
    Bryan W. Tichenor, Appellant, v. Samuel Bruckheimer, as Receiver of the Lawyers’ Stenographic and Printing Company, Respondent.
    (Supreme Court, Appellate Term,
    March, 1903.)
    Master and servant — Complaint for wages, alleging performance — Excuse for nonperformance. ■
    Where a person, hired in 1901, by a corporation, now insolvent, for five years at a yearly salary payable in equal weekly installments, sues for salary unpaid for twenty-three weeks and. pleads the contract in its effect and alleges that he has " duly performed all the conditions thereof on his part,” his. complaint should not be dismissed upon the theory that he has alleged, and has not proved, performance for five years, for the complaint must be deemed to allege performance only during the time for which he sued.
    Where the servant is to be, but is not,, paid weekly, his abandonment of the sendee does not estop him from recovering what he has earned.
    Appeal from a judgment of the City Court of the city of New York, dismissing the complaint, and. from an order denying a motion for a new trial.
    Bowers & Sands (Van Sinderen Lindsley, of counsel), for appellant.
    Blumenthal, Moss & Feiner (Benjamin F. Feiner, of counsel), for respondent,
   Giegerich, J.

The plaintiff was employed by the defendant receiver’s corporation, before its insolvency, on the 29th day of March, 1901, for a term of five years, beginning April 1, 1901, at a yearly salary of $1,700, to be paid in equal weekly instalments.

The action is brought for an unpaid balance under this contract for a period of twenty-three weeks, extending from April 1, 1901, to September 17, 1901, the total amount earned for that time being, as alleged, $751.87, of which $438.49 is admitted in the complaint to have been paid, and judgment is demanded for the balance of $313.38. After pleading the contract in its effect, the complaint alleges that the plaintiff duly performed all the conditions thereof on his part.” Upon the trial the plaintiff proved performance of his duties under the contract up to the 9th day of September, 1901. Upon cross-examination, he admitted that he left the employment on the latter date. On redirect, he was asked why he did so, but was not allowed to answer, objection being made that the inquiry was irrelevant, immaterial, and incompetent. The complaint was then dismissed for failure of proof, and a motion made on the minutes for a new trial was-denied.

The theory of the dismissal seems to be that as the contract was for a term of five years and the plaintiff averred performanceqf all the conditions on his part, he could not recover, under that state of the pleadings, without proof of performance for the entire-five years.,

In support of the decision the familiar rule is invoked that, under an allegation of performance, excuse for nonperformance-cannot be proved. Oakley v. Morton, 11 N. Y. 25; Schnaier v. Nathan, 31 App. Div. 225; La Chicotte v. Richmond R. & El Co., 15 id. 380.

In this case, however, there is an excuse for nonperformance pleaded, viz.: 'the failure of the employer to pay the installments as they fell due. In Wood on Master and Servant (§ 85), it is said: When by contract' of hiring the servant is to be paid monthly or quarterly or at any stated periods, when such periods arrive a right of action to the extent of the wages then earned attaches, and even though the servant abandons the service after the wages have so become due and payable to him for part performance, he can sue for and recover the amount. It is only in •cases where the contract is entire and performance is a condition precedent to the payment that no recovery can be had for partial performance. When the contract provides for payment of wages, weekly, monthly, or quarterly, a failure to pay according to the contract furnishes a good excuse on the part of the servant for putting an end to the service unless payment at the time is expressly waived by the servant, and a mere neglect to call for his pay for several months does not operate as a waiver.” So, too, in Tipton v. Feitner, 20 N. Y. 423, the court said, at page 429: “ But suppose a contract for a year, the employers agreeing to pay the servant ten dollars at the end of each month; and a part performance and subsequent breach by the servant, the employer being in arrear for several full months. In such a case, I conceive that the servant should be permitted to recover for the wages earned, subject to recoupment of the master’s damages for the time covered by the breach. I am ignorant of any principle upon which it could be held that he could not recover anything. It certainly cannot be upon the ground of the nonperformance of a condition precedent; for it is absurd to say, that under such a contract, serving the last month was a condition to the payment for the first.” See also Strack v. Hurd, 41 N. Y. St. Repr. 777; Penniman v. LaGrange, 23 Misc. Rep. 653.

To construe the allegation of performance in the present instance as meaning rendering of services up to the ,31st day of March, 1906, the date on which the contract term would expire, and to refuse any relief because such performance could not be shown, is a thing that obviously should not be done except as a last resort, and in the absence of any reasonable interpretation that can be given to the allegations.

In our opinion the complaint is plain and sufficient. The allegation of performance “ of all the conditions ” on plaintiff’s part means, of course, the performance of all the obligations placed upon him by the contract during the period sued for, or perhaps up to the time suit was commenced. The complaint is silent as to whether or not plaintiff continued to perform after the last day of the period sued for, and whether he did or not was immaterial, in view of the further allegations of nonpayment of overdue instalments by the employer. It was, then, for the latter to advance with excuses for the apparent breach on its part or counterclaim for any default on the plaintiff’s part.

Our conclusion is that the complaint, properly construed, avers only performance during the period sued for. But, as said, if it did appear on the face of the complaint, as it does not seem to, that there was nonperformance thereafter, an excuse for such nonperformance is also set forth. The judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Freedman, P. J., and Gildeesleeve, J., concur.

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