
    John Howson, Resp’t, v. William A. Mestayer, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 6, 1886.)
    
    
      1 Contract for services — Breach by employer — What may be
    SHOWN IN MITIGATION OF DAMAGES.
    Where the plaintiff, an actor, has been employed at a stipulated salary, upon a breach of contract by his employer, the salary agreed upon is prima facie the amount of plaintiff’s damages, but it is the right of the defendant to show that the plaintiff might have obtained other employment, and thereby reduced the damages.
    2. Same—Damages for wrongful discharge—Right of recovery.
    An effort to obtain another engagement is not a condition precedent to a right to recover damages for a wrongful discharge. Though it is always the duty of a person who has sustained an injury to make reasonable efforts to avoid swelling the damages, he is not bound to prove as a part of h s cause of action the steps he has taken to lessen the damages. The burden is on the defendant to show that through the plaintiff’s neglect the damages have been unnecessarily increased.
    
      Howe & Hummel, for resp’t; S. G. Barnard, for app’lt:
   Van Hoesen, J.

The defendant is mistaken in supposing that he was entitled to a judgment in his favor, because the • plaintiff admitted that after he was discharged he made no effort to obtain other employment. The only consequence of the plaintiff’s neglect to look for another situation was that the defendant was entitled to deduct from the plaintiff’s claim whatever sum the plaintiff could have earned if he had taken the employment that he could have obtained. There was no presumption that the plaintiff, even if he had secured an engagement at another theatre, could have earned $200 per week, and there is no evidence to warrant the conclusion that he could have completely protected the defendant against all damages if such an engagement had been found. The defendant virtually assumes that in order to recover at all it was necessary for the plaintiff to prove that after his discharge he had sought other employment. This is an error. An effort to obtain another engagement was not a condition precedent to the plaintiff’s right to recover damages for a wrongful discharge. Though it is always the duty of a person who has sustained an injury to make reasonable efforts to avoid swelling the damages, he is not bound to prove as part of his cause of action the steps he has taken to minimize the damages. The burden is on the defendant to show that through the plaintiff’s neglect tho damages have been unnecessarily increased. When proof of that fact is made the loss resulted from that neglect falls where it ought to fall—upon the plaintiff. In this case, if he wished to show that it was in the plaintiff’s power to have saved himself from the loss for which he seeks compensation the defendant was bound to satisfy the jury that the plaintiff could have obtained an engagement at another theatre on terms as favorable as those contained in the contract that was broken. If the defendant had shown that the damages to which the plaintiff would have been entitled would have been nominal; if the evidence showed that the plaintiff could have obtained a suitable engagement at a smaller salary than the defendant had agreed to pay, the difference between the two amounts would have been a fair measure of damages. But it was, as I have said, the duty of the defendant to prove to what extent the plaintiff’s damages ought to be reduced. Prima facie the stipulated salary was the amount of the plaintiff’s damages, but it was the right of the defendant to show that it was the fault of the plaintiff that this damage was so large. But the defendant did not prove that the plaintiff could have obtained employment at another theatre, nor did he present any testimony from which a jury could calculate how much the plaintiff could have earned if he had succeeded in getting an engagement at that season of the year at Daly’s, at the Casino or at the Bijou opera house.

It appears that those three theatres were open, but that the companies were all full, and that no vacancies were known to exist. The plaintiff said that perhaps he might have got an engagement, if some actor at one of the three theatres had been displaced, but that professional courtesy would have made him unwilling to procure the discharge of a fellow actor, in order that he might get his place. This feeling is creditable to the plaintiff, for it is no more the duty of an actor to supplant another, than it is the duty of a physician, or a lawyer to get away the patients or the clients of his professional brother. But it is upon this declaration of the plaintiff’s, that he thought he might have succeeded in getting some other actor discharged, and in slipping into the vacancy, that the court is asked to decide that the plaintiff is solely responsible for the loss that he has sustained. It is sufficient answer to say that the plaintiff’s conjecture as to the possibility of his stepping into some other comedian’s shoes does not amount to proof that he could have obtained an engagement elsewhere. If he had made an attempt to displace another actor, he might have found that his own estimate of his value as a comedian, differed widely from the judgment of the manager of the theatre. The plaintiff had already said, “There w-ere no other places for me to perform at; the companies were all full; there was not any vacancy in any of the companies that I know of.” It would be absurd in view of this state of facts, to throw out of consideration everything but the plaintiff’s guess as to the possible result of an effort on his part to get another actor’s place.

The case in the books that most resembles this, is that of Gillis v. Space, 63 Barb., 177. The plaintiff in that case was a school teacher, who was wrongfully discharged. The defendant proved in mitigation of damages, that, when the plaintiff was discharged, many of the schools in Salamanca were not taken, and also what compensation was usually paid for teaching in schools in that neighborhood. The court did not deem that testimony sufficient to go to the jury, and held that it did not "tend to prove that “the plaintiff could have got other employment of the same general nature, in the same vicinity.” The general term affirmed the judgment, saying that there was no proof as to the number of schools that were vacant, or as* to how long the vacancies remained, or as to the plaintiff’s knowledge that the vacancies existed, or that the vacancies were such as the plaintiff should have filled. If the testimony in that case were too slight to go to the jury, what must be said of the testimony in the case before us? Here it is shown that the plaintiff was discharged in the middle of the summer, when only three theatres were open in New York, and when the companies were all full, and regularly performing. Surely, there is not a scintilla of proof that the plaintiff could have obtained another engagement, nor is there any basis for a mitigation of damages.

The judgment and order appealed from should be affirmed, with costs.

Labbemore, 0. J., and Daly, J., concur.  