
    Simon M. Merrill Appellant, v. The Wakefield Rattan Company, Respondent.
    
      Master and servant—the contract of service canceled by a voluntary resignation by an officer of a corporation — dismissal of a complaint, sustained on appeal upon a new ground.
    
    Where a corporation requests one of its officers to resign from its employment, and he resigns unconditionally and turns over to his successor the keys, books and papers in his possession, the contract of employment is canceled by mutual consent, and the officer cannot recover for salary accrued after such resignation.
    Upon an appeal from a judgment dismissing a complaint, it is not necessary for a respondent to show that the grounds upon which such dismissal proceeded in the court below were tenable. If for any reason the plaintiff had no legal claim against the defendant, the dismissal was proper.
    Appeal by the plaintiff, Simon M. Merrill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of May, 1895, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jnr.y-
    Plaintiff is a resident of New York city, and defendant is a Massachusetts corporation, having its principal office in Boston. Prior to January 1,1892, plaintiff had been for a long time general manager of defendant’s office at 924 Broadway, in the city of New York, at an annual salary of $2,500. In March, 1892, a new corporation was formed, the Wakefield Rattan Company of New York, which took over the New York business of the defendant. The title to the property in New York was transferred to it, and it opened a bank account in its own name. Plaintiff became the president and a director of this company. No salary attached directly to the offices, but his old one continued in force, and was paid by checks of the New York company. His duties remained in character the same, but his services now forwarded a business which, in name, belonged, not to the defendant, but to the New York company.
    On February 15, 1893, defendant wrote to plaintiff, requesting his resignation as president and director of the New York company, and that his connection with the business cease upon its acceptance. 
      The next day the plaintiff wrote, tendering his resignation unconditionally. The day succeeding defendant wrote accepting the resignation, authorizing him to draw his salary to March first, and directing him to terminate his connection with the company at the close of business the next day, February eighteenth.
    Plaintiff sues to recover the unpaid balance of his salary for the year 1893, at the rate of $2,500 per annum. He was defeated upon the ground that he entered the service of the New York company on March 11, 1892, and that the defendant ceased to be liable to him from that date.
    
      Bacon & Van Steenbergh, for the appellant.
    
      John 8. Davenport, for the respondent.
   Barrett, J.:

We need not consider the point upon which the complaint was dismissed, or the reasons given by the learned judge for the dismissal. It was properly dismissed if for any reason the plaintiff had no legal claim against the defendant. Now, assuming that the contract relation between the parties was unaffected by the formation of the New York company, or by the position in that company which the plaintiff took, still that contract relation was terminated by what transpired when the plaintiff finally retired. At that time he not only resigned from the New York company, but completely severed his connection with the defendant’s business. He did not resign with a reservation, did not even suggest a continuing contract with the defendant, and never again offered his services. On the contrary, although his resignation occurred on the eighteenth of February, he accepted his salary for the current month, namely, until the first of March, and then, without a word of complaint or objection, turned over to his successor the keys of the store and the books of account and papers in his possession.

It is quite immaterial how the resignation was brought about. The defendant requested it and the plaintiff gave it. Possibly, probably even, a refusal to resign would have been followed by a dismissal; but still there was no compulsion. There was a strong intimation of what was impending, but there was, in fact, no dismissal and no breach. The contract was canceled by mutual consent, and that is necessarily the end of plaintiff’s case.

The complaint was properly dismissed and the judgment appealed from should be affirmed, with costs.

Yan Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  