
    Elizabeth Levin, Pl’ff, v. The Standard Fashion Company, Def’t.
    
      (New York Common Pleas,
    
    
      General Term,
    
    
      Filed December 1, 1890.)
    
    1. Bab—Former recovery.
    A recovery of an instalment of the stipulated salary due by the terms of a contract is not a bar to an action for general damages for breach of the contract.
    
      3. Same.
    The former action was brought on the contract for wages and the value of the services was not litigated, but the evidence was conflicting as to> whether plaintiff abandoned the work. The justice gave judgment for plaintiff for a week’s wages. Held, that the judgment so rendered was a conclusive determination that the action was for a,n instalment of wages and that the same had been earned, and that such judgment was not a bar to an action for breach of the contract of employment.
    3. Master and servant—Breach of contract—Offer of re-employment.
    After a wrongful dismissal of an employe the employer may reduce the damage to the servant by an offer of re-employment; but the servant is not bouM to accept such offer from a person to whom there is a reasonable ground of objection.
    4. Same.
    The servant, by stating one ground for rejecting the offer of re-employment, is not precluded from showing on the trial another valid reason for refusing the offer.
    Appeal from judgment of the general term of the city court of New York, affirming judgment in favor of plaintiff.
    
      0. Shenstone, for app’lt; Theo. N. Melvin, for resp’t.
   Pryor, J.

Both plaintiff and defendant appeal from a judgment of the general term of the city court, affirming a judgment on a verdict and orders denying a new trial as moved by each party. The action is for damages from breach of a contract of employment. The contract is conceded; and on this appeal tire verdict of the jury in favor of plaintiff is conclusive of the breach by defendant. Arnstein v. JETaulenbeeJc, decided this term, ante, 297. As to defendant’s appeal, the facts essentially bearing on the question for decision are: That defendant hired plaintiff for a year at a salary payable weekly; that she was duly paid except for the week she was discharged; that on Friday, the day before the expiration of the week, she had an altercation with defendant’s president, during which he assumed that she resigned her employment, but which assumption she then explicitly and persistently controverted; that the next day, Saturday, she went to the office of defendant, and said to the president: “ I come to do my work; I am ready to do my work; ” to which he replied that “ he wanted nothing whatever to do with me; ” that she continued to go to the office for several mornings with offers to resume work, but he answered her as on Saturday, that “ he wanted nothing to do with her.”

The contention on the trial was whether plaintiff liad resigned or had been discharged; but in this court the verdict for plaintiff concludes the question in hdr favor. Both by plea and proof, the defendant interposed the defense of former recovery, and the question is, was the defense sustained? The plaintiff had recovered a judgment against defendant in a district court, and the precise point in controversy is whether that judgment was for wages due by the contract of hiring, or for a quantum meruit, or damages for breach of contract ? For, if the recovery in the district court is for an instalment of the stipulated salary due by the terms of the contract, it is no bar to this action for general damages for breach of the'contract. Perry v. Dickerson, 85 N. Y., 345.

On the other hand, if the recovery in the district court were upon a quantum meruit for the value of services rendered, or for damages for breach of contract, then the judgment in that court operates as an estoppel in this action. Moody v. Leverich, 4 Daly, 401, 408. Flow, to ascertain what was determined in a former action, “it is proper to look beyond what appears on the face of the judgment to every allegation which, having been made on one side and denied on the other, was at issue and determined in the course of the proceedings.” Griffin v. R. R. Co., 102 N. Y., 452 ; 2 N. Y. State Rep., 454; Bell v. Merrifield, 109 N. Y., 202 ; 14 N. Y. State Rep., 796.

Adverting to the pleadings and evidence in the district court, we see that the action was on the contract (contract admitted in evidence); that the value of the services was not litigated; that plaintiffs claim was “ for wages ” eo nomine, and not for damages for the wrongful discharge, and that her recovery was of the twenty-five dollars stipulated to be paid for one week’s services. That the action was tried as involving a claim for “ wages ” due and payable is conclusively evident by the express admission of defendant of “ an indebtedness of twenty dollars due plaintiff,” and by the payment of that sum into court Plaintiff declined to accept the sum offered, claiming an indebtedness of twenty-five dollars for an entire week’s service. Upon this claim the litigation proceeded, the defendant contending that plaintiff abandoned work on the afternoon of Friday, December 9th, and plaintiff contending that she rendered service every day of the week (including Saturday, December 10th), for-which she claimed compensation. Upon this conflict of evidence, the justice gave judgment for plaintiff' for twenty-five dollars, a week’s wages, and I hold that the judgment so rendered is a conclusive determination that the action was for an instalment of salary, and that the wages had been earned by a due rendition of service. The uncontradicted evidence is that she was at her place of business on every day of the week (including Saturday) for which she claimed the salary; and if defendant forbade her the work on Saturday, that would not defeat her recovery of the week’s wages. Vail v. The Company, 32 Barb., 564, 567. The case is distinguishable from Moody v. Leverich, supra, in the essential circumstance that there the judgment in the former action could have been had only on-the ground of a recovery for damages, since upon the conceded facts the plaintiff had not worked for the period requisite to entitle him to an instalment of salary, whereas here the plaintiff rendered full service on every day of the week except Saturday, and on that day she repaired to her place of business and tendered her services. It was work for her to go to defendant’s office, her place of business, and the defendant could not defeat her recovery for a week’s wages by refusing her services for a part of the day. The law takes no account of fractions of a day. At all events, upon this point, namely, that plaintiff had earned the week’s salary, the judgment of the district court is res adjudicaba; and is not here open to contradiction. Blair v. Bartlett, 75 N. Y., 150 ; Smith v. Hemstreet, 54 N. Y., 644.

