
    William Sigmon, Appellant, v. Julius Goldstone and Others, Copartners, Doing Business Under the Firm Name and Style of J. & F. Goldstone & Company, Respondents.
    First Department,
    December 28, 1906.
    Master and servant — contract of employment — evidence showing breach of contract by master.
    When in an action by a servant against his master for the breach of a written agreement employing him as a designer and foreman for twenty-one months at a weekly salary, the plaintiff shows that there was friction between the parties and that the defendant instead of permitting him to work compelled him to sit in a dark room unemployed and ordered the plaintiff and his attorney to “get out ” of the work shop while a discussion of the treatment was in progress, it is for the jury to say whether the command to. get out was addressed to the plaintiff as well as to his attorney and was intended to operate as a discharge. x
    No precise words are necessary to constitute a discharge. Any language by which an employee is notified that his services are not required is sufficient.
    When under the contract the master retained a portion of the plaintiff’s wages as a guaranty of faithful performance, since the servant is justified injtbandoning his employment bv the master refusing to permit him to labor in the manner provided in the contract, he is entitled to recover the portion of the wages^ thus withheld' and a nonsuit is error. '
    Appeal by the plaintiff, William Sigmon, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the; 19th day of January, 1906, upon the dismissal of the complaint by direction of the court after a trial át the New York Trial Term.
    
      Jacob Manheim, for the appellant.
    
      Jacob Rieger, for the respondents.
   Houghton, J.:

.The plaintiff entered into an agreement in writing with the defendants, who are copartners, to serve them in the capacity of designer, pattern cutter and foreman for the term of twenty-one months at a stipulated weekly salary. The plaintiff continued in the employ of the defendants for a little over twelve months when, as he claims, the defendants wrongfully discharged him. He brings this action for damages for such breach of. hiring. The defense is breach of the contract on the part of plaintiff, and that he voluntarily quit defendants’ service.

The record discloses that for some weeks prior to the alleged discharge considerable friction existed between the plaintiff and the defendants, and instead of permitting him to do the work ¡for which he was hired they compelled him to sit during working hours in a dark room unemployed. This the plaintiff protested against and consulted a lawyer who waited upon the defendants at their place of business and he and the plaintiff. had an interview with one of ' the partners with respect to such alleged improper treatment. The plaintiff testifies that at the close of this interview such partner told both himself and the lawyer to get out of defendants’ place of business. Thereupon the lawyer told plaintiff to come' with him and both departed. On the same day-plaintiff through his attorney, by letter, notified the defendants that lie had tendered his services according to the contract. Ho offer to take the plaintiff .back was made.

The attorney who represented the plaintiff at the interview with defendants was sworn as a witness and the learned trial court seems to have been led into the granting of a motion for nonsuit because the attorney would not swear positively that the command to get out of defendants’ place of business was addressed specifically to the plaintiff. The attorney did testify that the command to get out of here ” was addressed to both himself and the plaintiff. The jfiaintiff, however, testified that the language was “ get * "* * out of here, both of you.” In view of the testimony of the plaintiff that the defendants had endeavored to induce him to abandon his contract for a small money consideration, and the friction, that existed and the1 apparent anger on' the part of defendants that the plaintiff had consulted an attorney, we think it was clearly a question for the jury to say whether the command to get out of defendants’ place of business was addressed to the plaintiff as. well as to his attorney.

Ho precise .words are necessary to constitute a discharge. Any language by which an employee is notified that his services are no longer required is sufficient to operate as.such. (Arnold v. Adams, 27 App. Div. 345; Coy v. Martin, 29 id. 418; Ryan v. Mayor, 154 N. Y. 828.) Whether the defendants did or meant to discharge plaintiff, or whether their- language and conduct was such as to reasonably lead jilaintiff to believe that he was discharged was for the jury to determine from all the facts and circumstances.

By the contract in question the defendants retained in their hands five dollars per week of plaintiff’s wages as a guaranty of faithful performance, on his part. There had been an adjustment of this deposit, but at the time of the alleged discharge there remained in the hands of the defendants the sum of seventy dollars. Even if the plaintiff was not in fact discharged, as the record now appears, he would be entitled to, recover this sum which he seeks by the ‘second cause of action alleged in his complaint. A servant may abandon his service because of a breach of any of the express or implied provisions of his contract without liability for damages, as where the master assaults him or refuses to pay his wages as agreed or requires him to perform services not contemplated by his com tract of hiring, or does any act or is guilty of any negligence prejudipial to the morals, reasonable comfort, safety, health or reputation of the servant, which is in violation of the provisions of the contract of hiring, express or implied. (Wood Mast. & Serv. [2d ed.] § 148.) The contract between-plaintiff and defendants was that he should serve in the capacity of designer and cutter and foreman of defendants’ manufacturing establishment at a salary. comparatively ■ •large. (In' order_thereaf ter to command this salary or a, higher one plaintiff must continue to be skillful and to enjoy a reputation for skill. It was one of the implied covenants of plaintiff’s contract that he should be permitted to- labor in the manner specified. It was a breach of this covenant for the defendants, without cause, to prohibit the plaintiff from doing any work and to shut him up in a dark roóm doing: nothing, notwithstanding they continued to pay his weekly salary. This breach on the part of defendants entitled the plaintiff, prima faoie, to recover the seventy dollars in their hands irrespective of whether or not he had any further action for breach of contract because of a wrongful discharge.

A nonsuit was, therefore, improper, not only on the ground that it was a question for the jury as to whether or not plaintiff had been discharged, but because plaintiff showed that there had been a breach on the part of defendants sufficient to relieve him from damages under his contract of hiring whether he was discharged or not. Upon both issues the plaintiff showed sufficient facts to put the defendants to their proofs and the judgment must, therefore, be reversed and new trial ordered, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment reversed and new trial ordered, with costs to appellant to abide event. Order filed.  