Toohill v. New York & Queens Gas Co. , 159 N.Y.S. 187 ( 1916 )

Jaycox, J.

I agree with my brother Kapper in every respect save two, and they are the termination of plaintiff’s employment and the question of accord and satisfaction. The plaintiff is employed for no fixed period. The provision in his appointment for payment “ at the rate of $100 per month ” fixes no period of employment. His appointment was to act as corporation inspector in connection with the work being carried on in the borough of Queens by the New York and Queens Gas Company. It would therefore appear that the plaintiff’s employment was limited to the time when that company was doing work in the streets.

The necessity of a permit from the department of water supply, gas and electricity is conceded. The defendant, in this case, obtained such permits. The 7th condition in the permit provides for forty-eight hours' notice to the borough engineer before any work is-done under it. This permit further expressly provides: “No work shall be done except under the supervision, to the satisfaction of, and in the presence of inspectors appointed by the Commissioner of Water Supply, Gas and Electricity, and the said company shall pay for the services of said inspectors at the rate of one hundred ($100) dollars per month each, during the time the work under this permit shall be actually in progress.” Under this permit the defendant was only to pay the inspector 11 during the time the work under this permit shall be actually in progress.”

The plaintiff is entitled to recover his pay at the rate of $100 per month for such period only as the work under the permit issued to the defendant was actually in progress. The burden of proof is upon the plaintiff to establish the continuance of the work. I am of the opinion that the defendant was not required to send any notice terminating plaintiff’s employment.

I am further of the opinion that there was an accord and satisfaction. When the plaintiff asked for his pay he was told that he must sign the receipts which were in evidence or he would get nothing; whereupon he signed the receipts in question, - each of which recited that the payment then made was in full to date. After he had signed this receipt he was paid. This brings the case clearly within the doctrine stated in Fuller v. Kemp, 138 N. Y. 238, where it is said: “ When a tender or offer is thus made, the party to whom it is made has no alternative but to refuse it, or accept it upon such condition. If he takes it, his claim is can-celled, and no protest, declaration or denial of his, so long as the condition is insisted on, can vary the result.” Nassoiy v. Tomlinson, 148 N. Y. 326; Genung v. Village of Waverly, 75 App. Div. 610; Komp v. Raymond, 42 id. 32. The same doctrine applies whether the dispute arises over a question of fact or of law. Jackson v. Volkening, 81 App. Div. 36, affd., 178 N. Y. 562; Dunn v. Whalen, 120 App. Div. 729, 731.

I advise that the judgment and order be reversed, with thirty dollars costs, and. judgment directed for the defendant dismissing the complaint, upon the merits, with appropriate costs below.

Clark, J., concurs.