
    Ella M. Bennett, Appellant, v. Jacob Mahler and Others, Composing the Firm of Mahler Brothers, Respondents.
    
      Contract of employment for a year — action to recover damages for a breach thereof —proof proper to establish the contract in the absence of a plea of the Statute of frauds'—duty to plead, the Statute of Wra/ads — what contract is not within the statute — a contract of employment continued by the continuance of the employ ment — amendment of a complaint induced by an erroneous ruling.
    
    The complaint, in an action brought to recover damages for the alleged wrongful discharge of the plaintiff from the employ of the defendants, alleged, that, on ór about the 1st day of January, 1902, the parties entered into an agreement whereby the plaintiff agreed to work for the defendants during the calendar year 1902.
    Upon the trial the plaintiff testified that she was first employed by the defendants in September, 1896; that upon the first day of January following her employment was continued upon the same terms for the ensuing calendar year, and that she continued thereafter to work from year to year under a renewal of the contract until about the middle of December, 1901; that at that time one of the defendants discharged her, but informed her that she could stay until January first; that she continued to work as before until December 30, 1901, when one of the defendants directed her to go to a given place and obtain some goods; that the plaintiff said, “ Mr. Mahler, I am leaving here the 1st of January,” and that Mahler replied, “That is off. You can go down town and get these goods and come back and take a few days vacation and then come back the next week for the ensuing year.”
    The plaintiff continued in the employ of the defendants until the second of Jan- . uary when another member of the firm said that he expected that she was going to leave, to which she replied that she “was going to stay,” and he said, “ that is all right I am glad you are staying.” On June 14, 1902, she was discharged.
    After, this testimony had been given without objection, the defendants moved to strike out the testimony as to the employment in December, 1901, upon the ground that it did not conform to the allegations of the complaint; that it tended to establish a contract void under the Statute of Frauds and that the form of the complaint was such that the defendants were not called upon to plead the Statute of Frauds as a defense. The court upheld the defendants’ contention and struck out the testimony in question.
    
      Held, that the ruling'was erroneous: '
    That, in the absence of a plea of the Statute of Frauds, the plaintiff might prove, under the allegation of the complaint that the contract was entered into on or about the 1st day of January, 1902, that the contract was made December 30, 1901, for her employment during the ensuing year;
    That if the defendants desired to interpose the defense of the Statute of Frauds, it was their duty to plead it;
    That not having done so, the plaintiff could recover upon the contract, even though it fell within the Statute of Frauds;
    That the contract as proved did not, however, fall within the Statute of Frauds, for the reason that the only contract which the plaintiff could enforce was the contract created by operation of law, resulting from the continuance of the employment under the yearly renewals;
    That such contract, was entered into on the first day of January, and hence was not within the statute;
    That the conversation had on December 30, 1901, did not constitute a new contract, but simply served to indicate the defendants’ desire that the relations theretofore existing between the plaintiff and the defendants should continue;
    That the-fact- that-, after - the erroneous ruling of the trial court, and because thereof, the plaintiff was placed in a position in which she was obliged to amend her complaint by alleging that the contract was made on the 30th day of December, 1901, did not impair the plaintiff’s rights, and that she should be allowed to again amend her complaint by restoring the original cause of action;
    Appeal by the plaintiff, Ella M. Bennett, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of April, 1903, upon the dismissal of the complaint bv direction of the court after a trial at the New York Trial Term, and also from an order made on the 27th day of March, 1903, denying the plaintiff’s motion for a hew trial made upon the minutes.
    
      Isaac Franklin Russell, for the appellant.
    
