
    Michael Crotty, Appellant, v. The Erie Railroad Company, Respondent.
    Second Department,
    February 23, 1912.
    Pleading — demurrer — master and servant — contract of employment construed — right of employee to hearing before discharge — pleading— complaint showing breach of contract of employment — conditions precedent to recovery— performance rendered impossible by act of defendant — practice —leave to plead over.
    In considering the sufficiency of a complaint the court may consider, not only express allegations, but facts implied' therefrom by reasonable and fair intendment.
    Where a contract of employment is not for a specified term it may be terminated at will by either party.
    Where a contract of employment provided in substance that the employee should not be discharged without a hearing and full investigation with an opportunity to present witnesses in his behalf, and, if found blameless after suspension, should receive full pay for time lost, it should be construed to mean that the employment should continue until dereliction of duty upon the part of the employee was established after a hearing.
    Hence, a breach of such contract of employment is shown by an allegation that the plaintiff was discharged without a hearing or full investigation and opportunity to present witnesses in his behalf.
    The employee in an action for a breach of such contract need not allege that he was found blameless in order to recover for time lost.
    
      It seems, that the agreement to pay for time lost contained in such contract must be limited to time lost during suspension, and not to time lost through discharge, for the hearing must precede the discharge.
    In any event the plaintiff was not required to allege that he had been found blameless as a condition precedent to recovery where the defendant by refusing a hearing made the performance of the condition impossible.
    The plaintiff in such action sufficiently shows performance of conditions upon his part by alleging that he entered the defendant's employ pursuant to the agreement a-nd continued his employment to a certain date. He is not required to negative any claim of dereliction of duty.
    Moreover, a failure to perform his duties is excused where the defendant would not permit him to do so.
    A defendant, having demurred to a complaint upon the ground that it fails to state facts constituting a cause of action, cannot withdraw the demurrer and answer as a matter of right. He will be required to apply to Special Term for leave to answer, and, it seems, must show a defense upon the merits.
    Appeal by the plaintiff, Michael Grotty, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 27th day of December, 1911, denying the plaintiff’s motion for judgment on the pleadings.
    
      John C. Robinson, for the appellant.
    
      John Bright, for the respondent.
   Burr, J.:

Defendant demurred to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. Plaintiff moved for judgment on the pleadings, and from an order denying such motion appeals.

The question presented is as to the sufficiency of the complaint construing its allegations liberally with a view to substantial justice between the parties, and considering not only the express allegations therein, but such facts as may be implied therefrom by reasonable and fair intendment. (Code Civ. Proc. § 519; Marie v. Garrison, 83 N. Y. 14.) The action is for damages for breach of a contract of employment. -The complaint alleges that prior to March 17, 1909, plaintiff and defendant entered into an agreement by which defendant hired and employed plaintiff, and plaintiff agreed to work for defendant as a yardman in the capacity of yard conductor at defendant’s railroad yards at an agreed compensation of three dollars per day. It further alleges that in pursuance of said agreement plaintiff entered the employ of defendant and continued in its employ to March 17, 1909, on which day he was discharged. If the contract of employment contained no terms or provisions other than those above specified defendant must succeed, for, where such contract is not for a specified term, it may be terminated at the will of either of the contracting parties. (Wood Mast. & Serv. [2d ed.] 159; Martin v. Insurance Co., 148 N. Y. 117; Williamson v. Taylor, 48 Eng. C. L. [5 Q. B.] 175.) But the complaint contains this further allegation: “That in and by the terms of said employment it was provided that plaintiff as such yardman would not be suspended (except suspension pending investigation), discharged or have record entered against him without a hearing and full investigation, which would be given promptly; that he might have present during such investigation any actual witnesses of the occurrence under investigation, except discharged employees, and when found blameless, would receive full pay for the time lost.” In effect, therefore, the contract provided that the term of plaintiff’s hiring should continue until he had been given a hearing and full investigation, with the right to call “witnesses of the occurrence under investigation.”' While the subject of the hearing and investigation is not .expressly stated, it must relate to some “occurrence.” As the only “occurrence” which could properly be the subject of an investigation respecting his continuance in service must be some alleged dereliction in duty, we think that the contract fairly implies that it shall continue until such dereliction is established. This view is confirmed by the provisions of the contract to the effect that if found “blameless” after suspension he shall receive full pay for the time lost. He can be found culpable or blameless only with reference to his own conduct. The complaint alleges that plaintiff was not given a hearing or full investigation, and that he was not afforded the opportunity to present any witnesses in his behalf. The contract was not, therefore, legally terminated by defendant. It is true that the decision of the master after such hearing as to the sufficiency of the charge may be final and conclusive in the absence of such bad faith as would constitute fraud, but, when the parties have thus agreed, the servant has a right to insist upon a full investigation, relying upon the fairness and justice of the master.

Respondent contends that in order to recover for time lost plaintiff should have alleged that he was found “blameless.” It will be observed that the clause requiring a hearing applies alike to suspension and discharge. It would seem that the agreement to pay for time lost must be limited to that clause of the contract relating to suspension and not to discharge. The hearing must precede the discharge, since there is no provision therefor after the contract has been terminated. It may follow the suspension. But if the provision that plaintiff should be found “blameless” before claiming compensation could by any possibility be applied to both discharge and suspension and was a condition precedent to his recovery, defendant has made the performance of this condition impossible by refusing plaintiff a hearing. Respondent also contends that it was necessary for plaintiff to plead performance on his part of all the conditions of the contract to be kept and performed by him. He does allege that “ in pursuance of said agreement ” he entered the employ of defendant and continued in its employ up to March IT, 1909. The words “in pursuance of said agreement” apply to both. If he entered “ in pursuance of said agreement ” and continued “inpursuance of said agreement” to act as yardman, he did all that the contract required him to do. He was not required to negative any claim of dereliction of duty. A complaint equally general has been held sufficient. (Williams v. Conners, 53 App. Div. 599.) After March IT, 1909, he could not perform all the conditions of his contract, because defendant would not permit him to do so. This is not an action for wages earned under a contract, but for damages for the breach thereof. These causes of action are distinct and independent. (Perry v. Dickerson, 85 N. Y. 345; Allen v. Glen Creamery Co., 101 App. Div. 306; Carlson v. Albert, 117 id. 836.) The order cannot he sustained.

Respondent asks that, if the order be reversed, permission be given to it to withdraw its demurrer and answer. We think that respondent should be remitted to the Special Term for such relief as it desires. Having demurred, it could not withdraw the demurrer and answer as matter of right. (Cashman v. Reynolds, 123 N. Y. 138; Smith v. Laird, 44 Hun, 530; Wise v. Gessner, 47 id. 306; Kaughran v. Kaughran, 73 App. Div. 150.) If it desires as matter of favor to.withdraw its demurrer and answer, it would seem reasonable that it should satisfy the court that it has a defense upon the merits. There is nothing before us upon which we can so determine.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Jenks, P. J., Thomas, Caer and Woodward, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  