Judgment and order reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event. Memorandum: Although, by the allegations of his complaint and his proof, plaintiff sought to recover on an entire contract for the year 1941, renewed by implication for the year 1942, the trial court construed the agreement as an indefinite hiring terminable at will and so submitted- the cause to the jury. To this course neither party objected. We do not construe the defendant’s exception to the court’s statement that the contract was a continuing one, as intended to raise any objection on its part to the court’s construction of the agreement as one for an indefinite hiring. We believe the finding that the contract, was not terminated November 10, 1941, was against the weight of evidence. We are also of the opinion that the court should have charged, in reference to what would constitute a termination, as requested by the defendant. All concur. (The judgment is for plaintiff in an action for salary due under contract. The order denies a motion for a new trial.) Present — Taylor, P. J., Dowling, Harris, McCurn and Larkin, JJ.