
    Mary Marshall, as Administratrix, etc., of Willis C. Marshall, Deceased, Appellant, v. The Sackett & Wilhelms Company, Respondent.
    Second Department,
    February 19, 1915.
    Master and servant — contract of employment construed—when hiring not at will — erroneous nonsuit — construction of contract, when for court — defenses — interests of employee hostile to employer — pleading — bill of particulars — new matters of defense.
    A contract of employment which in terms provides that it may be terminated by either party “on thirty days’ notice after January 1st, 1913,” does not create a hiring at will which may be terminated without cause prior to the date specified. It can only be terminated without cause on due notice after the date specified.
    In any event a complaint to recover for the breach of such contract should not be dismissed merely because the plaintiff claims that the hiring is for a year if, in law and in fact, the hiring admitted by the defendant was for a definite period which overlapped the date of the plaintiff’s discharge. A defendant who seeks to justify the discharge of an employee under a contract for a definite term upon the ground that, having accepted employment with others, he has interests hostile to the defendant, must set out said facts as an affirmative defense. Evidence thereof should be excluded where proper objection is taken.
    Where a written agreement is not ambiguous, the interpretation is for the court. It is to be interpreted according to its reasonably plain terms, as j expressed, together with such reasonable implications as the express words may require.
    A contract is to be construed most strictly against the person who drew it. A bill of particulars cannot be used to enlarge a defense to the extent of matters not pleaded. Such matters should be brought in by an amendment of the answer.
    Appeal by the plaintiff, Mary Marshall, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 6th day of February, 1914, upon the dismissal of the complaint hy direction of the court at the close of plaintiff’s case.
    
      William B. Bayes [Bruce M. Falconer with him on ths brief], for the appellant.
    
      Charles Kaufmann [Joseph J. Corn and J. Lester Lewine with him on the brief], for the respondent.
   Carr, J.:

This action was brought originally by Willis C. Marshall to recover damages for a breach of contract of hiring between him, as servant or agent, and the defendant corporation, as master or principal. Judgment went against the plaintiff, dismissing his complaint at the close of his case. After this appeal the then plaintiff died and this appellant has been substituted as plaintiff in place of the decedent.

The contract of hiring was evidenced by a writing prepared by the defendant, which reads as follows:

February 2, 1912.
“Mr. W. 0. Marshall,
“1013 Grand Street,
“Brooklyn, N. Y.:
“Dear Sir.— Confirming our verbal arrangement, your business is to be kept a separate department, in every way, and you are to have a salary at the rate of $4,000.00 per year and 15% of the net profits of your department. This agreement may be terminated by you or by The Sackett & Wilhelms Company on thirty (30) days’ notice after January 1st, 1913.
“These profits to be computed annually.
“ Very truly yours,
“THE SACKETT & WILHELMS COMPANY,
“Julius Herman,
Treas.”

Marshall entered upon the employment under the terms of this contract, and so continued until July, 1912, when he was dismissed by the defendant.

Before this contract was made, Marshall had been in charge of the affairs of a corporation known as the “ Souvenir Post Card Company.” As the result of negotiations between the owners of the stock of that corporation and this defendant, in which Marshall was very active, the defendant bought the controlling interest in the capital stock of the Souvenir Post Card Company, and by a contract between itself and the vendor it took over the stock on hand of the “ Souvenir Post Card Co.” for the purpose of selling the same to its own customers, and to account for the proceeds of such sales to the vendor named in the contract last referred to. In this contract it obligated itself to give a preference in its sales as to the merchandise in question over any similar merchandise which it might offer for sale on its own account. Marshall, in his complaint, alleged the contract of hiring, above set forth, his performance of its conditions, and an unlawful discharge by the defendant in July, 1912. The defendant answered by denying generally all the allegations of the complaint except as to making the contract of hiring, and then set up two affirmative defenses, one that the plaintiff Marshall had been paid in full and another that the contract of hiring had been made by the defendant upon Marshall’s false representations, relied upon by the defendant, that he was fully competent to undertake the duties of the employment, and had sufficient skill and ability to perform the requisite services, while in fact he ‘ ‘ was wholly unable and incompetent to perform the said services, and did not have sufficient skill or ability properly to perform the same.”

