
    Abraham Sommer, Respondent, v. Abraham Conhaim et al., Appellants.
    (Supreme Court, Appellate Term,
    November, 1898.)
    Services — Measure of damages for wrongful discharge where term of service is unexpired.
    Where the contract period of employment has not expired at the time of the trial of an action for a wrongful discharge, the plaintiff can only recover such damages as he had suffered up to the time of the trial, less whatever he may have earned after discharge and subject to any diminution resulting from his neglect to seek other employment, a neglect which, however, it is for the master to show.
    Appeal from a judgment in favor of the plaintiff rendered in the Municipal Court of the city of ¡New York, borough of Manhattan, fourth district.
    George Ryall, for appellants.
    Charles C. Levenson, for respondent.
   Beekman, P. J.

This action was brought by the plaintiff for his alleged wrongful discharge by the defendants in whose employ he claims he was under a contract of hiring for a year at a stated compensation of $15 a week. The trial was had below, before the-justice and a jury, the principal question in issue being whether the-employment was for a year, as claimed by the plaintiff, or only fiom week to week, as the defendants contended. The jury found a verdict in favor of the plaintiff, thus sustaining his version of the-contract. We think that there was sufficient evidence in the case, if credited, to support the verdict, and the jury, whose function it was to determine the question of credibility, having decided it in favor of the plaintiff, their verdict upon the facts should not be disturbed.

The only question, then, which we consider is open for our determination is one of law which was raised by an exception to the-judge’s charge. The facts, as we must deem them to have been established by the determination of the jury, show that the plaintiff was employed for a yearly service beginning February 26,. 1898; that he entered upon the performance of such service, and was wrongfully discharged on April 30, 1898. This action was brought on the 17th day of June, 1898, and the trial was had on the 13th day of July, 1898. The court instructed the jury that if they found that there was a yearly hiring, they must give the plaintiff a verdict for $500 damages. The amount thus specified seems to have been based upon the plaintiff’s bill of particulars, in which he estimated his damage at $15 a week for the contract period, which was unexpired at the time of his discharge, amounting to the sum of $645, upon which he allowed to the defendants a deduction of $145, stated to be for “ probable employment to the end of the contract term,” leaving a balance *of $500 for which suit was brought. It is quite evident that the deduction thus made was resorted to rather for the purpose of enabling the plaintiff to sue in the Municipal Court, whose jurisdiction is measured by the exact amount sued for, than upon any reasonable estimate of what the facts, of the case probably required.

There was no agreement or assent on the part of the counsel for the defendants to the amount of damages which the court thus Undertook to liquidate. The damages were unliquidated, and the court should have left it to the jury, under proper instructions, to determine how much the plaintiff was entitled to. Instead of so doing, he seems to have taken it entirely from their consideration. The measure of damage in such a case as this, where the suit is brought and the trial is had before the expiration of the time fixed in the contract for the duration of the service, seems to be the actual damage which the plaintiff is able to< show he has suffered down to the time of the trial. Everson v. Powers, 89 N. Y. 527; Bassett v. French, 10 Misc. Rep. 672. The latter case, in which Mr. Justice Pryor delivered the opinion, is particularly in point. It is well settled that if at that time the period of the contract has expired, although the action was actually corfnnenced before, the measure of damage then would be the stipulated amount of wages for the entire period succeeding the breach, subject to such reduction as it might appear from the evidence the defendants were entitled to either on account of money actually earned by the plaintiff during the period in another service or which he would have earned had he sought other employment.

The reason for the rule is not that the plaintiff is entitled to additional or other damages than those which he had suffered at the time when the action was brought, but that by reason of the lapse of time, the amount of his damages, which otherwise would have been problematical and uncertain, have become fixed and definite. The logic of the decisions on this point would seem to compel the conclusion that where the period fixed for the service has not expired at the time of the trial, the contract price to that date only expresses the maximum limit of plaintiff’s recovery in an action for a wrongful discharge.

Taking this, then, as the proper rule, and applying it to the case at bar, the measure of damage was the amount of the qontract price up to the time of the trial, subject to such diminution as the jury might find should be allowed by reason of the neglect of the plaintiff to obtain other employment, if, in their judgment, the evidence warranted the conclusion that he had failed in his duty in that regard. The burden, however, of showing such neglect rests upon the defendants. Howard v. Daly, 61 N. Y. 362; Crawford v. Mail & Express Pub. Co., 22 App. Div. 54.

We think it is quite clear that the exception to the portion of the charge referred to was well taken, and that the judgment should, therefore, be reversed.

Judgment reversed and a new trial ordered, with costs to the appellants to abide the event.

Gtildbbslbbvb and G-ibobbioh, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  