ment of 1914-1915 "was oral, and was entered into by the plaintiff and defendant by their mutual consent and acquiescence in continuation for another term of one year of said agreement in writing." The statement as to the 1915-1916 continuation was substantially the same. At the trial the 1913-1914 agreement, which was in writing, was put in evidence and admitted, over some objection of the defendant, which was not clearly formulated; but no exception was taken. Plaintiff then testified that on October 15, 1914, defendant was not in town, but was on the road; that "before Mr. Polonsky went on the road I told him, 'Would I remain here next year?' And Mr. Polonsky told me, 'You will come and remain here for 1914;' and I told him, 'It is all right.' I told him, 'Mr. Polonsky, it is necessary you shall raise me, * * * $40.' He said, '$40? Well, I will let you know.'" On Polonsky's return he said: "Mr. Pomerantz, you shall have $38." He also testified that he received this $38 on the Saturday of each week beginning October 15, 1914. On the 15th of October, 1915, nothing was said, and plaintiff continued working until his discharge. To none of this evidence was any objection taken. [1] Respondent now seeks to sustain the judgment of dismissal on two grounds: First, "that the proof was a departure from, and at variance with, the pleadings." Even if that were so, the complaint. should be deemed amended to conform to the proofs; but there is no such variance. [2] It is not necessary to decide as an abstract question whether the renewal of a servant's yearly hiring implied by his continuing to work should properly be denominated as having been made "orally." The complaint did not set forth the manner of the renewal. Defendant asked whether it was in writing or oral. Surely plaintiff would have been chargeable with frivolousness, had he replied that it was neither. The bill of particulars sufficiently apprised defendant of the nature of the claim when plaintiff recited in his bill of particulars that the renewal was oral "by their mutual consent and acquiescence in continuation for another term of one year." [3] Respondent, in support of his contention, cites Brightson v. H. B. Claflin Co., 180 N. Y. 76, at page 80, 72 N. E. 920, and quotes at length from the opinion as follows: "It is alleged that the written agreement for five years' services, which had just expired, was continued for a further term of five years upon the same terms and conditions as were embraced in the first written contract. An agreement to employ the plaintiff for five years, in order to be valid. should be in writing; and, since it is alleged that the first written agreement for five years was continued for another five years, the legal effect of the allegation is that the second agreement was evidenced by some writing signed by the party to be charged thereby." In Respondent's counsel has omitted from the quotation the clause which I have italicized. The very omission is significant of the fact that counsel appreciated the distinction between the two cases. the instant case no inference is to be drawn from the allegations of the complaint to the effect that the continuation of a yearly employment was in writing, because such argeement need not be in writing in order to be valid. [4] Respondent's second point is that, as the first renewal, namely, the renewal for the term of 1914-1915, was made after defendant's return to town, and after October 15, 1914, to continue until October 15, 1915, it was an employment for less than a year, and that therefore the implication of renewal for the term of 1915-1916 did not arise. See Adams v. Fitzpatrick, 125 N. Y. 124, 26 N. E. 143. This argument, I take it, is based on the assumption that plaintiff's continuance at work on and after October 15, 1914, effected an implied renewal of the previous written contract at $34 a week, and that the actual employment for the period 1914-1915 was made a few days after October 15, 1914, at $38 a week. Even if that were the fact, as testified to by plaintiff, I am inclined to believe that, although it might be true that the first contract had become automatically renewed on October 15, 1914, for the coming year at $34 a week, and the increased wage of $38 a week might not have been recoverable by the plaintiff, because the promise to so increase it was without consideration, nevertheless, both parties having treated the contract as valid and subsisting until the termination of the year 1914-1915, the implication of a renewal at the increased rate, which is an implication of fact, would naturally arise. See Adams v. Fitzpatrick, supra, 125 N. Y. at pages 130 and 127, 26 N. E. 143. That precise point, however, need