
    Ernest Schmieder, Resp’t, v. Herbert M. Kingsley et al., App’lts. Franz Wagner, Resp’t, v. Herbert M. Kingsley et al., App’lts.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 4, 1893.)
    
    
      1. Contract.
    In the absence of fraud, accident, surprise or mistake, an agreement, even in equity, cannot be avoided merely because the party seeking to avoid it did not read the agreement before execution, and believed its contents to be different from what he subsequently discovered them to be.
    3. Same—Penalty.
    The language used in a written agreement is immaterial if the intention to provide a penalty is apparent.
    3. Same—Employment.
    A written agreement between defendants, hotel keepers, and plaintiff, a waiter entering their employ, provided that if plaintiff should abandon his employment except upon three days’ notice he should forfeit all moneys then due and owing him from defendants, by way of liquidated damages. Held, that the agreement provided for a penalty, and not for liquidated damages.
    Appeal from a judgment for plaintiff recovered in the district <30urt in the city of Hew York for the fourth judicial district.
    Action for wages.
    
      August P. Wagner, for resp’t; George M. Pinney, Jr., for appl’ts.
   Bischoff, J.

Defendants are the proprietors of the “ Holland House,” a hotel in the city of Hew York, and plaintiff entered their employment as a waiter under an agreement in writing which in substance provided that the employment should be by the day, and the compensation at the rate of twenty-five dollars a month; that defendants reserved the right to discharge plaintiff at any time, in which event all future compensation was to cease; but that plaintiff should not be permitted to abandon the employment except upon three days’ previous notice in writing of his intention so to do; and that if plaintiff should abandon his employment without having given the notice he should forfeit, by way of liquidated damages, all moneys then due and owing to him from defendants. Plaintiff continued in defendants’ employment for fifteen days, and thereafter instituted this action to recover the wages earned during that period. On the trial, he maintained that he was discharged, while defendants asserted that he left their employment voluntarily and without having given the required three days’ notice.

There was considerable testimony which aimed to show that plaintiff did, and did not, read the agreement before its execution by him. This testimony, however, is wholly immaterial. The court below was without jurisdiction to rescindor reform the agreement, Ferree v. Ellsworth et al., 47 St. Rep., 119, but even in equity, in the absence of fraud, accident, surprise or mistake, an agreement cannot be avoided merely because the party seeking to avoid it did not read the agreement before execution and believed its contents to be different from what he subsequently discovered it to be. See cases collated in note to Spitze v. Balt. & Ohio R. R. Co., 32 Am. St., 378, 385. The agreement therefore must constitute the measure of plaintiff’s rights unless it, or some part of it, is inoperative for other reasons.

We cannot, however, regard the provisions of the agreement, that for plaintiff’s departure from defendants’employment without having given three days’ previous notice in writing of his intention so to do he should forfeit all moneys then owing to him, as anything but a penalty. The language used is immaterial if the intention to provide a penalty is apparent. Whether or not, therefore, the sum stipulated to be paid or forfeited upon the breach of a contract is to be regarded as a penalty or damages is a question mainly of the intention of the contracting parties which must be ascertained from the contract itself in the absence of ambiguity. Kemp v Knickerbocker Ice Co., 69 N. Y., 45; Lennon v. Smith, 14 Daly, 520, 523; 16 St. Rep., 668; Sutherland on Damages, vol. 1, § 283.

In the present instance the agreement did not name a fixed sum which, within the range of reasonable probability, would represent the pecuniary estimate of the loss which defendants might sustain from plaintiff’s breach of contract. It provided that plaintiff should suffer the loss of all moneys due him from defendants at the time of his departure from their employment, without reference to the extent of the injury, immediate or remote, which defendants might suffer from plaintiff’s conduct. ' It might be, therefore, that the amount owing to plaintiff from defendants is outrageously in excess of any loss which the latter have sustained, or in all reasonable probability could sustain, and still, if the letter of the agreement was permitted to be controlling, plaintiff would be without redress. Assuredly such a provision is intended to mete out punishment rather than to afford compensation.

Having reached the conclusion that the agreement provided for a penalty and not for liquidated damages, and observing that this action was brought to recover for accrued wages, and that no counterclaim was pleaded or attempted to be established on the trial, it follows that it was immaterial that plaintiff was discharged or voluntarily left defendants’ employment. The judgment should, therefore, be affirmed, with costs. .

Giegerich, J., concurs.  