
    Max Marx, Appellant, v. New York Ribbon Company, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Contracts — recovery for breach of — wrongful discharge from employment — evidence — damages.
    Upon the wrongful discharge of one employed at a weekly salary he is entitled to recover as damages for breach of. the contract such a sum as it is reasonably certain may follow such breach, determinable approximately by a jury upon reasonable conjecture and probable estimate.
    Ordinarily the damages recoverable in an action for wrongful discharge from employment would presumptively be the amount of the plaintiff’s salary due at the time of the trial, less his actual earnings up to that time and those that would become due after the trial being reduced by the amount of his future earnings.
    The fact that plaintiff after his discharge became ill furnished no presumption, in the absence of proof of the character of the illness, that it would have arisen had he continued in the employ of defendant, or that it would have justified a suspension of payment on the part of the employer.
    Where there was not a scintilla of proof which would have justified the jury in finding that had plaintiff continued in defendant’s employ he would have been unable to perform his contract, and it appears that he made all reasonable effort to obtain other employment and failed to do so, it was error to give judgment only for the amount of salary plaintiff would have earned for three out of the seven weeks of the unexpired term of the contract broken by defendant.
    Bijur, J. dissents.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, seventh district, entered by direction of the court after a trial without a jury.
    Nathaniel Phillips (Henry Marx, of counsel), for appellant.
    Loeb, Bernstein & Ash (Mortimer B. Bernstein, of counsel), for respondent.
   Guy, J.

The action is for breach of contract of employment. A cross appeal by plaintiff from the same judgment on the ground of inadequacy is also on the calendar at this term. The employment of plaintiff and his unjustifiable discharge by the defendant is clearly proven. The employment was at a salary of forty dollars per week. At the time of the wrongful discharge, plaintiff became entitled to recover as damages for the breach of the contract such sum as it is reasonably certain actually might follow such breach determinable approximately by a jury upon reasonable conjecture and probable estimate. Davis v. Dodge, 126 App. Div. 469, 471; Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205. Ordinarily such damages would presumptively be the amount of the employee’s wages or salary due at the time of the trial, less his actual earnings up to that time, and those that would have become due after the trial being reduced by the amount of his future earnings.. American China Development Co. v. Boyd, 148 Fed. Rep. 258.

In Davis v. Dodge, supra (Gaynor, J., writing the opinion), the court says: The rule is settled in England and here that the employee has an immediate right of action on the breach for his entire damage. * * * The question must therefore come down to one of proof, i. e., the plaintiff may recover all the damages he can prove, whether up to the time of the trial, or not up to that time, or up to the end of the contract period, whether it be before or after the trial. * * * The plaintiff in such an action, the same as in other actions, should be able to recover such damages as may be fairly or reasonably estimated from his proofs, taking all the facts, probabilities, certainties and uncertainties into consideration.”

In Cutter v. Gillette, 163 Mass. 95, the court held: For this breach he (the plaintiff) can have but one action. In estimating his damages the jury have the right to consider the wages which he would have earned under the contract, the probability whether his life and that of the defendant would continue to the end of the contract period, whether the plaintiff’s working ability would continue, and any other uncertainties growiug out of the terms of the contract, as well as the likelihood that the plaintiff would be able to earn money-in other work during the time.”

But while proof of condition of health of the plaintiff before his discharge, or of his death thereafter during the term of the contract, as bearing upon the question of his ability to perform his contract for. the entire term, may be considered by the jury where the facts and circumstances proven furnish a competent basis for such consideration, the mere fact of illness after his discharge does not furnish such competent basis for the consideration of the jury. The fact that the employee, after his discharge, became ill furnishes no presumption, in the absence of proof of the character of the illness, that the illness would have arisen had he continued in his employment or that it would have been of such a character as, under the terms of his employment, would have justified a suspension of payment on the part of the employer. In the absence of competent evidence as to the.nature and character of the illness and the circumstances under which it developed, it is reasonably to be inferred that the illness might result from the character of some new employment, which the employer’s breach had compelled the employee to undertake, to lack of earnings sufficient to properly maintain health, because of his wrongful discharge, or to various other causes which might not have existed had he been allowed to continue his employment under his contract. To permit an employer guilty of breach of his contract to thus derive advantage from the probable results of his wrongful act would be subversive of justice. In this case there is not a scintilla of proof which would justify the jury in finding that had plaintiff continued in: defendant’s employ he would have been unable to fully-; perform Ms contract. The presumption is that he would have been able to perform Ms contract and enjoy the full benefits thereof. The evidence shows that he made all reasonable effort to obtain other employment and failed to do so. The trial judge, acting without a jury, erred, therefore, in giving judgment only for the amount of salary he would have earned for three out of the seven weeks of the unexpired term of the contract broken by defendant. Plaintiff was entitled to judgment for the salary for the full unexpired term of seven weeks at forty dollars per week, amounting to $280.

The judgment must, therefore, upon plaintiff’s appeal, be modified by changing the amount to two hundred and eighty dollars, with appropriate costs in the court below, and as so modified affirmed, with twenty-five dollars costs of appeal to the plaintiff. Upon defendant’s appeal judgment affirmed with twenty-five dollars costs to plaintiff.

Phiubin, J., concurs.

Bijur, J. (dissenting).

Xdissent on the ground that where an action is brought for a wrongful discharge after the term of the original employment has ended and defendant shows that plaintiff was incapacitated by illness from working and thereby from earning wages during a period within the term, the damages recoverable should be reduced by the amount of the compensation provided by the contract of employment for the period of incapacity. Hughes v. Toledo Scale Co., 112 Mo. App. 91, 101, inadvertently cited for the contrary proposition in Labatt Mast. & Serv. § 396, subd. f, p. 3205. I do not doubt that there may be cases in which the plaintiff may in reply be able to show that such deduction should not be made, but there is no suggestion, either by way of proof or argument, of any such condition in the case at bar.

In my opinion the judgment should be affirmed.

Judgment upon plaintiff’s appeal modified, and as so modified affirmed, with twenty-five dollars costs. Upon defendant’s appeal judgment affirmed, with twenty-five dollars costs.  