
    James Clarence Wells, Appellant, v. Alvah W. Haff, Respondent.
    Second Department,
    January 22, 1915.
    Contract — contract of employment not terminated by death of either party — termination of contract by employer because of sickness of employee — right of employee to recover salary for remainder of term.
    Under a contract of employment for five years, providing that the death of either party to the contract should not terminate the contract previous to that time, the employee, who, after nearly two years and a half of service, was compelled to leave' his employer for about five months because of ill health, and when he tendered a resumption of his services the employer notified him that he canceled the contract and dismissed him from the service, is not entitled to recover his salary for the balance of the term, upon the theory that if he had died from instead of surviving, the sickness, his estate could have recovered.
    Appeal by the plaintiff, James Clarence Wells, from a judgment of the Supreme Court in favor of the defendant, entered' in the office of the clerk of the county of Nassau on the 8 th day of April, 1914, upon the dismissal of the complaint hy direction of the court at the close of plaintiff’s case.
    
      Rowland Miles, for the appellant.
    
      John L. Lockwood, for the respondent.
   Thomas, J.:

The plaintiff was employed by defendant for five years under a writing that the death of either party should not erminate the contract previous to that time. After nearly two years and a half of service, the plaintiff’s ill-health continuing for a year or more had brought him to such an anaemic and neurasthenic state as to require him, so his physician advised, to lead for a time a life in the open air, and with defendant’s dissent he went away on June 3, 1911, and remained until November first, when he tendered a resumption of his services under the contract, which was refused by defendant, who, on July fourteenth, had notified plaintiff that he canceled the contract and dismissed him from the service. Before leaving in June plaintiff expressed his willingness to return in two or three months if he “ felt better at the end of that time.” The plaintiff’s doctor advised him “to go back and try it and see how he could get along,” although, as the physician testified, “ I didn’t consider him in first class physical condition.” So the plaintiff would cast on the defendant the hazards and vicissitudes of his health, going away when he needed invigorating environment, returning after some months perchance to see how he “could get along,” may be soon declaring again the necessity of the outdoor life incident to his own affairs at the seaside. Such conduct is sought to be excused upon the theory that if he had died from, instead of surviving, the sickness, his estate could collect the salary for the unended term. That would be a misuse of a provision intended to avoid the rule that the death of either party to a contract for personal services terminates the contract. The plaintiff’s argument seems to be that, as prolonged sickness may precede death, the defendant by his contention could discharge the plaintiff for the absence caused by sickness although it resulted in death, and so escape payment to his estate. The error is that the result of the sickness determines the liability of the defendant. The parties did not agree that the salary should be paid if plaintiff became sick, whether he lived or died from it. It was an assurance that if he died, whereby his earning power would vanish, the compensation should inure to his estate. Not sickness disabling from service, but fatal sickness, was contemplated. In short, the provision was merely to avoid termination of the contract by death. By plaintiff’s contention, sickness disabling or threatening disablement from service excused the service with continuing salary, howsoever so.on after the date of the contract it began, whatever its duration or recurrence. That would put upon the defendant the risk, of plaintiff’s health as well as the possibility of his death. If the provision be read to mean precisely what it says, it becomes at once reasonable and clear. When an attempt is made to fit it to a state of facts not intended by the parties, the distortion suggests false and confusing notions of interpretation.

The judgment should be affirmed, with costs.

Jenks, P. J., Burr, Carr and Rich, JJ., concurred.

Judgment affirmed, with costs.  