also not be decided, for according to the plaintiff's testimony, upon which the complaint was dismissed, it was understood between defendant and himself before October 15, 1914, that the contract should be renewed at an increased wage, leaving the amount of the increase to be determined by a further agreement on defendant's return from the road. While here, again, it may be that, had the parties failed to agree, on defendant's return, plaintiff would not have been able to enforce "an agreement to agree." See Mayer v. McCreery, 119 N. Y. 434, 23 N. E. 1045; Petze v. Morse, 125 App. Div. 267, 109 N. Y. Supp. 328, nevertheless, as the term of the contract was fixed in advance of the beginning of a new term, and as the compensation then left unfixed was actually subsequently agreed upon between the parties, the contract became, and was, a binding agreement for one year at the new rate. Judgment reversed, and a new trial ordered, with $30 costs to appellant to abide the event. All concur. ORSETTI v. BONETTO. (Supreme Court, Appellate Term, First Department. April 9, 1918.) 1. APPEAL AND ERROR 1195(1)-EVIDENCE-ADMISSIBILITY. Where, on first appeal, the Appellate Term held certain written evidence inadmissible, it was error on the retrial to permit its introduction and a colloquy in presence of jury between attorneys in regard to its admission. 2. TRIAL 146-WAIVER OF ERRORS. In action for slander, where counsel unwarrantedly stated substance of letters which were inadmissible, statement of defendant's counsel For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes that he no longer objected to the letters was not a waiver of defendant's right to a withdrawal of a juror and declaration of mistrial. From a Appeal from City Court of New York, Trial Term. Action by Suilio Orsetti against Giuseppe Bonetto. judgment on the verdict of a jury for plaintiff, defendant appeals. Reversed, and new trial granted. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. Hobart S. Bird, of New York City, for appellant. Palmieri & Wechsler, of New York City (Samuel Wechsler, of New York City, of counsel), for respondent. BIJUR, J. Plaintiff brought this action in November, 1914, for damages by reason of a slander alleged to have been uttered by the defendant in September, 1914. Letters had been written by defendant to various persons during April and May, 1916, in which letters occur statements that might possibly be regarded as a reference to the same matter alleged to have been covered by the slanders charged in September, 1914, but even that is very far from clear. On a previous appeal (see 163 N. Y. Supp. 417) it was held by this court that these letters were inadmissible. Upon the present trial defendant had denied the utterance of the slanders, the subject-matter of the action. He added, evidently as emphasis of his denial: "I never have spoken about Orsetti [the plaintiff]. nothing." Thereupon plaintiff's counsel showed him one question, and asked him whether he had written it. I have said of the letters in He then asked: "Q. Did you ever make any charge concerning this plaintiff, etc.? A. No, sir. Q. Did you ever write as follows concerning this plaintiff: *-?" Immediately thereafter plaintiff's counsel, replying to defendant's counsel's objection, said: "It is for the purposes of contradicting the witness. He said he never uttered the slanders. He has not only repeatedly uttered them, but wrote them, and for the purpose of contradicting him I propose to show by his own writing that he circulated a number of letters, this being one." Thereupon defendant's counsel moved to withdraw a juror and for a new trial, which motion was denied. A colloquy ensued, in the course of which plaintiff's counsel, among other similar remarks, said, referring to "the slander, that he [defendant] as matter of fact wrote it in several letters, and repeated it and published it." Finally the letters were offered in evidence, and defendant's counsel said that he still claimed that they were immaterial, but that he no longer objected to them "after all this talk." Thereupon the court remarked: "If you had objected to the letters being put in evidence, I would have sustained the objection." [1, 2] Thus written testimony held by this court to have been incompetent and immaterial, and which was manifestly prejudicial to the defendant's case, was practically submitted in advance to the jury by the unwarranted questions and remarks of plaintiff's counsel. Defendant's counsel's request for the withdrawal of a juror and the declaration of a mistrial should have been granted; and the right thereto was not waived by the fact that, after an adverse decision on that application, counsel acquiesced in the admission of the evidence, the substance of which had already been told to the jury. Judgment reversed, and new trial granted, with costs of the appeal to appellant. All concur. ZIMAND V. KIRSCH. (Supreme Court, Appellate Term, First Department. TIME 10(6)-RENDITION OF JUDGMENT-VACATION. April 9, 1918.) Where action was tried May 15th, and at close of trial the court stated it would decide the case the following day, and gave attorney for plaintiff opportunity to file brief, May 16th was the day of submission, and rendition of judgment May 31st, May 30th being a legal holiday, was within statutory period of 14 days after submission. Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Bertha Zimand against Cecilia Kirsch. Judgment for defendant, dismissing the complaint on the merits. From an order vacating same, defendant appeals. Reversed. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. Harold M. Phillips, of New York City (H. Salmon Miller, of New York City, of counsel), for appellant. Jacob M. Friedman, of New York City, for respondent. BIJUR, J. The learned judge below, who decided the case originally, decided this motion also, handing down at the same time the following memorandum : "Upon the foregoing papers, this motion having been referred to me for decision, I find on an inspection of the record herein that this case was tried on the 15th day of May, 1907; that at the close of the trial [I said] that I would decide the case on the following day; that thereafter the attorney for the plaintiff requested an opportunity to file a brief, which was granted. My understanding was that I was to have 14 days from the date of the filing of said brief within which to make my decision; but as I have no record of same, nor definite recollection as to such a statement having been made, I am constrained to grant this motion. "Motion granted, and case sent back to the general calendar. "W. C. Wilson, J. M. C." The judgment in this case was actually rendered on the 31st day of May, 1917. As May 30th (Memorial Day) was a legal holiday, the judgment would have been rendered within the statutory period of 14 days after submission of the case, provided the date of submission was the 16th. In my opinion, the statement of the facts as made by For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes the judge himself is sufficient to indicate that the date of submission, namely, the date when the briefs were handed in (see Hill v. Hill, 50 Misc. Rep. 654, 99 N. Y. Supp. 410), was the 16th. Moreover, this is confirmed by the affidavit of appellant's attorney, to the effect that the summons contained a notation that briefs should be submitted on the 16th, and that he himself had asked the trial justice for time to submit a memorandum until the 16th, and that the justice said he would wait for the memorandum before deciding the case. Order reversed, and judgment reinstated, with $10 costs to appellant. All concur. FILM EXCHANGE v. UNITED STATES FIDELITY & GUARANTY CO. (Supreme Court, Appellate Term, First Department. April 4, 1918.) APPEAL AND ERROR 767(2)—BRIEF ON APPEAL-INSERTION OF EVIDENCE STRICKEN OUT. Where appellant's attorneys in their brief quoted all the evidence, part of which was stricken out, giving no indication that any of it was stricken out, such action was a manifest impropriety, for which the entire proposition under which the evidence was given must be stricken from the brief. Appeal from City Court of New York, Trial Term. Action by the Film Exchange against the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant appeals. On appellee's motion to strike from appellant's reply brief a certain point. Motion granted. See, also, 160 N. Y. Supp. 1019. Argued March term, 1918, before BIJUR, FINCH, and MULLAN, JJ. Chambers & Chambers, of New York City, for appellant. PER CURIAM. Under the guise of a reply brief, the appellant's attorneys quote from the record a portion of the testimony, and urge upon this court the value and force of the same, making no mention of the fact that such testimony was stricken out by the trial justice without objection or exception. Upon this motion to strike from the brief the citation of such testimony, appellant's excuse for its insertion is that it is impossible to determine what portion of the testimony the court directed to be stricken out. We find no such difficulty. But, assuming it to have existed, appellant's attorneys have quoted all the evidence, without any indication that any of it was stricken out; a manifest impropriety, for which the motion must be granted. Motion granted, with $10 costs to be paid by the appellant's attorneys personally. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |