
    Benjamin H. Marcus and Louis Maisel, Respondents, v. Max Liner, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1914.)
    Contract — to work for specified time — measure of damages recoverable by employer from employee for breach.
    Where defendant, under contract to work for a year as a designer in plaintiffs’ garment manufacturing establishment, left after less than two weeks’ service, plaintiffs’ measure of damages for the loss of certain partly completed samples designed by defendant is the cost of the actual labor and materials employed in their production.
    ■The only damages recoverable by an employer from an employee for breach of his contract of personal employment is the difference between the wages or salary agreed upon and what the employer would be compelled to pay another for the performance of the work abandoned.
    Where it appears that within two weeks after defendant left their employ, plaintiffs contracted for the services of a designer at less salary than that paid to defendant, damages for the loss of his uncompleted samples which the new designer did not use were not recoverable as they were too remote, and not within the contemplation of .the parties to the contract.
    Appeal from a judgment of the Municipal Court of the city of New York, borough of Manhattan, fourth district, entered in favor of the plaintiff upon a verdict of a jury for $300.
    
      Jacob Manheim, for appellant.
    Goldstein & Goldstein, for respondents.
   Page, J.

The plaintiffs, who were engaged in the business of manufacturing garments, entered into a written contract with the defendant whereby he agreed to work for them for a year as a designer at a salary of thirty-five dollars per week for the first six months and forty dollars per week for the last six months. After working one week and two days the defendant left their employ and went to work for another manufacturer. The verdict of the jury has resolved in favor of the plaintiffs, for the purposes of this appeal, the question of fact as to whether or not the defendant abandoned his contract unlawfully, and the sole question before us relates to the measure of damages awarded to the plaintiffs.

The plaintiffs were allowed at the trial to prove that during the two weeks in which the defendant was working for them their entire shop was given over to the making of samples for the spring trade, which had to be completed by December fifteenth to be of any use; that the defendant designed and partly completed seventeen samples which he abandoned on November twenty-eighth in an unfinished condition and that the plaintiffs were unable to obtain the services of another designer for two weeks and were unable to complete the samples for use as such, but sold them in the open market for $153 as a “ job lot ” of garments. The plaintiffs were then allowed to prove as damages practically the entire running expenses of their shop during the two weeks of defendant’s employment including the rent of the store for that period. To this was added the cost of ,the materials used in making the samples and the cost of finishing them after the defendant left. The total cost of the seventeen samples to the plaintiffs was thus figured to be $463, from which was deducted the sum of $153, obtained by sale of the samples as a job lot ” as aforesaid leaving damages of $310. The appellant objects to this measure of damages as improper and not according to law. I am of the opinion that the evidence allowed was improper for two reasons. In the first place the cost of the samples was not properly measured by the entire running expenses of the business during the time they were made, including rent of the premises. The plaintiffs maintained a regular establishment and presumably would have been compelled to pay rent and employ some labor whether the samples were made or not. In answer to a question of counsel, “ Did you manufacture any work during that time?” one of the plaintiffs answered, “ Sometimes there may have been a little order come in; we devoted the time to making samples.” This shows that the entire business during the two weeks was not the making of these samples, and provided it was proper to prove the cost of the samples it should have been done by showing the actual labor and materials employed in their production and nothing more. But a more serious question is raised as to the propriety of allowing the plaintiffs’ alleged loss upon the samples as an element of damage for the breach of defendant’s contract of employment. It is a well established rule of law that one may recover for breach of a contract only such damages arising therefrom as may be said to have been reasonably within the contemplation of the parties in entering into the contract relationship with one another, and upon this principle it has been frequently held by the courts of this and other states that the only damages recoverable by an employer from an employee for breach of his contract of personal employment by abandonment of the employment is the difference between the wages or salary provided for in the contract and what the employer would be compelled to pay another for the performance of the work abandoned. Peters v. Whitney, 23 Barb. 24 ; Haskell v. Osborn, 33 App. Div. 125 ; Prosser v. Jones, 41 Iowa, 674 ; Reich v. Bolch, 68 id. 526 ; Cannon Coal Co. v. Taggart, 1 Col. App. 60. In Peters v. Whitney, supra, the defendant was employed as a farm hand and unlawfully abandoned his work. The plaintiff was allowed by the trial court to recover damages to plaintiff’s crops by reason of defendant’s leaving. This was reversed upon appeal to the General Term of Monroe county upon the ground as stated that The legal measure of damages in snch cases is the difference between the contract price with the defendant and the price the plaintiff was obliged to pay for labor to supply his place.”

I am unable to find in the reported decisions a case in which any other measure of damages for breach of a contract of personal service has been allowed to an employer. It might be that in a case where the services contracted for and the personal qualifications of the employee are unique, and no substitute could readily be obtained, a different rule would have to be adopted based upon the peculiar facts and circumstances of the case, but it is not shown that this is such a case. It appears in the present case that the plaintiffs contracted for the services of a new designer in place of the defendant, within two weeks after he left them, at a salary of thirty dollars per week or five dollars less than they paid the defendant. It is true that the plaintiffs claim that they could not obtain a new designer for about two weeks but on the other hand it also appears that the new designer when he came did not use the seventeen samples made by the defendant but started new ideas of his own. The failure to complete the seventeen samples before December fifteenth, therefore, was not shown to be due to plaintiffs’ inability to obtain a man in defendant’s place, and it is not shown that they could have been completed on time had the defendant remained in the plaintiffs ’ employ, nor was it proved that the samples could not have been utilized and stock for the season prepared from them. The damages proved are in my opinion too remote and not within the contemplation of the parties to the contract. The .plaintiffs proved no proper damages.

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

Guy and Whitaker, JJ., concur.

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