At the trial Marshall was subjected to a long cross-examination. His case was rested at the close of his own testimony. The defendant thereupon made a motion to dismiss in language as follows: “If your Honor pleases, the defendant moves to dismiss the complaint upon the ground that the allegations of the complaint have not been proven with reference to any contract for a year; that, on the contrary, as it appears from the language of the paper marked in evidence as comprising the written contract it was an indefinite hiring at a certain rate per annum and, therefore, terminable at any time on the authority of Martin against The New York Life Insurance Company, 148 N. Y., page 121.” The court thereupon dismissed the complaint and the plaintiff excepted.

The complaint should not have been dismissed simply because the plaintiff had claimed a hiring for a year, if in law and fact the admitted hiring was for a definite period which overlapped the date of his dismissal by the defendant.

Neither party to this appeal claims that the written agreement involved is ambiguous. Its interpretation was, therefore, for the court. It was to be interpreted according to its reasonably plain terms, as expressed, together with such reasonable implications as the express words might require. As the writing was made by the defendant, it was not to be favored in the interpretation, but, on the contrary, the paper was to be construed strictly against it, under the familiar rule of contra proferentem. (Simon v. Etgen, 152 App. Div. 399; Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215.)

In the Martin case, the authority upon which the dismissal rested, it was held that a hiring for an indefinite term was a hiring at will and not a hiring for a year, and the mere fact that compensation was to be paid at a rate computed per annum did not convert the hiring from one at will.

In Watson v. Gugino (204 N. Y. 535) the same question came before the Court of Appeals, and the rule of the Martin case was applied. In that case, as in the Martin case, there was no stipulation or condition in the contract of hiring upon which any reasonable implication of a hiring for a definite period could rest, and as there was no latent ambiguity in the agreement of hiring, the courts would not look to the attending circumstances to import into the writing something that neither party had expressed. I think the case at bar presents quite different features. The writing does contain a stipulation and condition as to the termination of the hiring. It says: “This agreement may be terminated by you or by The Sackett & Wilhelms Company on thirty (30) days’ notice after January 1st, 1913.” The respondent argues that the intent and effect of this clause was that the hiring was to be at will up to January 1, 1913, and that after that date it was terminable only on thirty days’ notice. I think this is not the fair mean. ing of the clause. It prescribed expressly conditions for the mutual termination of the contract without cause advanced. These conditions could not be availed of until a definite time arrived, January 1, 1913. These conditions seem necessarily exclusive of an arbitrary right in either party to discontinue the hiring at any time between its inception and the time fixed in the contract itself, when a conditional termination, at the will of either party, was provided for.

The respondent argues further that if the dismissal of the complaint cannot be sustained on the ground specified in the motion, the judgment should be affirmed nevertheless on other grounds appearing in the record, but not specified in the motion, and cites Gerding v. Haskin (141 N. Y. 514) to that effect. That was a case in which a motion was made to dismiss a complaint generally, and without specification of the grounds, and the question before the Court of Appeals was whether such a motion was proper in form. It was held that while the grounds should be specified in the motion, yet the absence of specification would not inure to the benefit of the plaintiff if there were grounds for dismissal shown in the record which the plaintiff could not have met successfully if they had been specified in the motion. The respondent argues that in this case it had given evidence that at the time of the hiring the plaintiff had a contract with third parties, in which he had a personal interest which might prove hostile to that of his employer, and that he failed to reveal this fact to his employer. Such facts, however, would constitute an affirmative defense, and the defendant was obliged to plead them accordingly. (Linton v. U. F. Co., 124 N. Y. 533; Rosbach v. Sackett & Wilhelms Co., 134 App. Div. 130.) Whatever evidence to sustain them that got into the record was over an appropriate objection and exception of the plaintiff. This matter was not pleaded. In a bill of particulars filed as to the pleaded affirmative defenses there is some vague language probably relating to it. But a bill of particulars cannot be used to enlarge a defense set up in a pleading to the extent of matters not pleaded. (Beadleston & Woerz v. Furrer, 102 App. Div. 544, 547; St. Albans Beef Co. v. Aldridge, 112 id. 803.) If the defendant intended to rely upon these matters as a defense it should have sought an amendment of its answer to that extent.

The judgment should be reversed and a new trial granted, costs to abide the event.

Jbnks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  