Plaintiff, a chauffeur formerly employed by defendant corporation, sues for breach of contract of employment. *522He claims the right to recover damages because of his discharge on May. 3, 1940, contending that he had a binding contract which continued his employment to December 13, 1941.
Plaintiff concedes that no contract was entered into directly between himself and the defendant, but asserts that his rights arise under an agreement made between a labor union, of which he is a member, and the defendant. This agreement is in writing and contains terms usually found in a collective bargaining agreement. It states that the parties making the contract are the “ employer ” (the defendant) and the “ union ” (The Drivers & Chauffeurs Local Union No. 816). It recites the nature of the employer’s business, and states that, for the purpose of insuring a satisfactory agreement with those employees who are engaged in the distribution of its products, it will employ only chauffeurs and helpers who are members of the contracting union. All employees so hired by defendant are required to make application for membership in the union, and, if rejected for membership, the employer agrees to discharge such employees immediately. The contract then proceeds to set forth numerous terms with relation to wages, hours and conditions of employment. It then recites as follows:
“ 6. Discharge — The employer will not discharge any of its employees within the classes provided for herein for union activities.
“ In discharging, for economic reasons, the employer will abide by and follow seniority.
“ The employer agrees not to discharge any regular employee provided for herein, except for cause, upon one week’s notice, except in the case of dishonesty where no notice shall be required. The employees, desiring to terminate their employment with the employer, shall give one week’s notice to the employer of their intention so to do.”
Lastly, the contract fixes the duration thereof in the following language: “ This agreement shall take effect on December 14, 1939 and continue and be binding upon the parties hereto until December 13, 1941.”
At Special Term, and on this appeal, plaintiff’s contentions were two-fold: first, he claimed that the union acted as his agent in making the written contract, and, second, he claimed that by hiring plaintiff defendant adopted stipulations contained in the agreement between itself and the union as the terms of a separate contract between plaintiff and defendant.
It is plain that neither of these propositions is legally correct. On its face, the contract shows that it was not one made by the labor union as agent for the plaintiff, but one made by it as principal *523for the purpose of creating rights in the union as a separate legal entity.
Plaintiff’s contention of a contract by adoption is equally untenable. In any event, such a contract would run counter to the provisions of the Statute of Frauds.
It is now suggested that what plaintiff is really trying to claim is that he has the right to enforce the agreement between the union and the defendant as a third party beneficiary; that as a regularly employed chauffeur the contract between the employer and the union created for plaintiff’s benefit a hiring until December, 1941.
Assuming that plaintiff might have some enforcible rights as third party beneficiary under this contract, as we construe the agreement it appears clear that these rights do not include the right of continuous employment for the balance of the collective bargaining period. The two-year period fixed in the contract did not purport to fix the term during which member employees were to remain in the service of the defendant. It related solely to the period during which the collective bargaining agreement would be enforcible. The clause that the employer was hot to discharge any regular employee, except for cause, must be read in connection with the whole of the agreement. So read, we think that it was inserted to insure the retention of union men, and not to provide any fixed period of continuous employment for individual employees. The provision that employees who were rejected for membership in the union were to be discharged immediately, demonstrates this.
By way of illustration, we may point out that subject to the 'provision as to notice, the employer would undoubtedly have the right to hire three chauffeurs one week, increase the number to ten the second week, and to reduce it again to three the third week, if business conditions warranted hiring them in such numbers. If plaintiff’s contentions are correct, the ten men hired the second week would have contracts of employment for the balance of the two-year period; and to defeat an action for breach of contract by any of them, the burden would be on the employer to show that in cutting down his force a discharge was justified by “ economic reasons.” We do not construe the provision of the collective bargaining agreement to effect any such contract- rights in the individuals employed. Therefore, even if plaintiff may proceed as a third party beneficiary, he does not have the cause of action which he asserts.
The judgment and order should be affirmed, with costs.
*524Martin, P. J., Glennon and Dore, JJ., concur; Untermyer, J., dissents and votes to reverse and deny the motion.