
    Luther Williams, Appellant, v. William J. Conners, Respondent.
    • Complaint for a breach of a contract of employment—a prayer for relief which asks for wages instead of for damages is sufficient.
    
    A complaint alleged "That on or about the 17th day of May, 1899, at Buffalo, N. Y., the defendant engaged the services of the plaintiff, at his special instance and request to work for him for the period of seven months from on or about said 17th day of May, 1899, at the rate of $75.00 per month,” and that the plaintiff performed services in pursuance of said contract until the 27th day of May, 1899, when he was wrongfully discharged; that the plaintiff refused to accept such discharge, but tendered to the defendant his services, which he has ever been ready and willing to perform, and "that there is now justly due from defendant to plaintiff the sum of §75.00 for one month’s pay,” and as relief asked "Wherefore, plaintiff demands judgment of said defendant for the sum of §75.00, with interest thereon.”
    
      Held, that the complaint stated all the facts essential to a cause of action for damages for the breach of the contract of employment, and that the mere fact that the demand in the prayer for relief was for seventy five dollars for one month’s pay for the breach of the contract instead of seventy five dollars damages therefor, did not render the pleading defective.
    
      Semble, that if the complaint were insufficient in this regard, justice would require that a motion to amend it be granted.
    Appeal by the plaintiff, Luther Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 26th day of February, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.
    The complaint alleges:
    
      “ That on or about the 17th day of May, 1899, at Buffalo, N. Y., the defendant engaged the services of the plaintiff, at his special instance and request to work for him for the period of seven months from on or about said 17th day of May, 1899, at the rate of $75.00 per month.
    “ The plaintiff did perform services for said defendant in accordance with the terms of said contract from on or about said 17th day of May, 1899, to said 27th day of May, 1899, and was paid by said defendant for said services.
    “ That on or about the 27tli day of May, 1899, the defendant wrongfully discharged said plaintiff.
    
      “ That plaintiff then and there refused to be discharged. That plaintiff tendered defendant his services at the time of being so discharged by said defendant and has ever been ready and willing to perform said services for said defendant.
    “ That there is now justly due from defendant to plaintiff the sum of $75.00 for one month’s pay.
    
      “ That no part thereof has been paid although payment has been repeatedly demanded of the defendant by the plaintiff and said defendant refuses to pay the same.
    “ Wherefore, plaintiff demands judgment of said defendant for the sum of $75.00, with interest thereon from June 27th, 1899, together with the costs and expenses of this action.”
    The record shows that upon the case being moved for trial, the defendant moved to dismiss the complaint, whereupon plaintiff’s counsel moved to amend. The latter motion was denied and the former granted.
    
      Bertrand Glover and Yernon Gole, for the' appellant.
    
      Ed/ward L. J%mg and Robert F. Schilling, for the respondent.
   Laughlin, J. :

Although the record does not disclose the ground of the motion to dismiss the complaint or the nature of the amendment requested by the plaintiff, it is evident, and it is conceded, that the motion to dismiss was based upon the plaintiff’s failure to demand damages instead of wages and that the amendment desired was to remedy this supposed defect.

While it is well settled that wages can only be recovered in an action on contract and for services actually rendered, yet a wrongful discharge before the expiration of the period of employment gives the employee a right of action for breach of contract, and the damages are presumptively the wages for the full term or down to the time of the commencement of the action, if it be commenced before the expiration of the term of employment, and the burden of showing, in mitigation of damages, that the employee obtained or failed to seek other similar employment, or that he could have obtained it, rests upon the defendant. (Howard v. Daly, 61 N. Y. 362 ; Crawford v. Mail & Express Pub. Co., 22 App. Div. 54; Waldron v. Hendrickson, 40 id. 7; Wieland v. Willeox, Id. 213.)

Section 481 of the Code of Civil Procedure provides that the complaint must contain a plain and concise statement of the facts constituting the cause of action and' “ a demand of the judgment to which the plaintiff supposes himself entitled.”

Where the facts from which damages naturally flow are stated and there is a demand for judgment for a certain sum of money, the complaint need not allege in terms that damages have been sustained. (Ketchum v. Van Dusen, 11 App. Div. 332; Kenney v. N. Y. C. & H. R. R. R. Co., 49 Hun, 535.)

In an action for breach of contract an erroneous demand for relief, or a demand for damages predicated on an erroneous theory, does not deprive plaintiff of the relief to which he is entitled upon the facts pleaded. (Muldowney v. Morris & Essex R. R. Co., 42 Hun, 447; Colby v. Colby, 81 id. 221; Kraft v. Rice, 45 App. Div. 569; Colrick v. Swinburne, 105 N. Y. 503; Sussdorff v. Schmidt, 55 id. 319.)

The complaint states every fact essential to a cause of action for damages for breach of the contract of employment, and does not state all the facts essential to constitute a cause of action for wages. The mere fact that the demand is for seventy-five dollars wages for the breach of contract, instead of seventy-five dollars damages therefor, does not render the pleading fatally defective as an action for damages. (Waldron v. Hendrickson, supra.) But, if the complaint were insufficient in this regard, justice required that the motion to amend should have been granted.

The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  