
    James E. Ehrlich, App’lt, v. Samuel Adams et al., Resp’ts.
    
      (New York Superior Court, General Term,
    
    
      Filed July 3, 1893.)
    
    Master and servant—Contract of employment.
    In an action for breach of a written contract of employment by the discharge of plaintiff, it was shown that defendants wrote to plaintiff making him an offer of employment. Plaintiff testified that he subsequently wrote a letter of acceptance, and gave it to a messenger boy with instructions to deliver it to one of the defendants, and that the boy returned with word that it was all right, which testimony was subsequently stricken out. Held, that the contract alleged was not proved, and that the complaint was properly dismissed.
    Appeal by plaintiff from judgment dismissing the complaint.
    This action is brought to recover the sum of $1,050 damages for breach of a written contract. The evidence shows that in the beginning of January, 1891, plaintiff was buyer for a Baltimore house, which position he had held for three years. About January 20, 1891, defendants wrote plaintiff a letter, in answer to a. telegram from him, wherein they named the departments in their business for which they wanted a buyer (Plaintiff’s Exhibit 1), upon receipt of which plaintiff called on defendants and had some conversation with them in regard to the position. On January 27, 1891, or thereabouts, the defendants wrote plaintiff a letter, offering him the position of buyer for the departments of their business mentioned in the letter of January 20, 1891, at a yearly salary of $1,800. Plaintiff’s Exhibit 2. On receipt of this second letter, plaintiff called on defendants, coming from Baltimore for the purpose, in regard to the latter part of their letter, Exhibit 2, which was not clear to him. It was explained to him, and he returned to Baltimore, closed up his affairs there, and, on Sunday, February 1, 1891, came to this city, arriving at the Coleman House at about 10:30 P. M. On the following day, February 2d, plaintiff wrote defendants a letter of acceptance from the Coleman House, wherein he informed them that he was in the city, wanted that day to get located, and would “ take hold ” the following morning. On the 3d of February, 1891, plaintiff entered into the employ'of the defendants, and continued in their employ until June 29, 1891, when they discharged him.
    Due notice to produce the letter of February 2,1891, was given to the defendants, and, on the non-production of the same after demand, the court allowed testimony to be given by the plaintiff, showing that he wrote that letter and delivered it to a messenger boy, with instructions to hand it to Mr. Flanigan, and that the boy came back and told plaintiff that it was all right. At a later stage of the trial the court decided to strike out this testimony, and, upon motion by defendants’ counsel, so ordered, to which ruling the plaintiff duly excepted.
    At the conclusion of plaintiff’s testimony the court dismissed the complaint, but not on the merits, to which exception was likewise taken on behalf of the plaintiff.
    
      Isaac L. Sink, for app’lt; John J. Adams, for resp’ts.
   Per Curiam

The action was to recover a certain sum as damages for the alleged breach of a contract of employment To recover the plaintiff was bound to establish the contract sued upon. The letter of January 27, 1891, written by the defendants to the plaintiff, was a mere offer which had to be accepted before it became binding. In fact this was stated therein in express terms. Nothing passed between the parties which can be construed as an oral acceptance, and no competent proof was given of the delivery to the defendants of the letter which, according to plaintiff’s contention, contained the only notice of acceptance which was given. The subsequent conduct of the parties is consistent with some other arrangement which may have been made. The plaintiff, therefore, failed to prove the cause of action alleged in the complaint.

The record discloses no error, and the judgment should be affirmed, with costs.

Freedman and Gtldersleeve, JJ., concur.  