
    SILBERT v. KATZ.
    (Supreme Court, Appellate Term, First Department.
    February 4, 1915.)
    Master and Servant (§ 65) — Breach of Contract by Servant — Damases.
    Where plaintiff, employed as foreman for defendant, refused to render services under his contract, defendant, unable to obtain another foreman, except on payment of higher wages, could recover the damages sustained.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. § 73; Dec. Dig. § 65.*]
    Appeal from Municipal Court, Borough of Manhattan, Sixth District.
    Action by Meyer Silbert against Philip Katz. From a judgment for plaintiff, defendant appeals.
    Reversed, and new trial granted.
    Argued January term, 1915, before GUY, BIJUR, and GAVE-GAN, JJ.
    Aaron A. Feinberg, of New York City (Abraham Aronstein, of New York City, of counsel), for appellant.
    Otto A. Samuels, of New York City, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1807 to date, & Rep'r Indexes
    
   BIJUR, J.

Plaintiff made a contract to work as foreman for defendant, and deposited $100 with defendant as security for faithful performance of the contract. Although the deposit is described as “liquidated damages,” the question whether it is to be treated as such or as a penalty does not arise. It is shown, without contradiction, that plaintiff refused to perform his contract by failing even to begin to render services thereunder. Thereupon the defendant employed another man in his place. Although the subject was not amplified nor thoroughly developed, the defendant gave some evidence, from which it appeared that he had made efforts to replace the plaintiff for the same wage, but was unable to obtain another foreman for less than $55 a week.

Upon the record, defendant’s counterclaim for damages was proved, and he should have had judgment therefor.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.  