The opinion of the court was delivered by: BYERS
This defendant's motion for summary judgment raises an interesting question of construction of a written contract dated October 15, 1949, whereby the plaintiff was employed as an airplane pilot by defendant, his services to be rendered in Saudi Arabia.
The complaint alleges that the hiring was on or about September 15, 1947, for a term of 24 months, but the copy of the contract attached bears the date above noted, and the minimum period is stated to be 30 months. These apparent discrepancies are not important to this motion; nor is there any apparent dispute as to the rate of compensation.
The question for decision is whether the defendant's termination of the hiring on or about July 5, 1948, was the exercise of a prerogative duly contracted for, or that it must be vindicated by the verdict of a jury based upon its view of the attendant circumstances.
The following are quoted from the agreement signed by both parties as of October 15, 1947:
A. The concluding paragraph reads: 'Your application for employment, together with this letter of agreement, constitute the terms of your employment by this Company.'
B. The application dated May 21, 1947, signed by plaintiff, contains the following: 'Should I be given employment by you, either the position applied for (pilot), or some other, now or hereafter, I hereby agree that such employment may be terminated by you at any time, without liability to me for wages or salary except such as may have been earned at the date of such termination.'
C. The said letter of agreement contains the following:
'The Company reserves the right to terminate your services at any time in any of the circumstances described hereunder:
'(a) You will be summarily dismissed, without notice and without return transportation and traveling expenses, for conduct which, in the opinion of the Management, would be detrimental to the best interests of the Company, for wilful neglect of duties, or for non-compliance with regulations; (Note. This clause was not resorted to, and is quoted for contrast with the following)
'(b) The Company may terminate your services for any other reason after departure from the continental United States upon payment of minimum return transportation and traveling expenses, salary for normal travel time to place of recruitment (New York), and upon payment of a sum equivalent to a minimum of four weeks' basic salary;'
The foregoing are all of the terms of the contract involved in this litigation.
The plaintiff's statement in his deposition (one of the records presented on this motion) is clearly to the effect that the termination of his employment was pursuant to (b) above, and that he had received all sums payable to him according to its terms.
The motion is contested by plaintiff on the theory that clause (b) is not to be distinguished from (a) in respect of the necessity for a showing that there was good and sufficient reason for its invocation, whereby a triable issue is exposed.
It is common ground that the question is to be determined under New York law, and it will be so ...