
    Edward W. Osgood, Respondent, v. The Paragon Silk Co., Appellant.
    (Supreme Court, Appellate Term,
    January, 1897.)
    1. Master and servant — Employment as: salesman.
    'Plaintiff was émployed ás salesman by the secretary and general manager of the defendant corporation, who was also an employee of. a firm which was its exclusive sales agent, and which occupied the same office, Plaintiff, however, knew him only as defendant’s agent and Was furnished with cards hearing the names of the corporation and. the firm. He was paid by checks of the firm. In an action for wrongful discharge, held, that . plaintiff was justified in relying upon.the reasonably apparent fact that •the manager employed him on behalf of the defendant, and that the latter was liable. .
    2, Contract — Construction.
    Where a contract of' employment does not state the time of .payment, it will he construed in that respect in accordance with the method adopted by the parties.
    . Appeal from a judgment rendered by the justice of -the First Judicial District Court in favor of the plaintiff. -
    Joseph A- Arnold, for appellaiit.
    George .Bell, for respondent.
   "Bischoff^ J.

To the plaintiff’s action for one month’s salary, due him as salesman under a yearly contract of employment, the defendant interposed an answer denying the fact of employment, and the sole point at issue was whether the plaintiff had been engaged by the defendant or by the firm of Dreyfuss, Kohn & Co., whose place of business was shared, in part, by the defendant as its office in this city.

There is no question that the plaintiff was employed by one of these parties, either by the defendant or by Dreyfuss, Kohn & Co., nor is it disputed that he performed the required services and was entitled to the installment of salary in suit from either one or the other, but the appellant claims that there was a failure of proof to charge it with liability growing out of the contract of employment, and further, that the preponderance of the evidence was in favor of the defense that Dreyfuss, Kohn & Co. were the parties so contracting.

The plaintiff shows that he was engaged by one Rosenheim, the secretary of the defendant and, by concession of record, its general manager. According to the defendant’s evidence Rosenheim was also an employee of Dreyfuss, Kohn & Co., and his authority extended to the employment of salesmen on behalf of that film. Kohn, the defendant’s president, was a member of the film of Dreyfuss, Kohn & Co., and this firm controlled the sale • of the defendant’s entire output of goods, under a commission, as selling agents.

It is, therefore, to be observed that the business relations existing between the defendant corporation and this firm of Dreyfuss, Kohn & Co. were of a very close nature, and that when it became a question as to whether the firm was acting in a particular matter, relating to the sale of the corporation’s goods, either as principal or as agent for the corporation, the distinction to be drawn merely from observation would necessarily be of extreme nicety.

To the place of business so conducted the plaintiff came, with the intention of' seeking employment by the defendant, and had an interview with Rosenheim, whom at that time he knew only as the secretary of the defendant.

In the course of this interview Rosenheim made no allusion to" his connection with Dreyfuss, Kohn & Co., but did advert to his connection with the defendant corporation, and finally, after some negotiations, agreed with the plaintiff that the latter should be employed as salesman of the defendant’s goods at a stated annual compensation.

For his use upon the road cards were given the plaintiff by Rosenheim, which read Paragon Silk Company, manufacturer; Dreyfuss, Kohn & Co., selling agents,” and the plaintiff was told by Rosenheim that he might “ send orders to the selling agents, Dreyfuss, Kohn & Co.” Accordingly the plaintiff did send orders and his personal letters explaining the result of his efforts to Dreyfuss, Kohn & Co., in whose name, also, he sent advices to the parties placing such orders, and it is this fact, together with.the fact that the plaintiff’s salary was paid by the firm’s checks, upon which reliance is placed by the defendant in support of the contention that the employment was recognized to have been on behalf of the firm. In view of the apparent connection between the corporation and the firm, however, we find nothing in this method of payment strong enough to overcome the situation presented by the plaintiff’s evidence — his employment by the defendant’s agent, who was reasonably assumed, under the circumstances, to have been acting for no other than the defendant.

Rosenheim’s authority to bind the defendant to this contract of employment was conceded, and since the circumstances surrounding the making of the contract amply justified the plaintiff’s belief that this agent was acting for the defendant, the latter is certainly to be held rather than the plaintiff should suffer for the agent’s failure to define the capacity in which he was truly acting, when' held out by the defendant as its agent.

Not only did Rosenheim fail to enlighten the plaintiff, during the course of his duties; as to the facts now contended for, but there was an apparent concealment of the matter, ■ since. all communications to the plaintiff from his supposed employer or employers were signed by Rosenheim individually, and it certainly . would seem that if the plaintiff had actually been engaged by this agent in his capacity as an employee of Dreyfuss,. Kohn & Co., rather than as a managing officer of the defendant corporation, express information of the fact would at some time have been given, but Rosenheim himself, when called as a witness, did not dispute the plaintiff’s testimony that no such information had been given.

To recapitulate, the plaintiff was justified in his reliance upon the reasonably apparent fact that Rosenheim employed- him on behalf of the defendant, and if there was a mistake as to this, the defendant is chargeable with the result for the failure of its agent • to give notice of a fact particularly within his knowledge and not to be assumed by the plaintiff under the circumstances of the case.

Á point is made that this installment of salary was not legally due until the end of the year of employment, the agreement not having expressly provided for monthly payments, and that there should; therefore, have been no recovery, but the evidence shows that the plaintiff was discharged at the end of the month in question, without apparent causé, and his right to maintain an action was for this reason obvious. While the action was not framed as for the breach of the contract, no point such as is now taken was made upon the trial, and the recovery is supported by the evidence. Apart from this, however, the contract of employment, as practically construed by the parties to it,, appears to have been recognized as calling for monthly payments, since this was the method of payment uniformly adopted, and, in the absence of existing terms to the contrary, the justice was well authorized to give weight to the parties’ understanding and to construe the agreement accordingly. An examination of the exceptions taken by the appellant to rulings upon evidence discloses no prejudicial error, and the judgment, being quite clearly in accord with substantial justice, should he affirmed.

Judgment affirmed, with costs.

Daly, P. J., and MoAdam, J., concur.

Judgment affirmed, with costs.  