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Cohen v. Refrigerating

Decided: January 22, 1943.

FREDERICK COHEN, PLAINTIFF-APPELLANT,
v.
CAMDEN REFRIGERATING AND TERMINALS CO., DEFENDANT-RESPONDENT



On appeal from the Supreme Court.

For the plaintiff-appellant, Samuel P. Orlando.

For the defendant-respondent, Norcross & Farr (Thomas M. Farr, of counsel).

Brogan

The opinion of the court was delivered by

BROGAN, CHIEF JUSTICE. The plaintiff has appealed from a judgment in favor of the defendant directed by the trial court. The plaintiff's amended reply to the first separate defense was struck out; the first separate defense was considered by the learned trial judge a complete defense as a matter of law to the cause of action outlined in the complaint, and the defendant therefore had judgment on the pleadings.

The case involves a suit for salary. Plaintiff, Frederick Cohen, on March 20th, 1939, was employed by the defendant corporation for one year as general manager of its plant located in Camden at a salary of $10,000. On March 20th, 1940, the plaintiff avers, his contract of employment was

renewed for a year at the same salary. The contract was not in writing. On November 27th, 1940, before the expiration of the year for which he was hired, plaintiff was discharged by the defendant without cause and sought damages for breach of the contract.

Defendant in its answer admitted that on March 20th, 1939, the plaintiff was elected vice-president of the company to serve for one year; admitted hiring the plaintiff as general manager of the company at the salary stated; admitted that on March 20th, 1940, plaintiff was re-elected to the office of vice-president but denies that he was continued as general manager for the ensuing year; and admits the plaintiff's dismissal "as vice-president or acting general manager" by resolution of the defendant's board of directors.

In the first separate defense it is averred that the dismissal was authorized by the company's by-laws and article XVI thereof is set out which provides as follows: "The Board of Directors may remove any officer, agent or employee at any time and within the period for which such person was elected and employed and all persons shall be elected and employed subject to the provisions hereof." It is further said that the plaintiff's tenure was subject to the provisions of the corporation's said by-law and "no contract of employment was made by it with the plaintiff except subject to such provision * * *;" and that the by-law in question was assented to by the plaintiff. A second separate defense was pleaded which does not concern us now.

The plaintiff replied, denying knowledge of the provisions of the by-laws or assent to the passage or adoption thereof; further, that prior to his employment as general manager, or since, the by-laws were never brought to his attention; that he first learned of this particular by-law when his attention was called to it by his counsel when the defendant's answer was filed; that the minute book (containing the by-laws) was neither in his possession nor accessible to him and that he had no opportunity to read or learn the contents of the by-laws. Then followed a motion to strike out the reply as insufficient in law on the ground that the plaintiff is presumed

to have knowledge of the by-law provisions and that the quoted section is a complete bar ...


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