When this case was on appeal to the Court of Appeals (214 N. Y. 279) it was from a judgment of this court entered upon an order which modified an order of the court at Trial Term, setting aside a verdict in favor of the plaintiff and granting a new trial by directing a dismissal of the complaint. Judge Miller, writing for the majority of the court, said: “ A jury could have found from the adoption of the resolution asking for authority and from their silent acquiescence that the executive committee approved of the proposal to pay the plaintiff 5% of the net profits to induce him to remain in the defendants’ employ, and that upon the approval of the resolution by the board of directors, the parties understood that the plaintiff was to remain upon the terms proposed. A.meeting of the minds may be inferred from acts as well as words, and we are of the opinion that a jury could have found from the whole transaction that the minds of the parties, the plaintiff and the executive committee, met upon the proposition to pay the plaintiff for future services in addition to his regular salary 5% of the net profits of the business and that on that understanding the plaintiff continued in the service of the defendant. If an officer or employee of a corporation is called before its board of directors or a duly authorized committee and informed by one of their number that they have decided to make a stated increase in his salary to induce him to continue in the service of the corporation and he assents to the proposition and acts upon it, it is not essential that the agreement be reduced to writing *680or embodied in a formal resolution.” And the judgment was reversed. Judge Chase, with whom Judge Seabury concurred, dissented and after reviewing the evidence stated: “ There is, therefore, it seems to me, no evidence whatever to warrant a jury in finding that the defendant through its executive committee entered into a contract binding upon the defendant to pay the plaintiff 5% of its net profits until such time as the executive committee saw fit to put an end to such an agreement. If, as appears, it was the intention of the committee to obtain authority to add to the plaintiff’s salary from time to time an amount based upon a percentage of its net profits it may be assumed that it accomplished its purpose, but they did not subsequently act upon it except in the payment of a percentage of the profits for six months, and then again for one year, and in each case it deliberately confined the payment to an honorarium, and thereby, as it seems to me, intentionally refrained from ratifying a. past contract with an individual member of the committee or of making a new contract binding upon the defendant.”
In the face of this strong dissent by two members of the court taken in connection with the language of the prevailing opinion it is evident that the Court of Appeals had clearly before it the precise fundamental question which is the basis of the plaintiff’s cause of action, and that is whether upon the facts a jury would be authorized to find that a continuing contract had been entered into between the plaintiff and the .trust company until such time as the executive committee saw fit to put an end to such agreement. It seems to me, in view of the deliberate determination of the Court of Appeals, this court is not warranted, a jury upon a new trial-having again found in favor of the plaintiff, in reversing the judgment entered thereon and dismissing the complaint. As I understand it the complaint can only be dismissed when there is no evidence in support thereof. Upon the former appeal two of the judges of the Court of Appeals said that there was no evidence whatever to warrant the jury in finding that the contract had been made, but five judges of the court differed with them and said that a jury could have found from the whole transaction that the minds of the parties, the plaintiff and the executive committee, met upon the *681proposition to pay the plaintiff for future services in addition to his regular salary five per cent of the net profits of the business and that on that understanding the plaintiff continued in the service of the defendant.
In view of the decision by the Court of Appeals I am unable to concur in the reversal of this judgment and the dismissal of the complaint. I, therefore, vote to affirm the judgment appealed from, with costs and disbursements to the respondent.
Smith and Davis, JJ., concurred; Scott, J., dissented.