Kalish, 166 N. Y. 368, 59 N. E. 917; Harri- [ pose the terms upon which removal will be son v. Harrison, 36 N. Y. 543; Van Schuyver refused. There had been a threat to viov. Mulford, 59 N. Y. 426; Tiers v. Tiers, 98 late the trust. There had been a change of N. Y. 568; Kennedy v. Hoy, 105 N. Y. 134, conditions, by force of which the husband 11 N. E. 390. The grantor's purpose is not had become an unsuitable trustee without doubtful. He wished to maintain the family some restraint upon his powers. At least, as a unit while he and his wife or either of some evidence is in the record from which them lived. During that time there was to those conclusions might be drawn. It is be a single trust. Its income was to be de- true that the creator of this trust had revoted to the support of the family and the served to himself the broadest rights ofmaintenance of the family establishment. management. His discretion was to be "abNo one of the beneficiaries during that peri- solute and uncontrolled." That does not od had the right, irrespective of his or her mean, however, that it might be recklessly needs, to any determinate proportion. For or willfully abused. He had made himself two lives and two only, this unified trust a trustee and in so doing he had subjectwas to endure. Then there was to be a ed himself to those obligations of fidelity change. The parents' death would disrupt and diligence that attach to the office of the family life. The single trust was there- trustee. He had power to "invest" the monfore to be broken up into two separate eys committed to his care. He had no power, trusts, one for each daughter. The duties under cover of an investment, to loan them of the trust company were thenceforth to be to himself. His discretion, however broad, "the ordinary duties of a trustee." Each did not relieve him from obedience to the beneficiary was to receive her own share. great principles of equity which are the life The individual was to supplant the family. of every trust. Globe Woolen Co. v. Utica G. We think there is a line of cleavage here & El. Co., 224 N. Y. 483, 121 N. E. 378; Munwhich the court may safely follow in decree- son v. Syracuse, G. & C. R. R. Co., 103 N. ing a severance of the trusts. The primary Y. 58, 8 N. E. 355. But the finding is that purpose, the maintenance of the family, the he had threatened to borrow the principal preservation of its communal life, while the of the fund, and use it in the payment of his head of the family survives to preserve its debts. He did not say that he would use it. unity and cohesion, that purpose is main- He said, however, that he would use it if he tained. The secondary purpose, support of wished. That was a threat to abuse his the daughters separately, when the family power. The threat made some remedy apshall be disrupted and its members scatter-propriate. The form and extent of the remed, that purpose and that only fails. Weedy were to be determined by the trial court can see no ground for the belief that the in the exercise of a sound discretion. The grantor would have sacrificed the one be- least that could reasonably be done was to cause unable to attain the other. restrain the threatened loan. In determining, however, whether there was need of something more, the court was not to view the threat as an isolated fact. It was to give heed to all the circumstances of a peculiar situation. Latterstedt v. Boers, supra, p. 389. Only thus could it determine whether the trustee was "an unsuitable person to execute the trust." There had been a complete change of conditions since the deed of trust was made. Husband and wife were separated. The old unity of interest was gone. The husband had the temptation, if not the purpose, to put his own welfare ahead of that of the wife who had challenged him to litigation. There was a condition of dissension and estrangement that went far, of itself, to impair his capacity for disinterested and faithful service. Quackenboss v. Southwick, supra. But this is not the whole story. The trustee had changed his residence, had left no property, or none of any substance, in this state, and had risked enormous sums in a speculative enter[5-7] Unless the discretion has been abus-prise in Florida. An award, of alimony had ed, it is not subject to revision here. The been made, but there was nothing here to Supreme Court did not remove this trus- be sequestered. Code Civ. Proc. § 1772. tee, but it took measures designed to hold Nothing except the trust fund was available him to the performance of his duty. The to the wife if it became necessary to enforce power to remove includes the power to im- | in this jurisdiction the duty of support.

[4] The plaintiff comes before the court, then, as the beneficiary of a valid trust. The question remains whether good cause has been shown for curbing the powers of her trustee. When we speak of her trustee, we mean her husband, for the duties of the trust company are merely formal. The Supreme Court has jurisdiction "to remove a trustee who has violated or threatens to violate his trust, or who is insolvent, or whose insolvency is apprehended, or who for any other cause shall be deemed to be an unsuitable person to execute the trust." Real Prop. Law, § 112, subd. 2; Consol. Laws, c. 50. "This gives a broad power to the court, and leaves the question of the removal of the trustee very largely to its discretion." Wilson v. Wilson, 145 Mass. 490, 492, 14 N. E. 521, 524 (1 Am. St. Rep. 477); May v. May, 167 U. S. 310, 320, 17 Sup. Ct. 824, 42 L. Ed. 179; Quackenboss v. Southwick, 41 N. Y. 117; Latterstedt v. Boers, L. R. 9 App. Cas. 371.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

ice in 1910. The defendants wrote him that his employment was to continue for two years from January 1, 1911, at an annual salary of $15,000. The hope was expressed that at the end of the term he might be accepted as a partner. He was given the privilege of starting his employment earlier if he pleased. In point of fact, he did start it in July, 1910. He took the place of another man, then leaving the defendants, who had acted as general manager. At once, the defendants gave written notice to their salesman. They wrote that the plaintiff was about to join their staff. "He will become our sales manager." And again:

"We feel confident that with him in command, we will not only keep up our business, but will increase it to the largest dimensions."

The plaintiff's position is thus described in letters signed by the defendants. Its range is sketched in outline. The picture is completed when we view the course of dealing. The defendants were manufacturers, importers, and sellers of ribbons. The plaintiff took charge of the selling department. He supervised and directed the salesmen. He helped the defendants themselves in selecting designs and fixing prices. He made trips abroad, inspected the foreign styles, and purchased the foreign merchandise. His position was one of general supervision. The partners were his sole superiors.

At the beginning of 1913 there was a renewal of the employment for three years, but at a larger compensation. The new contract was made by word of mouth. Nearly a year later its terms were put in writing. Some of the defendant's salesmen had expressed hostility toward the plaintiff. The defendants reproved him, and said that he would have to leave. The disagreement, though amicably adjusted, seems to have been a warning to the plaintiff that his tenure was insecure. Thus warned, he requested and received the following memorandum:

"I am going to put Mr. McLaren, who has been assisting you, in your position."

The plaintiff was notified in writing: "The selling department will be in the hands of Mr. McLaren, and you will naturally report to him."

The title of sales manager, which had once been his, was thenceforth to be another's. In the past the chief business had been the sales to dealers in ribbons. One of the minor incidents had been the sales to manufacturers of dresses, underwear, and other articles, who used ribbons incidentally in making up their products. The plaintiff was directed in the future to attend to this trade exclusively. According to his testimony, he was to do the work of salesmen who had formerly been paid at the rate of $25 a week. According to the testimony of the defendants, he was to have salesmen under him, and was to develop a new branch of trade. Over him, however, was to be McLaren, with general power of control. The plaintiff protested that the defendants in thus changing his duties were changing his position. His refusal to submit to the change was followed by his discharge, and the discharge by this lawsuit. plaintiff had a verdict of $24,794.52. Appellate Division reversed the judgment and dismissed the complaint.

The

The

[1] The chief question in the case grows out of the statute of frauds. The contract of employment was not to be performed within a year. There is need, therefore, of a note or memorandum of its terms, subscribed by the parties to be charged. Personal Property Law, § 31; Consol. Laws, c. 41. The defendants signed a memorandum which continued an existing employment, but which did not describe its duties. The question is whether the position may be identified by proof of the surrounding circumstances. The employment under the new contract began in January. The memorandum was not signed till the following December. It assumes the existence of a position which the plaintiff is then filling. It says that the employment shall be continued for a term and at a salary prescribed. A position then held is carried forward and preserved. The tests to be applied in order to identify the employment are thus embodied in the writing. We are not left to gather the relation between the parties from executory promises. We are informed that the relation then existing is the one to be maintained. If A. agrees to sell to B. "the house and lot now occupied by the seller," the description is not void because the bounds of occupation must be esFor a time the plaintiff's services contin- tablished by parol. Doherty v. Hill, 144 ued unchanged. The trouble began in the Mass. 465, 467, 11 N. E. 581; Hurley v. summer of 1914. Some of the events of that Brown, 98 Mass. 545, 96 Am. Dec. 671; Mead season are in dispute. We state the plain- v. Parker, 115 Mass. 413, 15 Am. Rep. 110; tiff's version, for it was accepted by the jury. Shadlow v. Cottrell, L. R. 20 Ch. D. 90; Plant One of the defendants said to the plaintiff: | v. Bourne, 1897, 2 Ch. 281; Cave v. Hastings,

"New York, December 22, 1913.
"It is understood between Johnson Cowdin &
Co. and Leon Marks that the arrangements
made for employment of Leon Marks in our
business on January first, 1913, for a period
of three years from that date at a salary of
$15,000.00 (fifteen thousand) per year plus five
(5%) per cent. of the gross profits earned in
our business which we agree shall be not less
than $5,000 00/100 per year-continues in force
until Jan. 1st, 1916.

"Johnson Cowdin & Co.
"John E. Cowdin.
"E. N. Herzog."

in Plant v. Bourne, supra. The memorandum which it requires, like any other memorandum, must be read in the light of reason. Id.

[2] In this case the plaintiff does not need the aid of one spoken word of promise to identify his place. His first contract was for two years, from January 1, 1911, to January 1, 1913. During that period, writings subscribed by the defendants attest the nature of his position. The memorandum exacted by the statute does not have to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject-matter and occasion. Ridgway v. Wharton, L. R. 6 H. L. C. 238; Cave v. Hastings, L. R. 7 Q. B. D. 125; Oliver v. Hunting, L. R. 44 Ch. D. 205; Bibb v. Allen, 149 U. S. 481, 496, 13 Sup. Ct. 950, 37 L. Ed. 819; Peck v. Vandemark, 99 N. Y. 29, 34, 1 N. E. 41; Coe v. Tough, 116 N. Y. 273, 22 N. E. 550; Levin v. Dietz, 106 App. Div. 208, 211, 94 N. Y. Supp. 419; Title G. & T. Co. v. Lippincott, 252 Pa. 112, 97 Atl. 201; Pollock, Contracts (8th Ed.) p. 171. It is not even necessary that they be writings from the promisor to the promisee. They may be from the promisor to his own agent. Gibson v. Holland, L. R. 1 C. P. 1; Townsend v. Hargraves, 118 Mass. 325, 335; Argus Co. v. Mayor, etc., of Albany, 55 N. Y. 495, 505, 14 Am. Rep. 296; Peabody v. Speyers, 56 N. Y. 230, 237; Browne, Statute of Frauds, § 354a.

7 Q. B. D. 125; Carr v. Lynch, 1900, 1 Ch. [ about the statute of frauds." Chitty, L. J., 613; Catling v. King, 5 Ch. D. 660; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Richards v. Edick, 17 Barb. 260, 269. It is not otherwise where A. agrees with B. that a position in A.'s service then held shall be continued. "I will keep you until January 1, 1916, at so much a year, in your present place." By necessary implication, by inevitable construction, that is what this memorandum says. It makes no difference whether the place is land to be occupied or a relation of employment to be filled. Whether it is the one or the other, we do not violate the statute when we fit the description to the facts. In thus identifying the position we are not importing into the contract a new element of promise. We are turning signs and symbols into their equivalent realities. This must always be done to some extent, no matter how many are the identifying tokens. "In every case, the words used must be translated into things and facts by parol evidence." Holmes, J., in Doherty v. Hill, su- | pra, 144 Mass. 468, 11 N. E. 583; Mead v. Parker, supra, 115 Mass. 415, 15 Am. Rep. 110; 4 Wigmore on Evidence, § 2454. How far the process may be extended is a question of degree. Doherty v. Hill, supra, 144 Mass. 469, 11 N. E. 581. We exclude the writing that refers us to spoken words of promise. We admit the one that bids us ascertain a place or a relation by comparison of the description with some "manifest, external, and continuing fact." Doherty v. Hill, | supra, 144 Mass. 469, 11 N. E. 584. The statute must not be pressed to the extreme of a literal and rigid logic. Some compromise is inevitable if words are to fulfill their function as symbols of things and of ideas. How many identifying tokens we are to exact, the reason and common sense of the situation must tell us. "What, then, is a sufficient description in writing? No one can say beforehand." Jessel, M. R., in Shadlow v. Cottrell, supra. "You cannot have a description in writing that will shut out all controversy, even with the help of a map." Id. "In every case it must be considered what is a sufficient description with reference to the sur-memorandum in writing that in December, rounding circumstances and the facts." Jessel, M. R., in Catlin v. King, supra, p. 664. Some description there must be. Its ade quacy depends upon the degree of certainty attained when the words are applied to things. From correspondence we infer identity. Beckwith v. Talbot, 95 U. S. 289, 292, 24 L. Ed. 496. A. has been employed by B. as a bookkeeper and accountant. He receives a writing to the effect that his employment, which is stated to have begun some years before, is continued, for a given term. We shall make a farce of the statute if we say that oral evidence is incompetent to show that A. is not expected to do the work of a porter. "There is no mystery

[3] Tested by these rules, the first contract is plainly valid. The second must be interpreted in the light of what had gone before. The circumstances are persuasive in their collective force. We see this when we put them together. There is a note or memorandum in writing that the plaintiff was employed in 1911 to act for two years as the defendants' sales manager. There is evidence, not contradicted, that for two years he did occupy that position. There is evidence, again uncontradicted, that after the expiration of his first contract, he occupied the same position. And there is a note or

1913, the position then filled was continued for a term of years. To give heed to these things is not to ignore the rule that the writing must contain all the material terms of the agreement. It is to explain the memorandum without changing or enlarging it. We think the process is one that is justified by precedent. Beckwith v. Talbot, 95 U. S. 289, 291, 292, 24 L. Ed. 496; Hagan v. Domestic Sewing Machine Co., 9 Hun, 73; Davis v. Dodge, 126 App. Div. 469, 476, 110 N. Y. Supp. 787; Carr v. Lynch, supra; Plant v. Bourne, supra; Title G. & T. Co. v. Lippincott, supra.

