
    Alexander Solomon, Resp’t, v. Victor Vallette, App’lt.
    
      (Buffalo Superior Court, General Term,
    
    
      Filed July, 1894.)
    Master and servant—Discharge.
    In an action for services, where the term of employment has not expired at the time of trial, the servant, upon wrongful discharge, can recover only to the time of the commencement of the action.
    
      Appeal by the defendant from an order denying a motion made by him for a new trial on the minutes of the judge presiding at the trial, and from the judgment against him herein, entered upon the verdict of a jury.
    
      Edward L. Jellinek, for app’lt; B. Frank Dake, for resp’t.
   White, J.

—This action is prosecuted for the recovery of $1,295, alleged to have been due from the defendant to the plaintiff at the time of the commencement of this action on January 19, 1887, under a contract of employment between the parties.

The complaint alleges that on September 25,1886, the plaintiff and defendant entered into a contract in writing, in and by which the defendant employed the plaintiff to perform certain work and services for the defendant, for which the defendant agreed to pay the plaintiff thirty-ñve dollars a week from September 25, 1886, until September 25, 1887; that the plaintiff entered upon the performance of the contract, and so continued until January 12, 1887, when he was wrongfully discharged from service by the defendant ; that the plaintiff’s wages were paid by the defendant to January 8, 1887, and that by reason of the premises there was at. the time of the commencement of the action due from the defendant to the plaintiff $1,295.

The only issuable fact alleged in the complaint denied by the answer is the wrongful discharge, and so the allegations of the complaint as to the term for which the plaintiff was hired and the compensation to be paid to him as stated in the complaint must be taken to be true for the purposes of this action. Code Civ. Pro. § 522; Southwick v. First Nat. Bank, 84 N. Y. 420; Arnold v. Angell, 62 id. 508.

The action was tried December 1, 1888, aud the plaintiff recovered for twenty-seven weeks and three days services at the rate provided by the contract as alleged in the complaint, being for the period of time between January 8, 1887, and July 20, 1887, at which last named date the plaintiff had entered upon other employment. A mass of testimony was given on both sides upon the trial of this case to which exceptions were taken, but perhaps it may be fairly said that it bore more or less directly upon the main question, to wit, whether or not the plaintiff had been wrongfully discharged from service, although at first blush much of it seems too remote.

At the close of the plaintiff’s case the trial court ruled:

1. That under the complaint it was competent for the plaintiff to recover wages as such which accrued subsequent to the commencement of the action if he was wrongfully discharged, and which was to all intents and purposes holding that upon the wrongful discharge of the plaintiff, assuming it to have been such, future wages to the end of the term became due and payable immediately, and

2. That by the terms of the hiring the plaintiff has the right to continue in the defendant’s service until the defendant should terminate the employment by a notice in writing.

The defendant excepted to these rulings.

The court charged the jury that if the plaintiff is entitled to recover at all, he is entitled to recover wages from January 8 to July 20, 1887. This was also excepted to.

The court was requested by the defendant to charge that if the plaintiff is entitled to recovery at all, he can recover only to the time of the commencement of the action. This was refused and exception taken.

I think these rulings were erroneous, and that the exceptions to them are well taken.

It will certainly require no extended argument nor the citation of authority to establish the proposition that where wages are payable by the week ' and default is made in payment an action can be successfully maintained to recover only such installments as have become due when the action is begun, in the absence of any agreement between the parties that a different rule shall be applied. The principle of law applicable to the facts of the case; as conceded by the pleadings, seems to have been lost sight of for the moment, and another, which would be applicable to a different state of facts, adopted. If, for instance, the action was for damages caused to the plaintiff for his wrongful discharge, he could have recovered such damages as he could have shown he had sustained at the time of the trial, and the wages which he would have earned up to that time would have been prima jade only, the measure of such damages. It is only in cases where the term of employment has expired at the time of the trial that the whole amount of wages for the whole term under the contract.furnishes prima facie the proper measure of damages recoverable in an action like this. In such a case wages as such are recoverable only up to the time of the commencement of the action. Dickens v. Hassel, 26 How. Pr. 528; Huntington v. Ogdensburg & L. C. R. R. Co., 33 id. 416; Costigan v. Mohawk & H. R. R. Co., 2 Den. 609 ; Heim v. Wolf, 1 E. D. Smith, 70 ; Thompson v. Wood, 1 Hilt. 93 ; Toles v. Hazen, 57 How. Pr. 516; Everson v. Powers, 60 id. 166 ; Wallace v. Devlin, 36 Hun, 275 ; Moody v. Leverich, 4 Daly, 401, 402; Weed v. Burt, 78 N. Y. 191; Everson v. Powers, 89 id. 527 ; Gifford v. Waters, 67 id. 80; Fuchs v. Koerner, 107 id. 529; 12 St. Rep. 318; Howard v. Daly, 61 N. Y. 369.

The ruling that the contract of hiring could be terminated by the defendant only by a notice in writing seems also to have been made upon the theory that the plaintiff by virtue of the instrument of October 1, 1886, had acquired such an interest in the property to which his agency related as made such a notice a condition precedent to the right of the defendant ever to regain possession of the property. No such right was asserted by the answer; in law the answer admitted the right of the defendant to resumé possession at the end of the year of service, and for that reason the ruling was erroneous. Moreover, no such right is given to the plaintiff, nor is any such condition precedent created against the defendant by the instrument in question. It contains no provision that the plaintiff shall either be employed beyond the year or that he shall have any custody or dominion over the property to which his agency relates at any time except as the agent and servant of the defendant. To say that under the instrument in question the dominion over the property which was the subject of the agency had passed to the agent as against the principal, as it seems to me, would do violence to the elementary principle of law which regulates the relations of principal and agent. By its terms the instrument, under the most liberal construction which the plaintiff can claim, provides that at the expiration of the year the defendant shall continue the business for thirty days after revoking the agency, for the purpose of enabling the plaintiff to purchase the property. There is not a word in the instrument which would compel the defendant to employ the plaintiff, after the expiration qf the year, or to leave the property in his possession after that time. The provision is that after that time he, the defendant, will carry on the business himself.

' But, in any event, the rule applies that the facts admitted by the pleadings must control, and the only fact in dispute under the pleadings is whether the plaintiff was rightfully or wrongfully discharged, and not whether the defendant was guilty of a breach of some contract not set forth in the pleadings.

These views necessitate a reversal of the order and judgment appealed from.

Titus, Oh. J., and Hatch, J., concur in result.

Judgment and order reversed.  