
    Chris H. Livingston, Appellant, v. Marc Klaw and Abraham L. Erlanger, Respondents.
    First Department,
    April 8, 1910.
    Master and servant--breach of contract of employment—judgment for partial breach — action on subsequent breach not barred.
    On the total breach of a contract of employment by a wrongful discharge, but a single cause of action arises
    Where there has been a partial breach of a contract of employment by a failure to accept the services of the employee for a certain portion of the term, a recovery by the employee for such partial breach does not bar an action for a total breach subsequently occurring.
    An employee may terminate the contract on a partial breach thereof, but if he continues in the employment he waives the partial breach.
    Appeal by the plaintiff, Chris H. Livingston, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dew York on the 3d day of April, 1909, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 16th day of April, 1909, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      M. Strassman \_I Henry Harris, of counsel], for the appellant.
    
      Maurice Goodman,. for the respondents.
   Miller, J.:

The defendants, theatrical mapagers, employed the plaintiff as a vaudeville performer for the term of twenty consecutive weeks, to commence December 2, 1907, at a salary of $225 per week, payable weekly. This action was brought to recover damages for a wrongful discharge. The defendants pleaded a former judgment in bar. The facts are not disputed.

The defendants failed to provide an engagement for the plaintiff for the weeks commencing January 6, 1908, and January 20, 1908, respectively. They did provide engagements for the weeks commencing January 13,1908, and ¡January 27, 1908, respectively, and accepted his services for those weeks. On February 1, 1908, the plaintiff brought an action in the Municipal Court, wherein the jiidgment relied upon as a bar to this action was rendered. The complaint in that action averred with respect to said two weeks, commencing January 6 and January 20, 1908, respectively, that the defendants failed and neglected to furnish the plaintiff with time and place for his act and declined and refused to accept his services, which were tendered, to his damage in the sum of $450, and he recovered a judg-’ ment for that amount, with costs.' The complaint in this action, phrased much like the complaint in the Municipal Court action, alleges a neglect,' failure and refusal to employ the' plaintiff after February 3, 1908.

It may be assumed that for a, total breach of a contract of employment, i. e., a wrongful discharge from employment, but a single action may be maintained. But no case has been cited holding that a recovery for a partial breach of a contract bars an action for a total breach subsequently occurring; and it may safely be affirmed that there is no authority for such a proposition. Upon the conceded facts in this action the defendants failed to give the plaintiff employment during two weeks of the term. , They did furnish him employment during an intervening and a succeeding week. The failure to give employment during the said two weeks was, therefore, a partial breach only. Ho doubt the plaintiff could at his election have terminated the contract upon the first partial breach thereof, but he was not bound to do so, and by thereafter continuing in the defendants’ employ under the contract'he waived, the right to do so. The plaintiff’s cause of action, then, for said two partial breaches was independent of his cause of action for the subsequent total breach of the contract. Indeed the action for the. two partial breaches was begiin when he was still rendering- services pursuant to the contract. Hone of the cases relied upon by the respondents have any application to the facts disclosed in this case. So far frqm the Municipal Oourt judgment being a bar to the present action, the plaintiff might well have relied upon it as an estoppel.

The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.

Ingbaham, P. J., Laughlin, Clabke and Scott, JJ., concurred.

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