Appellate Term, First Department, March, 1918. [Vol. 102.

any evidence. Thus we have what amounts to an oral demurrer and the complaint is to be construed liberally in the plaintiff's favor.

The pleading was held defective because of the following allegations: "That heretofore and on or about the 31st day of August, 1916, the plaintiff and the defendant entered into an agreement, wherein and whereby the defendant employed the plaintiff as a milliner for a period of one year, at a salary of thirty ($30.00) dollars per week, commencing the 31st day of August, 1916, and terminating the 30th day of August, 1917." The reason assigned for the dismissal of the complaint was that no promise by the plaintiff to enter and continue in the employment was alleged; that there was a lack of mutuality and, therefore, of consideration for the defendant's alleged promise.

It becomes necessary to examine the meaning of the word "agreement" contained in the above quotation. Webster defines" agreement "as" an exchange of promises; mutual understanding, arrangement, or stipulation." In the case of Moran v. Standard Oil Co., 211 N. Y. 187, 197, we find the following pertinent statement by Cardozo, J.: "The very word agreement' connotes a mutual obligation. (Benedict v. Pincus, 191 N. Y. 377, 383, 384.) There may be a ' promise' to serve without a promise to employ, but there can be no agreement' for service without mutuality of rights and duties."

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In the light of the above we see that the complaint in effect alleges that "the plaintiff and the defendant entered into an exchange of promises (agreement) wherein and whereby." Mutual promises being alleged, there is no lack of consideration.

The conclusion is strengthened when we note that the complaint does not say that the plaintiff agreed with the defendant, for that might possibly mean that

Misc.] Appellate Term, First Department, March, 1918.

the plaintiff promised the defendant-a unilateral undertaking. What the complaint does say is that the plaintiff and the defendant entered into an agreement -in other words that both were participants, thus indicating mutuality and reciprocal obligations.

The court below apparently relied upon Grossman v. Schenker, 206 N. Y. 466, but as I read that case it is an authority in favor of the appellant. Grossman relied upon an oral contract of employment. The allegation that decided the case in his favor was the following: "It was mutually agreed by and between this plaintiff and the said defendant, that the said defendant would pay unto this plaintiff the sum of

for such superintendence." p. 467. There was no express promise alleged on the part of the plaintiff to do any work. It was held that a promise to superintend was implied and that the complaint was good. Eliminating the unnecessary word "mutually,' it is seen that there is no substantial difference between the allegations in the Grossman case and that in the case at bar.

In reading Sorrentino v. Bouchet, 161 N. Y. Supp. 262, strongly urged by the respondent, I find this statement by Shearn, J., at page 263: "In other words, there are certain cases where, on proof of an agreement between the parties, or such a meeting of the minds as is shown by an offer and its acceptance, a promise to perform a specified work may be implied, and the implied promise to do the work is just as effective as the express one made by the other party to pay." On this appeal we have such a situation as is suggested, and this Sorrentino case is in reality an authority in favor of the appellant.

Finally, the admonition of the Court of Appeals in the recent and somewhat similar case of Wood v. Duff-Gordon, 222 N. Y. 88, 91, should not pass

Appellate Term, First Department, March, 1918. [Vol. 102.

unheeded:" The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal."

Judgment and order reversed and new trial granted, with costs to appellant to abide the event.

GUY and DELEHANTY, JJ., concur.

Judgment and order reversed and new trial granted, with costs to appellant to abide the event.

MORRIS GOTTLIEB, Respondent, v. ISIDOR GINS and SIMON GINS, Appellants.

(Supreme Court, Appellate Term, First Department, March, 1918.) Statute of Frauds - pleading of actions - contracts - appeal trial.

Where, upon the trial of an action for wrongful discharge in which the complaint alleged that defendants employed plaintiff for a year at a weekly salary, it appeared that plaintiff was orally engaged on a Saturday and was told that the year of his employment would begin on the following Monday, and a denial of defendants' motion for leave to plead the Statute of Frauds on the ground that the contract was not to be performed within a year was on appeal held reversible error, and upon the new trial plaintiff, in addition to testifying to his employment on Saturday, told of a further conversation on the following Monday which amounted to nothing more than a request for a written agreement and defendants' reply, no new contract being made, a denial of defendants' motion for leave to plead the Statute of Frauds is error for which a judgment in favor of plaintiff entered upon a verdict will be reversed and a new trial ordered.

APPEAL from a judgment of the City Court of the city of New York in favor of the plaintiff in the sum of $462.24, entered upon the verdict of a jury, and from an order denying motion to set aside the verdict.

Misc.] Appellate Term, First Department, March, 1918.

Israel Grunstein, for appellants.

Max Schleimer, for respondent.

DELEHANTY, J. This is an action for wrongful discharge and has been twice tried. In the first instance plaintiff alleged in his complaint that the defendants employed him as a foreman in their business for one year at a weekly salary of twenty dollars. On the trial it developed that plaintiff was orally engaged on a Saturday and was told that the year of his employment would begin upon the following Monday. Thereupon defendants moved for leave to plead the Statute of Frauds on the ground that the contract was not to be performed within a year. The motion was denied, and exception was taken. Upon appeal the ruling was held to constitute reversible error, and a new trial was granted. Gottlieb v. Gins, 166 N. Y. Supp. 1041.

In the second trial plaintiff again testified to his employment by the defendant Isidor Gins on the Saturday in question, and in addition thereto told of a further conversation on the Monday that he began work. On this point the record reads as follows:

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By Mr. Schleimer: Q. What occurred on Monday following? Mr. Grunstein: I object as incompetent, immaterial and irrelevant. The Court: Overruled. Mr. Grunstein: I take an exception. A. Monday, I said, Good morning.' He said Good morning.' I said, 'I considered not to work for you, unless you give me a paper or a letter that you are employing me for a year. I shall not have any trouble.' He said, 'Don't worry, go upstairs, start to work, your year starts from today. Nobody will interfere with you.' I stood a few seconds and I thought, and I said, ' all right, I take your word for it,' and I went upstairs to work."

Appellate Term, First Department, March, 1918. [Vol. 102.

The attorney for the defendants again moved for leave to plead the Statute of Frauds and the following occurred: "Mr. Grunstein: I move to amend the answer to include the Statute of Frauds, on the ground that this contract in the complaint was made March 11thon or about March 11th, for the term of one year. It appears from the testimony that he was employed March 11th, for one year to commence from Monday thereafter, which is for more than one year; that from the pleadings the defendants could not have apprehended that such would be the testimony and could not be in a position to plead the Statute of Frauds. The Court: The motion is denied to plead the Statute of Frauds. Mr. Grunstein: I take an exception."

The

I think the court below has again fallen into error. The conversation which took place on the day plaintiff began work amounts to nothing more than a request for a written agreement, and defendants' reply to that request. No new contract was made. duties of the employee, the amount of his salary, and the mode of payment were not mentioned. All these were governed by the oral transaction of the previous Saturday. In order to constitute a new agreement, in a case like the present, sufficient to take it out of the operation of the Statute of Frauds, it must clearly appear that it was the mutual understanding of the parties that the old contract was given up, or put to an end, and that a new one was accepted in its stead. Such an understanding was not arrived at in this instance either by the words employed by the parties, their acts, or by any logical implication to be drawn. from them. Berrien v. Southack, 26 N. Y. St. Repr. 932; Bierman v. Simon, 110 N. Y. Supp. 267; Odell v. Webendorfer, 50 App. Div. 579. Under the circumstances described upon this appeal the transaction