[4] The plaintiff, then, was employed as sales manager, or at least a jury might so

COLLIN,

POUND, CRANE, and ANDREWS, JJ., concur.

HISCOCK, C. J., and CUDDEBACK, J„ not voting.

Judgment reversed, etc.

BALTIMORE.

(226 N. Y. 171)

find. Finding that, they might also say that the defendants removed him from that position when they changed his powers and his duties. It is true that in the past he had visited the manufacturers and solicited their trade. But that had been a mere incident to the work of management and supervision. The defendants did not fail to appreciate the significance of the change. They told the plaintiff, if we may credit his testimony, that they were giving his position to another. He TUZZEO v. AMERICAN BONDING CO. OF had been sales manager before. He was to be sales manager no longer. We do not mean to say that he was at liberty to show, by evidence dehors the writing, that under his contract of employment special rights had become his by force of special promises. To do that would be to do more than identify a In any form of contract where the amount position with known and established attri- to be paid thereby is subject to computation butes. It would be to surround the position and the time of payment and the person or perwith peculiar privileges and exemptions. sons to whom payments are to be made are cerThe defendants were free to change the plain-tain and definite, interest is chargeable upon the tiff's duties at their pleasure as long as the position was unchanged in the things that determine its identity. Beyond that they could not go. It is no answer to say that, even then, the definition of the duties is left

open to extrinsic evidence. That would be just as true if the description of the position as that of "superintendent" or "manager" had been embodied in the writing. Hagan v. Domestic Sewing Machine Co., supra. There would still be lacking a catalogue of the things that a superintendent or a manager does. Yet it would hardly be contended by any one that such a writing would be inadequate: The difficulty, if there is any, is the usual one that we met in passing from the particular to the general. There are certain common properties that characterize a class

(Court of Appeals of New York. April 8, 1919.)

1. INTEREST
RECOVERED.

19(2)-INTEREST ON AMOUNT

amount found due thereon.

1

BONDS
2. BANKS AND BANKING 15
STATUTE-ACTIONS - PERSONS ENTITLED TO
INDEMNITY.

Under Code Civ. Proc. § 1915, and Laws 1907, c. 185, relating to giving of bonds by steamship ticket sellers receiving deposits, it is contemplated that in case of default a suit to recover on the bond may have to be instituted by or upon relation of the party or parties aggrieved.

3. BANKS AND BANKING 15 JUDGMENT AGAINST SURETY ON BOND-INTEREST-DEFAULT.

The default from which interest on a bond given under Laws 1907, c. 185, is to be computed as against the surety is surety's own default or failure to pay the amount when it should and could have been safely paid, and not the date of the default of the principal.

4. BANKS AND BANKING 15-BOND-SURETY'S LIABILITY.

and mark it off from others. These must remain constant, or class identity is lost. There are certain other qualities that characterize the individual. These may be changed, and Where surety on bond given under Laws a place within the class retained. The plain- 1907, c. 185, could not, upon principal's default, tiff makes no complaint of changes in those pay creditors the amount of the bond since the creditors and amounts due them could not be qualities that are merely accidental. He safely determined prior to suit, indemnitor does not complain that the defendants sub- could have deposited the amount due under the tracted one incident from his position, or add-bond with the court at the beginning of the ed another to it. He says that they changed action by creditors to collect, and indemnitor it altogether; they took the position from was chargeable with interest from the beginone man, and gave it to another. Whether ning of the action. that was in truth the effect of their conduct was a question for the jury.

[5] The Appellate Division dismissed the complaint, but also reversed upon the facts. A new trial is therefore necessary. Gressing v. Musical Instrument Sales Co., 222 N. Y. 215, 221, 118 N. E. 627; Maguire v. Barrett, 223 N. Y. 49, 56, 119 N. E. 79; Meisle v. N. Y. C. & H. R. R. R. Co., 219 N. Y. 317, 322, 114 N. E. 347, Ann. Cas. 1918E, 1081.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

Appeal from Supreme Court, Appellate D1vision, First Department.

Action by Guiseppe Tuzzeo, suing on behalf of himself and all other creditors of Pasquale Pati, etc., against the American Bonding Company of Baltimore. From a judgment of the Appellate Division (175 App. Div. 129, 161 N. Y. Supp. 905) modifying and as modified affirming a judgment entered on a report of a referee, the plaintiff appeals. Judgment modified as to interest and affirmed.

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