
    Gilbert Allen, Respondent, v. Glen Creamery Company, Appellant.
    
      Action for the 'br.each of a contract- of" employment distinguished from. an. action to-recover wages — burden of proof in the former case—.what complaint sufficiently alleges a cause of action for breach of contract of employments effect of a, demand if money due rather than wages. .. ' " ’ -
    An action to recover damages for a breach of a contract of employment, because ■ of the employee’s wrongful discharge before the expiration of the term of • employment, is entirely distinct from an action brought by the employee to-recover- wages. . 1 > • - •
    In the first mentioned form of action it-is.not necessary for the employee to aver and show affirmatively that he unsuccessfully sought other employment or'.that, he stood in readiness to perform after the contract had been terminated, but- • the burden rests upon the employer to show that other' employment. might, have been found or that it had been offered and declined. ,'
    The fact that the complaint in such an action demands money as due rather than by way óf damages, does- not necessarily render-it-defective. ■ -■- When a complaint, although drawn, by the pleader on the theory of an, action for wages, contains sufficient allegations to .warrant the court in construing it asoné to recover damages for breach of the contract of employment, considered.
    Appeal by the defendant, the Glen Creamery Company, from a, judgment of the Supreme. Court in favor of the- plaintiff; entered in,' the office of the clerk of. the county of Montgomery on. the 24th day of June, 190,4,. upon the verdict, of a jury, and also, from an order entered in.said clerk’s office on the l$th day of July, 1904, denying the defendant’s motion for a néw trial made upon the minutes.
    
      Robert J. Sanson, for the Appellant.
    
      Florence J. Sullivan, for the respondent.
   Houghton, J :

The trial court construed the. plaintiff’s complaint .'as one for damages for breach of contract of employment, and the recovery of plaintiff was had upon that theory,

While the complaint is quite inappropriate for an action of that character, and while the pleader evidently had in mind an action for "wages, yet there aré sufficient allegations to<warrant the court in construing tlie. complaint as one for breach of contract instead of one for wages alone. >

An action for damages for breach of contract because of wrongful discharge before the expiration of the term of employment is entirely distinct from an action for wages-. (Arnold v. Adams, 27 App. Div. 345.) In an action for damages for wrongful discharge it is not necessary for the plaintiff to aver and show affirmatively that he sought and could not obtain pther employment, or that he stood in readiness to perform after the contract had been terminated. (Howard v. Daly, 61 N. Y. 362; Merrill v. Blanchard, 7 App. Div. 167.) The burden rests upon the defendant to show that other employment might have been found, or that it had been offered and declined. _(Griffin v. Brooklyn Ball Club, 68 App. Div. 566.) And the fact that the complaint demands money as due rather than by way of damages, does not necessarily render it defective. (Williams v. Conners, 53 App. Div. 599.)

Judged by these rules the complaint contains sufficient allegations to warrant its interpretation as one for damages for breach of contract.

But the judgment must be reversed because the evidence was overwhelming that the discharge of plaintiff from the employment of the defendant was proper.

The jury were instructed that if the defendant was authorized because of the acts of the plaintiff in discharging him from its employment, the plaintiff had no cause of action and they must find a verdict for the defendant. In rendering a verdict for the plaintiff they, therefore, must have found that the discharge was wrongful.

The plaintiff was employed by the defendant at its skimming station where milk was delivered by its patrons for the separation of the cream which was taken from the station to defendant’s butter factory and there made into butter. It was the plaintiff’s duty to receive the milk, separate the cream, and deliver all of the latter while sweet to the but-, ter factory. During the second month of the-plaintiff’s employment, officers of the defendant discovered quantities of cream, varying from three quarts to twenty quarts and over, in a sour condition, standing in cans at the skimming station, undelivered to the butter factory. These occurrences were testified to by defendant’s witnesses Eugene Shelp, Merry, Faulknor, Aschebar and, Rulison, and they are practically undenied by the plaintiff and his witnesses, except as the plaintiff says that if such quantities of cream were there in such condition he did not know it.. The plaintiff was accused by officers of the defendant with appropriating cream to his own Use, and this •he denied.

So far as the defendant being justified in discharging the plaintiff is concerned, it had as much right to discharge him for neglect of his duty in failing to know that cream was standing about the factory station souring, or failing to send it to the butter factory while in a sweet condition, as to discharge him for converting cream to his own use. The plaintiff well understood that it was his duty to send all of the cream separated, as soon as the process of separation was complete, to the butter factory before it had soured. Waiving the questions- of his unauthorized use of ice and. skimmed milk and conversion of cream, his failure to do this was sufficient ground to justify his discharge. That he failed- to perform his duty in this regard was practically undisputed, and the verdict of the jury was against the clear weight of evidence. The trial court should have set aside the verdict and granted a new trial, and his refusal to do so was error.

The judgment and order must be reversed and a new trial granted, with costs to the appellant to abide the event. ' .

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  