      John Frankenheimer, for the respondents.
   Hatch, J.:

This action is brought to recover damages foiva claimed unwarranted discharge of the plaintiff from, her employment by the defendants. It. was averred in the complaint that, the defendants are copartners, engaged in the dry goods business in the city of New York; that on or about the 1st day of January, 1902, at the defendants’ place of. business, the parties entered into an agreement wherein the plaintiff agreed to work for the defendants for. and during the' calendar year 1902, and in consideration of such services defendants agreed to pay therefor the sum of sixteen dollars per week and a certain percentage upon sales; that the plaintiff entered upon her employment under the agreement and continued in performance of the terms thereof upon her part until on or about the 14th day of June, 1902, when the defendants wrongfully- discharged the plaintiff in violation of the terms of the agreement, and have since refused to allow her to perform her contract, which she was then and since has been ready, and willing to perform. In answer to the complaint the defendants deny the contract averred therein, or that the plaintiff entered into any employment thereunder, or that she was wrongfully discharged, and- further answering aver that while she was in the employ of the defendants she was discharged from such employ on June 14, 1902, for good and sufficient reasons stated therein. These were the- issues framed when the parties came- to trial. Plaintiff: was called ás a witness,-and testified that she was first employed by the defendants about the middle of September, 1896; that upon the first day of January following her employment, was continued, upon the same terms, for the ensuing calendar year, and that she continued thereafter to work ■ from year to year under a renewal of the contract until about the middle of December, 1901, on which date differences arose between plaintiff and Jacob Mahler, one of the defendants, as. a result of which he discharged her. The plaintiff refused to. leave at that 'time and was then informed that ishe could stay until .the first day of January., Thereafter she continued to work as before until the thirtieth day of December, when Jacob Mahler directed her to go a given place and obtain spme goods. The following conversation then ensued; plaintiff- said, “ Mr. Mahler, I am leaving here the 1st of January.’’ Mr. Mahler replied,. “.That is off. You can go down town- and get these goods and come back and take a few days vacation and then come back the- next week for the ensuing year.”

The plaintiff continued in the employ and nothing further transpired until the second week in January, when S. Mahler, another member of the firm, told her that he expected ■ she was going to leave, and plaintiff said she “ was going to stay,” and he said, “That is all right. I am glad you are staying.” After some further testimony had been given by the plaintiff, not germane to 'the present question, counsel for the defendants moved to strike out the testimony given by the plaintiff as to the employment in December, 1901, as being at variance with the complaint, claiming that the evidence tended to establish a contract void by the Statute of Frauds; that the defendants had been misled by the averment of the cone plaint, which alleged a cause of action not within the Statute of Frauds, and, therefore, the defendants were not called upon to plead the same. No objection had been interposed to the testimony which had been given by the plaintiff, and the first time any question was raised concerning it was when the motion to strike out was made. Then ensued between court and counsel a colloquy respecting the / interposition of the plea, in which counsel for the plaintiff stated that he was surprised at the defense of the Statute of Frauds. While the court intimated that it would permit an amendment of the answer, averring as a defense to the contract sued upon the Statute of Frauds, yet no amendment was made at that time and plaintiff was permitted to continue the examination of the plaintiff in the then state of the pleadings. The evidence as developed from-the subsequent examination was, in substance, as has been already given, and again ensued a discussion between the court and counsel as to the character of the pleadings and the effect of the testimony as establishing a contract which in fact fell within the Statute of Frauds. At the conclusion of the discussion the court granted the motion to strike out the testimony of 'the plaintiff in regard to the alleged contract of hiring, made on the 30th day of December, 1901, / for the calendar year 1902, upon the ground that, it did not conform to the- allegations of the complaint. To this ruling plaintiff excepted.

