
    HERMAN FUCHS, Respondent, v. THEODORE E. KOERNER, Appellant.
    
      Master and servant.—Employee discharged without cause—duty as to accepting other employment.
    
    An employee discharged without cause is only bound to accept suitable employment similar in kind.
    Accordingly held, that an employment to sell fancy boxes on commission, is not similar in kind to an employment in the business of manufacturing essential oils and essences at a fixed salary.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.
    
      Decided April 13, 1885.
    Appeal from a judgment for §871.72 in favor of the plaintiff, for "damages and costs, entered on verdict of a jury.
    The facts sufficiently appear in the opinion.
    
      John D. Ahrens, attorney, and of counsel for appellant.
    
      Simonson & Meyer, attorneys, and of counsel for respondent.
   By the Court.—O’Gorman, J.

The plaintiff brought action against the defendant for breach of contract to hire the plaintiff, up to February 6, 1885, at a yearly salary of §1,800, payable weekly, in the business of manufacturing essential oils and essences. Plaintiff was discharged, without sufficient cause, on June 6, 1884, and sued for damages. The amount of wages he would have earned up to February 6, 1885, was $787.50.

Plaintiff, however, was bound to take other suitable employment, if he could get it; and it was in evidence that he was offered by the defendant, an employment, to sell fancy boxes for one Loder, on a commission of ten per cent, on the sales. This employment he refused.

The learned trial judge refused the request of defendant’s counsel, to charge the jury that they should deduct from the said amount which plaintiff ■ would be entitled to as damages, the amount he might have earned, and defendant also excepted to the charge that the plaintiff was bound to seek only employment of the same kind, and was not bound to accept the terms offered him by the defendant.

There was no error in these rulings. The plaintiff, in cases such as that at bar, is bound to reduce the damage by accepting, and holding himself ready to accept suitable employment, similar in kind to that in which he contracted to give his services to defendant. He is not bound to take any other and different employment which he maybe offered (Howard v. Daly, 61 N. Y. 369 ; Costigan v. Mohawk, &c. R. R., 2 Den. 609 ; Shannon v. Comstock, 21 Wend. 457).

The judgment must be affirmed, with costs.

Sedgwick, Oh. J., and Ingraham, J., concurred.  