We think that the court did not err in refusing permission to defendants to testify that Spiro’s services were unsatisfactory. The fact that they withheld the bonus, or pre*126mium, upon good service, to the extent of withstanding suit to recover the same, was quite sufficient to show the operation of defendants’ minds; and it would he idle now to say that they are-dissatisfied, or were so when plaintiff’s year of service had' expired. Whether or not there was unfaithfulness oh plaintiff’s part, and whether the masters were or were not willing to overlook alleged breaches of duty in the servant (Gray v. Shepard, 147 N. Y. 177) seem to have been questions answered by the jury against the defendants in finding that if so committed they were overlooked.
The parties to the contract said if the services during the agreement “ are satisfactory ” the employee should receive a bonus, reserving the right to discharge him at any time when the defendants thought the services “ not up to our expectations ”. Discharge was not made, so that, inferentiallv, the services were, during the agreement, satisfactory. Conversely, the defendants thought the services were up to their expectations, whether satisfactory or not. They might have expected plaintiff to turn out to be but an indifferent workman, and yet, having the right of discharge, at any time, reserved, were quite willing to give him a trial. Since the defendants did not exercise this right of discharge and terminate the employment, can they now arbitrarily say that they are not satisfied because the services did not come up to their expectations, and defeat a claim that the jury have found, as a fact, to be just and well founded?
We discover no error in the charge delivered by the court below.
Judgment and order should be affirmed, with costs.
Fitzsimons, Ch. J., and O’Dwyer, J., concur.
Judgment and order affirmed, with costs.