The ruling was erroneous and the exception taken thereto must be sustained. The complaint itself was perfectly good as a pleading, as it averred that a contract was entered into on or about the 1st day of January, 1902, for services to be.rendered during the ensuing calendar year. Under this pleading the plaintiff might prove and recover thereon for a contract entered into on the 30th day of December, 1901, for employment during the ensuing year and recover thereon in the absence of-a plea of the Statute .of Frauds as a defense thereto. In Fanger v. Caspary (87 App. Div. 417) this court said: Where the complaint avers.a contract which may fall within the Statute of Frauds and the contract as proven does come within its terms, an objection to the proof is not available to defeat a recovery thereon-in the absence of an affirmative plea ” of the Statute of Frauds, and cited in support of such ruling Honsinger v. Mulford (90 Hun, 589 ; affd. on appeal, 157 N. Y. 674). These cases directly support such ruling and are precisely applicable to the case at bar. The complaint in the present case gave the defendants notice that the contract relied upon was made on or about the 1st day of January, 1902. Proof of the conversation was on the 30th day of December, 1901, and this time was within the averments of the complaint. Of such facts the defendants were bound to take1 notice, and if they desired to raise the Statute of Frauds as a defense to the contract, thus averred, they were required to plead it; consequently not pleading it, they were bound by such contract even though it fell within the statute. . It-follows, as a necessary result that when the defendants made their application for leave to amend their pleading upon the ground that the contract proved was a variance from that which was averred, no basis existed therefor, and as it injected a new and distinct issue into the trial, it was not proper to allow it, and the plaintiff’s claim of surprise was a sufficient answer thereto.

In addition to this it is clear that the contract, as proved, did not by its terms fall within the statute and it was, therefore,-error for the court to strike -out the testimony. The evidence disclosed that the first contract of employment was made in September, 1896; that a new contract for a year’s service was made on the 1st day of Jántiafy’"foliowhig an’d' that "such contract was" thereafter "continued by the continuance of service down to the 1st day of .January, 1902. The continuance of service operated in law as a new hiring for the period of a year, as the contract proved in its inception was a contract for a year’s service and the continuance of service was a renewal of such contract for the same period of time. ( Douglas v. M. Ins. Co., 118 N. Y. 484; Martin v. N. Y. Life Ins. Co., 148 id. 117.) The subsequent conversation had with one of the members of the firm with, respect to her rendering services for another year was not the making of a new contract. Nothing whatever was then said as to the terms of her employment; what compensation she was to receive, or how it was to be paid; nor did the plaintiff from anything which appears assent to new arrangements made at that time. Her statement was that in view of the difference which had existed her term of service would end on the first day of January, and defendants’ declaration in reply was that is off ” and that she could take a vacation of a few days and then come back. The effect of this transaction was to indicate upon the part of the defendants a desiré that their present and future relations should not be interrupted, but there was no discussion of any terms of employment and no contract was then made. The terms of the employment were as if nothing had been said and the plaintiff had continued in her employment. The only contract which the plaintiff can enforce is the contract created by operation of law, resulting from the continuance of the employment. That did not commence until the former ended, and the old one ceased and the new began on the first day of January of the ensuing year; consequently the contract as proved upon the trial did not fall within the terms of the statute, and if the jury believed the testimony which had been given of the contract and that the defendants were guilty of a wrongful breach of it, plaintiff was entitled to recover, whether the Statute of Frauds was pleaded or not, so that in no view of the case can this ruling of the court be supported.

Nor can the defendants avoid this result by the amendment of the eoniplaint setting out the contract as made on the thirtieth day of December. The plaintiff had given evidence which, if believed by the jury, established a perfect cause of action. The court by its ruling, to which an exception was duly taken, drove the plaintiff to take other steps to extricate herself from the difficulty which the court and defendants had created for her. Counsel did that which he was best advised to do at the time, even though it was the worst thing for his client that he could do, and thereupon a condition was created which required' the court, as matter of law, to dismiss the complaint; but this arose out of the fundamental error which had been previously committed, and the tinal disposition which was made of the case amounts for all practical purposes to a mistrial.

It follows from these views that the judgment and order should be reversed and a new trial granted, with costs .to the appellant to abide the event, and with leave to plaintiff to apply to the court for the amendment of her pleading byrestoring the original civuse of action as averred in the complaint before amendment.

O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Judgment and order reversed and new trial granted, with costs to appellant to abide event, with leave to the plaintiff to apply to the court for amendment of her pleading by restoring the original causé of action as averred in complaint before amendment.  