Opinion
September 19, 1956
Appeal from the Onondaga County Court.
Present — McCurn, P.J., Kimball, Wheeler, Williams and Bastow, JJ.
Order of Onondaga County Court affirming a judgment of Syracuse Municipal Court dismissing plaintiff's complaint modified to the extent of granting plaintiff leave to replead and as modified affirmed, without costs of this appeal to either party. Order of Onondaga County Court affirming order of Syracuse Municipal Court vacating notice of examination before trial affirmed, without costs. We are informed that appellant, William T. Neider, died on July 19, 1956. In this action our decision will be entered nunc pro tunc as of the date of argument, May 17, 1956. (See Morgan v. Keyes, 302 N.Y. 439.) Memorandum: In our opinion the lower court was correct in dismissing the complaint in these actions. It seems to us, however, that the plaintiffs should be given leave to replead. In the present posture of the record on appeal it is difficult for us to ascertain the impact upon the over-all picture of the relationship between the plaintiffs and their employer of the respective notices alleged in the answering affidavits to have been posted or published by the employer in 1953 and again in 1954. It may be possible that certain rights accrued to the plaintiffs as a result of these alleged inducements relating to severance pay held out to the employees. We do not pass upon this question but conclude that as a minimal relief the plaintiffs should have an opportunity to replead if they are so advised. All concur. Motion to dismiss appeal denied. (See Civ. Prac. Act, § 623, subd. 2.)