Mesick v. United Collieries Co.

Opinion by Beaver, J., The plaintiff alleges in his statement “ that on or about the first day of April, 1899, the said plaintiff was employed by the said defendant, through its president, Henry Levis, as agent of the said company defendant, in the city of New York, for the term of one year from the first day of April, 1899, at a monthly salary of $150.” If there were no denial of this alleged contract, the fact that the plaintiff entered upon the discharge of his duties thereunder would of itself have been such notice as to put the defendant company upon inquiry as to the terms under which the plaintiff was employed. There is a distinct allegation in the affidavit of defense, however, that this was not an original employment; that the defendant was originally employed at a salary of $100 per month. His continuing to discharge the duties of his original employment, therefore, would be no notice whatever to the defendant company of any increase of salary. The power of the president to make such an increase is specifically denied. This raises a question of fact sufficiently specific to warrant its submission to a jury. If the salary originally paid is all that the defendant is bound to pay, the plaintiff has been more than paid according to the admissions in his statement. There was nothing in the retention by the plaintiff of moneys on account of salary which would necessarily put the defendant upon inquiry until the time at which it is alleged the discharge took place. The question raised by the affidavit, therefore, is simply the authority of the president to increase the plaintiff’s salary, without authority of the board of directors and without any notice to them. This is distinctly raised and is sufficient to carry the case to a jury. It is not necessary to consider the allegations of set-off contained in other paragraphs of the affidavit. [323] Judgment reversed and a procedendo awarded.