
    (68 Hun, 170.)
    DE LORAZ v. McDOWELL.
    (Supreme Court, General Term, First Department.
    March 17, 1893.)
    Master and Servant—Action for Wages.
    Plaintiff was engaged by defendant in London, in August, 1800, to perform in the United States, in the play of “Cleopatra,” for a season of 28 weeks, commencing in the following October. Later in the same month she was discharged, but defendant agreed to employ her in other plays during her theatrical season, at the same price. To this plaintiff agreed if the engagement should be made for the agreed period of 28 weeks, but defendant refused to bind herself for a longer time than her season might last. Sold, that defendant’s subsequent offer was no defense to plaintiff’s cause of action on the broken contract, though, if defendant had asked to go to the jury on the question of damages, the subsequent offer might have been urged in mitigation thereof.
    Appeal from circuit court, New York county.
    Action by Etoile de Loraz against Fanny Davenport McDoweE to recover damages for breach of a contract of employment. From a judgment in favor of plaintiff, entered on a verdict directed by the court, and from an order denying her motion for a new trial, defendant appeals.
    Affirmed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
    Dittenhoefer & Gerber, (I. M. & A. J. Dittenhoefer, of counsel,) for appellant.
    George M. Pinney, Jr., for respondent.
   O’BRIEN, J.

This action was brought to recover damages for breach of a contract of employment. Plaintiff was engaged by the defendant in London, in August, 1890, to perform in the United States the part of “Iras” in the play of “Cleopatra,” for a season of 28 weeks, commencing October 21, 1890. She was discharged on the 18th of August, whereupon this action followed, claim being made for her salary for the entire 28 weeks. The engagement and discharge were not contested on the trial, but, as a defense, evidence was introduced to show that, subsequent to the breach, defendant requested the plaintiff to come from England to this country, upon an offer to take parts in plays other than “Cleopatra,” untE such time as the latter was produced. This offer was cabled to plaintiff, and agreed to, provided the engagement should be'for 28 weeks certain; and thereupon the position of the defendant was defined in a letter from the counsel of the defendant to the counsel for the plaintiff, as follows:

“Without acknowledging an agreement, and for the purpose of avoiding litigation, Mss Davenport will take Mss De Loraz for her season commencing about the 28th of October, on the terms and salary Miss Davenport informed Miss De Loraz she would be willing to execute an agreement. She will not bind herself to 28 weeks, though the prospect is that the season may last that long. She is to appear in such plays as Miss Davenport may produce prior to ‘Cleopatra,’ and subsequently in ‘Cleopatra.’”

The respective positions of the parties at this date, therefore, were that the plaintiff was wEling to modify the agreement so as to take part in plays other than “Cleopatra,” provided the engagement was for the same definite period of 28 weeks. Defendant, however, refused to make the engagement for 28 weeks certain, as was provided in the original agreement, or to name any definite time for the duration of the proposed new engagement. This being the condition of the evidence at the close of the case, the defendant moved for a direction of a verdict in her favor, which was denied, and subsequently the plaintiff moved for a verdict, which was granted. No request was made by the defendant to go to the jury upon any question whatever, the case being treated by her and her counsel as raising only a question of law, to be passed upon by the court. It remains, therefore, for us to determihe upon this record whether the indefinite offer made by defendant is a defense to the plaintiff’s entire cause of action; for the defendant, having treated the question as one of law only, and having made no request to be allowed to go to the jury, -cannot now urge her offer in mitigation of the damages, as distinguished from a complete defense. The learned trial judge, in disposing of the case, said:

“The defendant’s season might not have lasted long enough to reimburse the plaintiff for her passage money. The plaintiff was willing to come for the originally stipulated period; but this the defendant refused; and the •offer was not even for a less period definitely specified, but for the defendant’s season, which might have been long or short, according to the defend•ant’s success or capripe.”

Whitmarsh v. Littlefield, 46 Hun, 418, holds that no duty is imposed upon one complaining of a breach of a contract to surrender all his rights under his agreement and accept a new and different •contract, with a view to reduce the damages. The rule of law contended for by the appellant is undoubtedly sound that, when a servant is wrongfully discharged, he must make reasonable efforts to •obtain other employment, and credit the master with the amount earned by him in reduction of damages. He is not bound to accept •employment of a different character, though it need not necessarily be of exactly the same kind or at the same salary. No fault is to be found with this statement of the rule, but, upon the case as it is presented on appeal, it has no application. H the defendant, instead of moving for a verdict, had requested to go to the jury upon the damages, then there might be presented a situation calling for "the application of the rule. As already noticed, however, the defendant did not rely upon the plaintiff’s refusal to accept another ;and different contract of employment as a plea in mitigation of the •damages suffered by the plaintiff, but as an absolute defense to the • entire cause of action. In other words, the defendant seeks to maintain that a contract for an indefinite period, terminable at her own will, is as good in the eye of the law as a contract for a certain •definite period. This statement alone sufficiently disposes of appellant’s contention. Nor is there anything in the case of Bigelow v. Manufacturing Co., 39 Hun, 599, which is in conflict with this view, or with the rule as laid down in Whitmarsh v. Littlefield, supra. We think, therefore, that, both sides having requested the court to pass supon any questions of fact that may have been in the case, and both having relied upon their right to have a verdict directed in their favor, and, as shown, the defendant not being entitled to have such motion granted, and no request having been made to go to the jury upon the question of damages, it was proper, upon the case as it then stood, for the court to direct a verdict for the plaintiff, and in this disposition we can find no error. As there are no other questions presented upon this appeal, the judgment must be affirmed, with costs and disbursements. All concur.  