
    Cox v. Albany Brewing Co.
    
      (,Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Statute of Frauds—Contracts not to be Performed within a Year.
    A verbal contract to work one year, beginning with the day on which the contract is made, is not within the statute oí frauds. S. Principal and Agent—Proof of Agency.
    Where a firm permits one to represent it by hiring, paying, and discharging an employé, the person so employed has a right to regard the man with whom he transacts his business as the agent of the firm.
    Appeal from circuit court, Albany county.
    Action by Luke Cox against the Albany Brewing Company, to recover damages for breach of a contract of employment, alleged by the plaintiff to have been made by and between him and the defendant for the plaintiff’s personal services for one year, at two dollars per day. The plaintiff served ten weeks and one day, and then was discharged; being paid in full for the time of his actual service. On Saturday, May 7, 1888, the plaintiff received a postal-card, signed by the defendant’s stamp, stating: “If you come to the brewery, we have a position for you. ” He went to the brewery, and into the office of the defendant, and found William Grey there behind the counter alone, and apparently in charge. Grey asked him to come to work on Monday following. Bo we, the defendant’s superintendent, came in, and also asked him to come. The plaintiff said he would. He went there Monday morning, and Grey asked him to»go to the malt-house, and work there a week, and help the maltster show the green hands how to work the malt. It appears that there was a strike among the defendant’s regular workmen. The plaintiff at first refused to work in the malt-house, saying that he had been there before, and the work did not agree with him. He then left the office. Grey followed him out, and said: “Cox, if you will come down to the malt-house for two or three days, and help Farrell show the green hands how to do the work, I will guaranty you a year’s work, at two dollars a day.” Grey repeated the statement. The plaintiff then said: “I will work until Saturday night, and come back Monday.” He thereupon went to the malt-house, and worked there until Saturday night. Came back on Monday morning following, when Mr. Grey directed him to go to the shipping room, which he did, and worked there, under the direction of defendant’s superintendent, for nine weeks and one day. Mr. Grey then told the plaintiff that the Knights of Labor objected to him, and he was obliged to lay him off, and directed him to go to the office and get his pay, and he did so. He went there on the following morning to apply for work, and said to Mr. Grey: “How is it that you hired me for a year?” and Mr. Grey told him to get out of the office, and not come any more; and added: “I suppose you mean to take suit against me.”
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Chase & Delehanty, for appellant. Dewitt <6 Spoor, for respondent.
    
      
       On the operation of the statute of frauds with reference to contracts not to be performed within a year, see Sarles v. Sharlow, (Dak.) 37 N. W. Rep. 749, and note; Railroad Co. v. Scott, (Tex.) 10 S. W. Rep. 99, ana note; Billington v. Cahill, 4 N. Y. Supp.
    
   Landon, J.

The plaintiff was non-suited. He is therefore entitled to the most favorable inferences of which the testimony admits. He dealt with the person whom the defendant permitted to be its representative in its dealings with the plaintiff, from and including the time of his employment, during the ten weeks and one day of his service, and until and including his payment and discharge. As between the parties, Grey was the ostensible agent of defendant, and clothed with all the power he assumed to exercise. Besides, there is no intimation in the evidence that his real power was not as ample as his ostensible. The jury might have found that the defendant did employ the plaintiff for one year, at two dollars per day. $To question arises under the statute of frauds, for the plaintiff went to work upon the morning of his contract, and the year of his service would expire on the evening before the full year would expire. The judgment is reversed; a new trial is granted, costs to abide the event. All concur.  