TaiLexi AI U.S. Case Law

Dineen v. May

Richard B. Dineen v. "George" May and "Albert" Jekyll, Doing Business under the Firm Name of May & Jekyll (Names "George" and "Albert" Being Fictitious, Defendants' Christian Names Being Unknown to Plaintiff), Arthur B. Jekyll

Dineen v. May, 149 A.D. 469 (1912)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Appellate Division of the Supreme Court of the State of New York · State Appellate Courts
Decided
March 8, 1912
Judges
Miller
Citations
149 A.D. 469134 N.Y.S. 73 N.Y. Civ. Proc. R., (N.S.) 2961912 N.Y. App. Div. LEXIS 6425
Headnotes
Master and servant — action for wrongful discharge — contract construed — evidence on motion for judgment on pleadings. A contract of employment contained the following provision: “you [meaning the plaintiff] are to be in all respects subject to such orders as from time to time you may receive from your superiors and to dismissal at any time for incompetence or whenever your dismissal shall in the opinion of the Contractors be for the best interests of the Contractors or the Railway Company. The decision of the said Contractors as to the occasion for any such dismissal shall be final.” In an action for "wrongful discharge from employment, held, that the contract gave the defendant the absolute right to discharge the plaintiff ■with or without reason. On a motion by defendant for judgment on the pleadings before trial the court may consider the plaintiff’s bill of particulars and whatever might properly be considered on a motion for judgment at the opening of the trial.
Summary
Appeal by the plaintiff, Richard B. Dineen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1911, granting the defendants’ motion for judgment on the pleadings, and also from a judgriient entered in said clerk’s office on the 19th day of October, 1911, pursuant to said order.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Miller

Text extracted by OCR from a scanned original; check the original for exact wording.

Miller, J.:

This is an action for wrongful discharge from employment. The complaint alleged that the contract of employment was in writing. A copy of said contract was annexed to the answer.. The plaintiff served a bill of particulars in which he stated that the contract for breach of which the suit was brought was the contract, a copy of which was annexed to the answer. Motion was made for judgment on the pleadings pursuant to section 547 of the Code of Civil Procedure. Thereupon the court gave judgment for the defendants on the ground that the contract gave the defendants the absolute right to discharge with or without reason. The provision in question is as follows: “You [meaning the plaintiff] are to be in all respects subject to such orders as from time to time you may receive from your superiors and to dismissal at any time for incompetence or whenever your dismissal shall in the opinion of the Contractors be for the best interests of the Contractors or the Railway Company. The decision of the said Contractors as to the occasion for any such dismissal shall be final. ”

We think the learned justice at Special Term correctly construed the contract. Cases of agreements to perform work to the satisfaction of an employer are not in point. Here the *471 parties have provided by language too plain to require construction that the decision of the employer shall he final.

A point, which apparently was not suggested at the Special Term, is now made by the plaintiff, namely, that the bill of particulars cannot he considered on a motion for judgment on the pleadings. We have already said that one of the purposes of section 547 of the Code of Civil Procedure was to obviate the necessity of waiting until the trial to make the motion. (Clark v. Levy, 130 App. Div. 389 .) The purpose of the statute was to save expense and delay. It would he absurd to hold that on a motion for judgment on the pleadings before trial the plaintiff^ bill of particulars could not he considered, although, if the parties are required to prepare for trial, the case will he dismissed at the opening. We think that on such a motion as this the court may consider whatever might properly be considered on a motion for judgment at the opening of the trial.

The judgment and order should he affirmed, with costs.

Ingraham, P. J., McLaughlin, LAUGHLiNand Clarke, JJ., concurred.

Judgment and order affirmed, with costs.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 20 cases

View all citing references →
1912: 11913: 11915: 11916: 11917: 11919: 11920: 31921: 11922: 11925: 21926: 21927: 11931: 11937: 11939: 11951: 119122026peak 1920 · 3

Relies on it most ⓘ

  1. Samuel Kronman & Co. v. Public National Bank218 A.D. 624 (1926)
  2. Davis v. General Foods Corporation21 F. Supp. 445 (S.D.N.Y. 1937)
  3. Friede v. White Co.244 F. 272 (S.D.N.Y. 1917)
  4. A. O. Andersen Trading Co. v. Brody193 A.D. 681 (1920)
  5. Butler v. Lincoln Hospital & Home155 N.Y.S. 1001 (N.Y. Sup. Ct. 1915)
  6. Olsen v. Arabian American Oil Co.97 F. Supp. 801 (E.D.N.Y. 1951)

Most recent

  1. Olsen v. Arabian American Oil Co.97 F. Supp. 801 (E.D.N.Y. 1951)
  2. Packs v. Greenlee258 A.D. 137 (1939)
  3. Davis v. General Foods Corporation21 F. Supp. 445 (S.D.N.Y. 1937)
  4. Rosenzweig v. Schmitt232 A.D. 131 (1931)
  5. Richardson v. Gregory219 A.D. 211 (1927)
  6. Samuel Kronman & Co. v. Public National Bank218 A.D. 624 (1926)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Clark v. Levy, 130 A.D. 389 (1909) 34

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list