
    Edward Martin, Resp’t, v. New York Life Insurance Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 1, 1893.)
    
    1. Contract—Termination.
    A notice in writing to an employe that his contract will determine at a a certain date, and his assent thereto releases both parties from the obligation of an existing entire contract.
    3. Same—Reinstatement.
    A subsequent notice that the employe did not mean to release the employer from the payment of the salary for the remainder of the year, and an ofEer to perform after the agreed date of termination do not reinstate the original relation of the parties.
    Appeal from a judgment in favor of the plaintiff.
    Hornblower, Byrne & Taylor, for app’lt; Rudd, Hunt & Wilder, for resp’t.
   Barnard, P. J.

The cause of action of the plaintiff is based upon an averment that he was employed by the defendant for the period of one year from the 1st of January, 1892, and that the defendant, without legal excuse or cause, discharged him from the performance of the services. The defendant denies the contract for the year stated, and avers that the employment was terminated, by mutual consent, on the 30th of April, 1892, and that the services, up to that time, were fully paid and satisfied.

The proof shows that the plaintiff, in 1881, was employed to take charge of the real estate of the defendant “ at the rate of five thousand a year.” The employment commenced on July 1,1881, Before January, 1883, the plaintiff asked an increase of salary. This was agreed to, and a salary in excess of the rate of $5,000 a year was begun in February, 1888, and dated from January 1, 1883. This salary was $6,500. From the 1st of January, 1884, it was increased to the “rate of $10,000.” Such salary was continued, at that rate, up to the 30th of April, 1892, when the employment terminated. The salary was paid monthly. When the increase of salary was made up to $10,000 a year, the plaintiff asked for $15,000 from the 1st of January, 1884, and the reply was, we will give you $10,000 a year, without further mention of the time of the commencement of the term. There was no original hiring for a year; and the subsequent modification as to the rate of compensation, did not make a yearly contract from the date of the raising of the salary.

The case further shows that on the 13th of April, 1892, the defendant sent a letter to the plaintiff, in these words :

u April 13, 1892.

“ Edward Martin, Esq., Slfi Broadway, City.

“ Dear Sir : Acting in conjunction with the finance committee, in the determination to reduce the expenses of this company, I have to notify you that your services will not be needed after April 30th, inst.

“ Respectfully yours,

“ John A. McCall, President.”

On the next day, April 14, 1892, the plaintiff replied as follows:

“¡New York City, April 14, 1892.

“ John A. McCall, Esq., President New York Life Insurance Oo.

“ Dear Sir : Your favor of the 13th inst. received. 1 accept your ultimatum. I regret that you have shunned me, but, I presume, your motives were good. With my best wishes for the prosperity of the ¡New York Life, and that your management may be crowned with success, I remain, respectfully,

“Edward Martin.”

The effect of these letters was to release both parties from the obligation of an existing entire contract, if one aid exist. The plaintiff was bound to serve and the defendant to pay for the services. The agreements were mutual and the letters left each party free, after the 30th of April, 1892, from all performance under the contract. The subsequent letter that the plaintiff did not mean to release the defendant from the payment of the salary for the remainder of 1892, and the offer to perform after April, 30, 1892, did not reinstate the original conditions of the parties. Such a reinstatement must be established by a mutual agreement

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