
    Samuel Baros, Respondent, v. Meyer Jarmulowsky et al., Appellants.
    Appeal from a judgment of the Municipal Oourt of the- city of New York, first district, borough of Manhattan.
    Abraham H. Sarasohn, for appellants.
    Abraham I. Spiro, for respondent.
   O’Gormak, J.

Plaintiff was employed by the defendants on January 3, 1899, under a five years’ contract, which contained a provision allowing the defendants to terminate the same at the end of the first year by the payment of $500. On October eighth of the same year, the plaintiff was discharged, as he claims, without cause, and immediately brought suit to recover $500 for breach of contract.” Upon the trial, the question was litigated as to whether the discharge at that time was justifiable. We are to infer from the finding of the court below that this question was resolved in favor of the plaintiff. It was stipulated, however, upon the record that the plaintiff made no claim for loss of wages from the date of his discharge to December 21, 1899, the date of the trial, and confined his right to recover to the $500 mentioned in the contract.

Under the circumstances, the judgment rendered in favor of the plaintiff for $500 must be reversed, for even though the defendants discharged the plaintiff before the expiration of the year, they were not required to pay the $500, if at all, until the date mentioned in the agreement. As the defendants, however, conceded, notwithstanding plaintiff’s disclaimer on the trial, a liability to the extent of $266.66, covering the period from October 8, 1899, to December 21, 1899, the judgment will be modified by reducing the judgment to $266.66, and costs, and as modified, affirmed, without costs to either party, if the plaintiff, within ten days after the service of a copy of the order and notice of entry, file a stipulation in the office of the clerk of this court, consenting to such'modification, and if such stipulation is not filed the judgment will be reversed, with costs to the appellants to abide the event.

Giegebich, J., concurs; Beekman, P. J., concurs in result.

Judgment modified by reducing sum to $266.66 and costs, and as modified, affirmed without costs, if plaintiff within ten days after service of a copy of order and notice file a stipulation consenting to such modification. Tf such stipulation is not filed, judgment reversed, with costs to appellants to abide event.  