
    John Mahony, Respondent, v. Heman Clark and James W. Dwyer, Appellants, Impleaded with John O’Brien.
    
      Statute of Limitations — simple contract debt.
    
    Upon the trial of an action brought to recover for services rendered in superintending the excavation of a cut upon a railroad which was in process of construction by the defendants, between June 9 and November 1, 1888, the plaintiff’s testimony was to the effect that he was to be paid $100 a month and his expenses, and it appeared that on certain monthly pay days that he applied to the defendant for payment.. The action was commenced on August 20, 1894.
    
      Held, that the proper inference was that the salary was payable monthly on the regular pay days, and not at the end of the work; that the plaintiff was only entitled to recover such an amount of his salary as fell due within six years, immediately before August 20, 1894.
    Appeal by the defendants, Heman Clark and James W. Dwyer, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Queens on the 10th day of June, 1895, upon the verdict of a jury rendered after1 a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 12th day of July, 1895, denying the. defendants’ motion for a new trial made upon the minutes.
    
      William W. Niles, Jr., for the appellants.
    
      FramMin Pierce, for the respondent.
   Brown, P. J.:

The complaint in this action sets forth five separate causes of action, upon two of which the plaintiff recovered.

There was ample testimony to support the conclusion of the jury, and we find no reason to disturb the verdict on the facts. The Statute of Limitations was pleaded as a defense to all the causes of action alleged in the complaint.

The first cause of action was for services performed by the plaintiff for the defendants in superintending the excavation of a cut on a railroad in process of construction near Oyster Bay, in Queens county, between June 9 and November 1, 1888, which plaintiff claimed were rendered under a contract whereby defendants agreed to pay him therefor $100 per month.

This action was commenced on August 20, 1894, and at the close of the testimony the defendants moved to dismiss the complaint as to those items which were barred by the Statute of Limitations. The court thereupon dismissed two claims made by the plaintiff, one for the use of cars prior to August 20, 1888, and the other for money loaned to the defendants. To this ruling the defendants took an exception. The record does not show that the defendants’ counsel, at that time, called the court’s attention to the specific claim now made, that a recovery for services rendered prior to August 20, 1888, was barred by the Statute of Limitations, but at the close of the charge exception was taken to the instruction given to the jury, that if they were satisfied that there was an entire contract for the completion of tlie whole work, then plaintiff was entitled to recover his whole wages from the commencement of the employment, and counsel then stated to the court that upon that point his claim was that there was no evidence to go to the jury.

We are, therefore, of the opinion that the point now made by the appellants, that all claims for services rendered more than six years before the commencement of the action are barred by the Statute of Limitations, was raised at the trial, and is available on this appeal. We see no answer to the appellants’ proposition upon this branch of the case.

The disagreement between the parties to the action was whether the services were rendered under a contract of employment, whereby plaintiff was to be paid the sum of $100 a month, or whether they were rendered under a contract whereby plaintiff agreed to excavate the material for a specified price per cubic yard.

The jury adopted the plaintiff’s version of the contract, and his- is the only testimony in the case relating to the terms thereof. Upon the subject of payment the plaintiff testified that his salary was to be $100 per month and expenses; that July twentieth was pay day for the month of June; that on that day he called upon defendant Dwyer for his pay, and Dwyer told him he was short of funds, and asked him for a loan of $200, which he then made to him ; that on the next pay day, in August, he called on Dwyer again for his pay, and that again he was told by Dwyer that he was short of funds, and that he must wait until the next month ; that on the September pay day he called again at defendants’ office for his pay; that Dwyer was absent; that he saw his bookkeeper, who gave him a statement of the work, and after that he did not see Dwyer until the work was completed.

George W. Andrews, who was the defendants’ bookkeeper, was called as a witness for the plaintiff. He corroborated the plaintiff as to the conversation with Dwyer on the July pay day, and testified to a subsequent conversation with Dwyer when the latter said he would settle with the plaintiff at the end of the work. There is no testimony, however, that plaintiff was present when Dwyer made that statement to Andrews, or that he was ever informed of it or acquiesced in it.

There can be but one inference from plaintiff’s testimony, and that is that his salary was payable monthly on the regular pay days, and having so testified at the trial, and the jury having adopted his version of the contract made with the defendant, he cannot be permitted now to claim that the terms of payment were otherwise, and that his salary was not due or payable until the end of the work. His action in attending at the defendants’ office on the regular monthly pay days and demanding his monthly salary is absolutely inconsistent with the theory that the salary was not due until the work was completed.

The verdict for the whole salary cannot, therefore, stand. The plaintiff is entitled to recover only such amount as fell due within six years prior to the commencement of the action. Inasmuch, however, as he testified that the regular pay day for the July work was on August twenty-second, and the action was commenced on August 20, 1894, the effect of the application of the Statute of Limitations to the claim is to bar a recovery for the June work only, which amounts to seventy-five dollars.

We have examined the other exceptions in the case, but none of them require notice.

The j ndgment must be reversed and a new trial granted, with costs to abide the event, unless the plaintiff stipulates within twenty days to deduct from the verdict the sum of seventy-five dollars, and interest thereon from ¡November 1, 1888, and five per cent allowance thereon. If such stipulation is filed the judgment so modified is affirmed, without costs of appeal.

All concurred, except Cullen, J., not sitting.

Judgment and order reversed and new trial granted, costs to abide the event, unless plaintiff stipulates within twenty days to deduct from the verdict the sum of seventy-five dollars, and interest thereon from ¡November 1, 1888, and five per cent allowance thereon. If such stipulation is filed the judgment so modified is affirmed, without costs of appeal.  