Opinion
November 22, 1960
Interlocutory judgment, entered on June 20, 1960, directing defendants to account to the plaintiff, unanimously reversed, on the law and on the facts, and the amended complaint dismissed, with costs to defendants-appellants. This action is one for damages for breach of a contract of employment as salesman on a commission basis for the period September 1, 1954 to June 30, 1955. On the trial the parties stipulated the sole questions to be determined by the court were (1) whether as alleged in the amended complaint the contract of employment was for the term from September 1, 1954 to June 30, 1955; and (2) whether plaintiff was wrongfully discharged on January 17, 1955. The trial court rendered a decision for the plaintiff on the theory that the contract of employment was one from year to year, a theory not advanced by plaintiff in his complaint or at the trial. The evidence fails to establish employment for any definite period, and we find the employment was one at will. In a nonjury case this court should enter the judgment the trial court should have entered. ( Mintz v. Clavin Co., 4 A.D.2d 635, affd. 4 N.Y.2d 886.) The defendants' motion to dismiss the amended complaint should have been granted. Settle order on notice.
Concur — Breitel, J.P., Valente, McNally and Stevens, JJ.