APPEAL by the defendant, the Eddy Valve Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 14th day of June, 1911, upon the verdict of a jury, and also from an order entered in said clerk's office on the 21st day of June, 1911, denying the defendant's motion for a new trial made upon the minutes.
Edgar T. Brackett, for the appellant.
John Scanlon, for the respondent.
This judgment is wrong upon the law and the facts. In December, 1890, the plaintiff made a contract with the defendant whereby he was to remain in its employment on the following terms: Commencing January 1, 1891, the company to pay $25 per week for fifty-nine hours labor; all lost time to be deducted at that rate and thirty cents per hour for actual overtime allowed. It was also to pay the sum of $200, payable in
quarterly payments of $50 each in advance. He continued to work, and in December, 1893, he was told that the company could not pay him any longer the $200 per year, but would continue the other payments and allow him ten days vacation at the expense of the company. He made no dissent.
In July, 1894, his attention was called to the fact that the bookkeeper was charging his lost time against him, and he was asked his pleasure with reference to it. He said that he had rather have the lost time deducted and the equivalent given to him at the end of the year. It was understood that $50 was to be allowed. Thereafter it gave him and he accepted $50 at at the end of the year, about Christmas time. This was paid annually until January, 1908, when he was informed that the company could not afford to pay him the $50 a year longer. He was then about sixty-nine years old. He made no dissent. There is no substantial dispute about this last conversation, which plaintiff concedes was in January, 1908. He remained in the company's employ without any dissent, receiving only the weekly wages thereafter until September, 1910, when he quit the employment and brought this action, and by the judgment has recovered the $200 a year for about seventeen years, less $50 per year deducted as payments thereon from January 1, 1903, to January, 1908.
There is no substantial dispute about the facts. Any dispute is merely a verbal one, but the main facts that he was informed in 1893 that the $200 would not be paid longer; that he remained thereafter without dissent; that in 1894 when it was discovered that his lost time was being charged to him it was agreed that $50 was to be paid in lieu thereof at the end of each year; that settlements were thereafter made pursuant thereto; that in 1908 he was told that the $50 would not be paid any longer and that he continued at work without objection, are entirely undisputed. He says that when he was told the company did not want to pay the $200 any longer his answer was, 'I will see about it,' and when asked why he continued to make settlements from year to year with the $200 deducted he says: 'I understood that he didn't want to pay it. Q. And wasn't going to? A. Well, sir, that was another question whether he would. No, sir, I did not understand that he was not going to
pay it any more; that he didn't want to pay; he didn't pay it to me any more. From that time until the time I quit in 1910, or about that time, I never made any further claim for the $200 at all. I just went on receiving the weekly pay, getting about holiday time $50 a year. * * * During the eighteen or nineteen or twenty years prior to the time of my employment ceasing, I didn't make claim for this $150 a year and collect it because I had every confidence in the Eddy Valve Company, that they were in good standing, and that my money was safe, more so perhaps than in many of the banks. It was in good standing. And I thought if I made any claim that it would conflict and perhaps be the cause of my leaving, and I was not circumstanced to leave. * * * I have no reason for not finding out what they understood about it, only every confidence in the company; I didn't find out what they understood, because I didn't want any misunderstanding. * * * I preferred to stay, even if they did not understand that they were owing me anything for this $200 a year. I had it in mind that if I said they were not paying me this $150 a year, and that they owed me the balance of $150 a year, that they would not keep me, perhaps that they would-- from what Mr. Thomas Knickerbocker said, that that was more than they were willing to pay, and therefore I kept still about it. * * * I said to Mr. John Knickerbocker when he came home that Mr. Rogers had when he paid me the last installment said that his father, Mr. Thomas Knickerbocker, wanted to discontinue the $200 and he made the reply, 'I suppose, Mr. Hughes, you don't like that,' and I says, 'no, sir, and I don't intend to like it,' and he said, 'I will see,' and that was all he said.'
These are the only suggestions which the plaintiff can urge in his favor, but they are not sufficient to change the fact that he was informed that the defendant was not willing to pay the $200 a year, that he made no dissent and apparently acquiesced, as he says, in order to have no misunderstanding and not to lose his job. Of course he did not like it, but he was called upon to dissent or assent and his subsequent conduct shows ...