
    Carrie Gaynor, Respondent, v. Max H. Jonas, Appellant.
    
      Master and servant — what sickness of the servant will justify the master in
    
    An employee engaged to render personal services for a specified period, who is, by reason of sickness, disabled from completing his period of service, may recover the-value of such services as he has actually renderéd. Sickness under such circumstances is to be deemed the act of God. '
    While, under such a contract, the employer is not bound to wait an unreasonable length of time for the restoration of the servant’s health, the illness which will justify him in dismissing the servant must be something more than a mere temporary malady. It must be a serious sickness, lasting, or likely to last, so long as to interfere substantially with the interests of the employer.
    Thus, where the period of the contract is three months, the illness of the servant for a day and a half does not entitle the employer to dismiss the servant, and, if he does so, he renders himself liable to an action for a breach of the contract.
    Appeal by the defendant, Max H. Jonas, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in- favor of the plaintiff, entered on the 3d day of September, 1904.
    
      Wilber W. Chambers, for the appellant.
    
      A. Berton Reed, for the respondent.
   Willard Bartlett, J.:

This action was brought to recover damages for the alleged unlawful discharge of the plaintiff from the service of the defendant. The proof was such as to warrant the Municipal Court justice in finding, and we must assume that he found, that a contract was entered into between the plaintiff and defendant whereby the defendant undertook to employ the plaintiff as a millinery trimmer for a period of three months at a compensation of sixteen dollars a week ; and that after the plaintiff had rendered services under this contract for about a month she was discharged by the defendant by reason of the fact that she had been prevented from work for a day and a half on account of illness. It is -contended in behalf of the' defendant that the plaintiff gave no notice of her intention to be absent; but the plaintiff testifies in substance that she notified defendant’s wife at his place of business on both occasions, being unable to notify the defendant himself because he was not there.

It is well settled that where an employee under a contract for the rendition of personal services for a specified period is disabled by sickness from fully performing the contract, he may recover the value of such services as he has actually rendered. (Wolfe v. Howes, 20 N. Y. 197, and cases there cited.) Sickness under such circumstances is said to be deemed the act of God. (Green v. Gilbert, 21 Wis. 395.) I do not understand that the appellant disputes this rule of law; .but he contends that while the plaintiff’s illness might relieve her from any liability for a failure fully to perform the contract on her part, she cannot recover against the' defendant on account of a wrongful dismissal inasmuch as he had an absolute legal right to dismiss her as soon as she absented herself from his employment, even though her absence was necessarily induced by her illness.

Under a contract of this sort, I think that the illness which will justify a master in dismissing his servant must be something more than a mere temporary malady of short duration compared with the entire period of service contemplated by the agreement. In other words, it must be & serious sickness, lasting or likely to last so long as to interfere substantially with the interests of the employer. “ Sickness for a lengthened period — in one case two weeks* ■—■ releases both parties from the contract. The master is not bound to wait unreasonably for the restoration of his servant’s health, and his necessities may well be regarded as the measure of what is reasonable.” (Wood on Mast. & Serv. [2d ed.] 238 ; Hubbard v. Belden, 27 Vt. 645.) In the case cited, the language of Redfield, Oh. J., who-delivered the opinion of the court, contains the clearest implication as to what that distinguished judge conceived to be the law on this subject; and that is that under a contract for the rendition of personal services the master may not under ordinary circumstances discharge the servant on account of incapacity occasioned by illness without affording the servant a reasonable time within which to return to his work. The plaintiff appears to have been a farm hand who had contracted to work for the defendant for six months, but was disabled by an injury which he received after he had worked about four months. After an absence of a week in consequence of this illness, and a declination on the part of the plaintiff to resume work, the defendant employed another person in his stead. “ We think it must be regarded as pretty clear,” said the court, that the defendant would be released from any obligation to wait two weeks for his hired man to recover, upon the uncertainty of his then recovering, before he. employed other help.” This statement assumes that there was an obligation on the part of the master to wait some length of time under such a contract, although, what length of time would be reasonable would, of course, depend upon the necessities of the master, as suggested by Mr. Wood in the passage which I have quoted from his treatise. (See, also, Turner v. Kouwenhoven, 100 N. Y. 115.) ;

It is urged in behalf of the appellant that the necessities of his-business in fhe present case, in the season preceding Easter, when there is an exceptional demand for millinery, were such as to justify him in discharging the plaintiff as summarily as he did ; but this was a question of fact for the trial judge, and in view of the proof as to the manner in which the plaintiff was dismissed, by summoning a policeman to eject her from the defendant’s premises, it cán hardly be held that the court below was wrong in concluding that the defendant was actuated by some motive other than inconvenience to his business interests.

The proof showed that the plaintiff earned $36 after her dismissal and before the end of the three months for which she was employed. Tins amount should have been deducted from the $144 damages awarded to her-by the trial court. The judgment should be modified . by reducing it accordingly, and as thus modified, affirmed.

. Jenks, Rich and Miller, JJ., ' concurred; Hooker, J., not voting.

Judgment of the Municipal Court modified by deducting the sum of thirty-six dollars therefrom, and as thus modified affirmed, without costs of this appeal to either party.  