Opinion
January Term, 1896.
Bacon Van Steenbergh, for the appellant.
John S. Davenport, for the respondent.
We need not consider the point upon which the complaint was dismissed, or the reasons given by the learned judge for the dismissal. It was properly dismissed if for any reason the plaintiff had no legal claim against the defendant. Now, assuming that the contract relation between the parties was unaffected by the formation of the New York company, or by the position in that company which the plaintiff took, still that contract relation was terminated by what transpired when the plaintiff finally retired. At that time he not only resigned from the New York company, but completely severed his connection with the defendant's business. He did not resign with a reservation, did not even suggest a continuing contract with the defendant, and never again offered his services. On the contrary, although his resignation occurred on the eighteenth of February, he accepted his salary for the current month, namely, until the first of March, and then, without a word of complaint or objection, turned over to his successor the keys of the store and the books of account and papers in his possession.
It is quite immaterial how the resignation was brought about. The defendant requested it and the plaintiff gave it. Possibly, probably even, a refusal to resign would have been followed by a dismissal; but still there was no compulsion. There was a strong intimation of what was impending, but there was, in fact, no dismissal and no breach. The contract was canceled by mutual consent, and that is necessarily the end of plaintiff's case.
The complaint was properly dismissed and the judgment appealed from should be affirmed, with costs.
VAN BRUNT, P.J., WILLIAMS, PATTERSON and O'BRIEN, JJ., concurred.
Judgment affirmed, with costs.