
    Frank Heiferman, Appellant, v. The Greenhut Cloak Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    December, 1913.)
    Master and servant — offer of master to re-employ servant wrongfully discharged considered in mitigation of damages — servant’s refusal to accept re-employment no bar to action for damages.
    While the offer of a master to re-employ a servant wrongfully discharged may be considered in mitigation of damages, it is not a complete defense to an action for damages for breach of the contract; the servant, however, is not bound to accept employment from his former employer in preference to others.
    The question of the reasonableness and good faith of the offer to re-employ is one of fact for the jury.
    If deemed to have been submitted to the jury, the verdict in plaintiff’s favor determined all matters of defense, and defendant by failing to' ask that matters of defense be submitted to the' jury waived his right thereto.
    The servant’s refusal to accept re-employment unless another servant was discharged was no bar to his action for damages, where during such negotiations he retracted such refusal.
    The servant, as a condition of his re-employment and waiving his right, of action for damages, was entitled to insist that defendant compensate him for lost time and for traveling expenses necessarily incurred in returning to his home after having been discharged.
    Appeal by the plaintiff from an order of the City Court of the city of New York granting a new trial to the defendant.
    George H. Francoeur (Charles Tolleris, of counsel), for appellant.
    Henry B. Singer (David L. Podell and Sidney Newborg, of counsel), for respondent.
   Guy, J.

Plaintiff, a resident of New York, entered into a contract of employment with defendant for the term of one year from October 15, 1911, to act as superintendent for the defendant in Cleveland, O., at a salary of $7,000 per year, and proceeded to Cleveland where he entered upon the performance of his duties. He alleges that in December, 1911, he was wrongfully discharged by the defendant, and claims the balance of the yearly salary, less the sum of $4,873, admitted to have been earned by him subsequent to the alleged discharge. Defendant denies the wrongful discharge and sets up an offer of re-employment, on the same terms as the original contract, alleged to have been made by the defendant to plaintiff about one week subsequent to the alleged discharge, claiming that by such refusal of re-employment plaintiff waived all right to more than nominal damages.

The ¡jury found on amply sufficient evidence that defendant did wrongfully discharge the plaintiff, and, after deducting the amount admitted to have been earned by plaintiff, rendered a verdict for the balance of the yearly salary.

In the charge to the jury the trial justice made no reference to the alleged offer of re-employment, nor did defendant’s counsel ask to go to the jury on that issue. The trial justice, however, in the elaborate and very extended opinion filed with the decision granting the motion for a new trial, has stated in substance that the motion was granted on the ground that it was plaintiff’s duty to accept the offer of reemployment, and that in refusing so to do he deprived himself of the right to recover damages for the alleged breach of contract. In this the learned court erred. While the mere offer by the employer to re-employ, after wrongful discharge, may be considered in mitigation of damages, it does not, regardless of the circumstances and conditions existing at the time between employer and employee, furnish the employer with a complete defense to an action for damages for breach of contract. A wrongfully discharged employee is not bound to accept employment from his former employer in preference to other employers. His sole duty is, in mitigation of damages, to accept such employment as is offered Mm by any one, even including his former employer, who has already broken one contract, where the terms and conditions of such preferred employment are reasonable. The question of the reasonableness and good faith of defendant’s offer was a question of fact for the jury, not a question of law to be determined by the court. Levine v. Standard Fashion Co., 4 N. Y. Supp. 867; De Loraz v. McDowell, 22 id. 606. If deemed to have been submitted to the jury, they have determined the question in favor of plaintiff. If not submitted to the jury then, defendant having made no request for such' submission, must be deemed to have waived his right thereto; and the evidence on that point could not properly be made a ground for setting aside the verdict. But instead of the verdict being against the weight of evidence on this point, it is fully supported by the evidence. Plaintiff testified that frequent disputes had arisen between him and defendant prior to plaintiff’s wrongful discharge, because of plaintiff’s claim that another superintendent, named Kerstein, employed by defendant subsequent to plaintiff’s employment, interfered with plaintiff and prevented plaintiff ’s proper performance of his duties, and that when defendant first offered to re-employ him some two or three days after his wrongful discharge and after his return to New York, he at first refused to accept reemployment unless defendant discharged Kerstein, but, during subsequent negotiations, withdrew that demand. Plaintiff’s preliminary refusal to return to defendant’s employ unless Kerstein was discharged was not conclusive evidence against him in view of the subsequent renewal of the negotiations and his subsequently expressed willingness to waive that condition. “ There was a locus poenitentiae,” some reasonable time during which plaintiff might have become aware that he was in error and receded from his position. National Contracting Co. v. Hudson River W. P. Co., 192 N. Y. 218.

It' further appears that defendant did not, in its original offer of re-employment, include proffer of payment for the time lost by plaintiff since his discharge or for the expenses which would be necessarily incurred by him in returning to the place of employment. Plaintiff, if re-employed, was entitled to demand that he be made whole, that he suffer no loss because of his wrongful discharge. The failure to include in the offer full compensation for the time lost since his discharge and the necessary expense of returning to the place. of employment would justify a jury in finding that the offer of re-employment was not reasonable or not made in good faith.

Defendant’s evidence as to the final offer of reemployment is embodied in defendant’s Exhibit D, a letter written by defendant’s attorney to plaintiff’s attorney, wherein it is stated: “ They (defendant) will not pay his expenses from Cleveland to New York and return, as suggested in your letter, nor any salary for the time he was idle,” i. e., for the term intervening between the alleged wrongful discharge, and the time of the offer of re-employment. This was. in effect an offer of re-employment based on the condition that plaintiff should waive his right to compensation for the period that he was deprived of employment by defendant’s breach, of contract. Plaintiff was under no obligation to accept re-employment upon such unreasonable and unjust terms. There was no obligation resting upon him, after a wrongful discharge by defendant, to waive any rights already accrued as to damages resulting from defendant’s breach of contract.

The questions of fact involved having been determined in favor of the plaintiff on sufficient evidence, and no proper ground appearing for the setting aside of the verdict, the order must be reversed, with costs, and the judgment reinstated, with costs.

Seabury and Bijur, JJ., concur.

Order reversed, with costs.  