Appeal from Trial Term, Orange County.
Action by John A. Stanton against the Erie Railroad Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.
Defendant having agreed to employ plaintiff as locomotive engineer as soon as a vacancy occurred and he was able to take the position, evidence held to show that such a vacancy occurred.
[116 N.Y.S. 376] Henry
Bacon, for appellant.
Rosslyn M. Cox (Abram F. Servin, on the brief), for respondent.
Argued before WOODWARD, JENKS, GAYNOR, RICH, and MILLER, JJ.
This action is for breach of contract. The plaintiff, when a locomotive fireman in the employ of the defendant, was injured, and brought an action for negligence against the defendant. On April 1, 1904, the defendant delivered to the plaintiff the following writing:
" Erie Railroad Company. Office of the General Manager, No. 21 Cortlandt Street, New York, April 1, 1904. Mr. John A. Stanton, Port Jervis, N. Y.- Dear Sir: In consideration of your withdrawing your action against this company and your claim growing out of an accident to you on June 17, 1903, upon [116 N.Y.S. 377] the payment to you of the sum of $5,000 cash, the Erie Railroad will give you employment as engineer when you become physically able and are otherwise competent and qualified to discharge the duties of that position as required, and as soon thereafter as there is a vacancy, and such employment shall continue while the company has work of that character to perform and so long as you remain physically able, competent, and otherwise qualified to perform such duties, subject to the right of the company to discharge you for failure to faithfully perform such duties, to comply with its rules and regulations, or for other misconduct. Yours truly, J. C. Stuart, General Manager."
A general release was executed by the plaintiff, and the $5,000 was paid to him. The plaintiff now complains that on June 29, 1904, when he was qualified as a locomotive engineer, there was a vacancy, but that the defendant, although requested, neglected and refused to provide him with such employment, and continued in such refusal thereafter, although there were numerous vacancies. The defense was a general denial. The plaintiff gained a verdict of $4,500, which was at the rate of $4 a day for 1,125 days.
The defendant appellant raises several points. The question whether the contract was ultra vires was not raised by the pleadings, and therefore is not available. Keating v. American Brewing Co., 62 A.D. 501, 71 N.Y.Supp. 95; Richmond Co. Soc. P. C. C. v. City of New York, 73 A.D. 607, 77 N.Y.Supp. 41.I think, however, that the contract may be sustained under our judgment in Usher v. N.Y. Central & Hudson River Railroad Co., 76 A.D. 422, 78 N.Y.Supp. 508; affirmed 179 N.Y. 544, 71 N.E. 1141.
The defendant contends that it has fulfilled its contract. It had a system of employment for firemen and engineers, formulated in certain rules and regulations of agreement with the Brotherhood of Locomotive Engineers and the Brotherhood of Locomotive Firemen. This system contemplated promotion of firemen to engineers in regular order from a list made up upon the basis of fitness, record, and long service. Under it, firemen were advanced to engineers, engineers were assigned to duty according to seniority, and from time to time advancements of firemen were made temporarily and reductions of some engineers were made temporarily, according to the volume of the defendant's business. The plaintiff was a member of the Brotherhood of Locomotive Firemen, and knew of this system and of the agreements. The defendant shows that plaintiff was put upon the roll of engineers, but under its system there had not been during the period in question a vacancy in which he could be employed. This contention is necessarily based upon the proposition that the defendant only undertook to place the plaintiff on its roll as an engineer, but that his employment as an engineer, whereby he gained his pay, was subject to the same rules, regulations, and conditions as regulated that of other engineers. In fine, only the status of engineer on the defendant's roster was assured by this contract. But the obligation of the contract is absolute, save with the expressed conditions that the plaintiff shall become physically able and otherwise competent and qualified. These conditions accentuate the absolute undertaking, in that exceptions prove the rule.
If the defendant intended by this agreement that the plaintiff should simply have a rating as an engineer, with employment as such afforded [116 N.Y.S. 378] only by said system, rules, regulations, and agreements, it could readily have used apt words of expression. But it did not. On the contrary, its expression is, not only that the plaintiff would have a vacancy as soon as it occurred, but also that such employment would continue while there was work of such character to be done, subject only to discharge for misconduct. I think that the plaintiff could thus understand the agreement as complete in itself. The transaction was not an ordinary hiring, which involved merely the question of wages for work, so that it was reasonable that the servant would infer that he was subject to the general system which regulated the service of his fellows; but the contract of employment was extraordinary, made in part consideration of the servant's release of a claim against the defendant. Moreover, can it not be said that the very agreement itself, even as the defendant would interpret it, is a departure from its system, inasmuch as it affords to one not then an engineer, but at best a former fireman, a place on its roll of engineers, irrespective of his eligibility under its system? I think that the jury did not err because it practically found that the defendant obliged itself to employ plaintiff whenever there was a vacancy, and to continue him in such employment while there was work for an engineer and he demeaned himself well. Jones on the Construction of Contracts well says:
" It may also be said that it is reasonable and just to conclude that where one of the parties to a contract, in describing his own obligations, uses language susceptible of more than one interpretation, the person with whom he is contracting will undertsand this language in the sense which is most favorable to his own interests. And it is proper that the ...