Furthermore, the judgment in the district court, introduced by the defendant, is conclusive evidence in this-action that the plaintiff-had not been discharged on the 9th of December; for, had she then been discharged, she could not have recovered for wages for the week ending on the 10th of December. Moody v. Leverich, supra; Howard v. Daly, 61 N. Y., 362. “Whatever was requisite to be proved and established as facts by plaintiff in order to obtain judgment is, so long as the judgment remains unreversed, res adjudicata between the parties, and conclusive upon them."’ Blair v. Bartlett, 75 N. Y., 150.

The verdict of the jury in' the plaintiff’s favor determines that she has the right and justice of the case; and if she is defeated of her dues by a technical defense, that defense must be clearly established. “ The burden of proof is upon the party claiming an estoppel by a former judgment to show clearly that the fact in issue was determined in the former action.” Zoeller v. Riley, 100 N. Y., 102. It is not apparent that in the action in the district court plaintiff recovered anything upon a quantum meruit or on account of damages for breach of contract; and, accordingly, the defense of res adjudicata fails.

As to plaintiff’s appeal, there must be another trial of the ac-' tian, because of error in the judge’s charge. It was in evidence that after the dismissal of plaintiff, an offer was made to take her back in the service of defendant upon the conditions of the original contract, except that the term of service was to be from the date of the offer, January 13, 1888, instead of from the time of her dismissal, the 9th or 10th .of December, 1887 (upon the evi-' dence it was questionable on which of these days her dismissal definitely took effect).

This offer the plaintiff rejected, on the sole ground that the proffered employment “ from to-day on ” was not in accordance with the original contract, which was an agreement on the same terms from the 27th of June, 1887, to the 27th of June, 1888. It is unquestionable law, that a servant wrongfully discharged must make reasonable endeavor to obtain other employment, and that in an action for his wrongful discharge his damages are to be reduced by the sum that he has earned in other employment, or that he might have earned by reasonable effort Polk v. Daly, 4 Daly, 411. But, the discharged servant is under no obligation to accept an employment of a different nature from that’ for which he contracted, or in a different locality from that in which he contracted to work, nor to accept employment from a person to whom there is reasonable ground of objection. 8 Wait’s Actions & Defences, 301; Strauss v. Meertief, 64 Ala., 299.

Now, it was in evidence that defendant’s superintendent (i. e., the defendant corporation itself), had treated plaintiff in the most brutal manner; had called her a thief; had accused her of lying; and shaken his fist at her; had used violent language to her; had laughed and jeered at her; had put her out of the office, and had a policeman to stand guard over her.

After the wrongful dismissal of an employe, the employer has a locuspceniteniiai, and may reduce the damage to his servant by an offer of re-employment. Bigelow v. The Company, 39 Hun, 599; Ingraham, J., in Thompson v. Wood, 1 Hilt, 96; Robinson, J., in Polk v. Daly, 4 Daly, 415. But, such offer is ineffectual to reduce damage unless the discharged servant be bound to accept it; and such offer the discharged servant is not bound to accept from a person to whom there is a reasonable ground of objection. Strauss v. Meertief, 64 Ala., 299; 8 Wait’s Actions & Defences, 301.

And surely it is unnecessary to argue the proposition that after the cruel treatment of plaintiff by defendant’s superintendent she was under no obligation to resume work and habitual association with a person of such morals and such manners. Upon the evidence, therefore, the jury might have found that the superintendent’s misbehavior to plaintiff disentitled defendant to reclaim her services; and so that her rejection of its offer was inoperative to reduce the amount of her recovery. But, by the peremptory rulings of the court, the jury were not allowed to say whether defendant’s conduct towards plaintiff justified her rejection of its offer; and upon the assumption that she was bound to accept the offer, the amount of her recovery was diminished by the sum she would have earned if she had accepted the offer.

By its seventh instruction the court charged the jury that plaintiff was bound to accept such re employment and thus keep down the damages for the breach; ” by its eighth instruction that “ plaintiff by stating the ground upon which she refused to render her services to defendant, waived all other ground,” and finally the court charged that “ all plaintiff can recover is $150.43 ; ” whereas had she not been charged with what she would have earned by acceptance of the offer the amount of her recovery would have been $468.33.

Plaintiff duly excepted to these rulings; and whether they be correct or not depends upon the question whether by stating one one ground for rejecting defendant’s offer of re-employment, she was' precluded from showing at the trial another valid reason for refusing the offer. I am aware of no authority for the ruling of the court below; while Strauss v. Meertief, 64 Ala., 299, 302, 309, is a distinct and decisive authority to the contrary.

The judgment must be reversed, and a new trial ordered, costs to abide the event.

Daly, Oh. J. and Bischoff, J., concur.  