sum actually paid the plaintiff and the lowest rate he would have received under the written contract. We think, however, the plaintiff is not entitled to recover in any event upon the facts disclosed. The contract was clearly terminable at the will of either party. Martin v. New York Life Ins. Co., 148 N. Y. 117; Outerbridge v. Campbell, 87 App. Div. 597; Byrne v. Weir, 38 Misc. Rep. 741. When the defendant, by the examination which it had a right to make, ascertained that the plaintiff was incompetent to perform the duties of the position for which he had made application, another position was offered by the defendant and accepted by the plaintiff. The original contract was thus, not only by the understanding but by the acts of the parties, terminated and a new one entered into, the terms of which were adopted and the benefits received by the plaintiff. He cannot now resort to the previous written contract for the purpose of enforcing a cause of action against this defendant.

The judgment must therefore be reversed and a new trial ordered with costs to the appellant to abide the event.

Scott and Bisohoef, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  