
    Philip Levine and Wolf Kolodkin, Respondents, v. Isidor Rosenschein, Appellant.
    Second Department,
    October 8, 1909.
    Master and servant—breach of contract of employment — evidence — mitigation of damages — appeal — submission to jury on erroneous theory.
    Action against a master to recover for the breach of a- contract of employment. The plaintiffs entered into a contract with the defendant whereby they were to press all garments manufactured by him for a definite period. Evidence examined, and held, that it was for the jury to say whether the contract required the personal services of the plaintiffs even though they employed other persons to assist them in the work.
    As the jury might have found that the contract was one for personal services, it was error to exclude evidence of the earnings of the plaintiffs between the time of their discharge and'the time set for the expiration of the contract offered in mitigation of damages.
    Such evidence should not be excluded, even if the defendant did not allege that the plaintiffs secured or might have secured employment after their discharge, if the evidence was not objected to on that ground. Moreover, if such objection had been taken, the defendant might have been allowed to amend.
    Where a case has been submitted to the jury on an erroneous theory, the appellate court may reverse, although there be no exception.
    Rich, J., dissented.
    Appeal by the defendant, Isidor Bosenschein, from a judgment of the Supreme Court in favor of- the plaintiffs, entered in the office of the clerk of the county of Kings on the 26th day of January, 1909, upon the verdict of a jury, and also from an ordei entered in said clerk’s office on the 25tli day of January, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Daniel W. Blumenthal [Maurice B. Blumenthal, with him on the brief], for the appellant.
    
      Jacob Manheim [Harry A. Gordon with him on the brief], for the respondents.
   Burr, J.:

The defendant is engaged in the business of manufacturing ladies’ cloaks and suits., The plaintiffs claim that on the 28th day of March, 1905, the defendant made a contract with them for a definite term relative to pressing the garments which he manufactured. Upon conflicting evidence the jury have found that the contract was to expire on January 1, 1906, and that the defendant was responsible for a breach thereof, which occurred on the 8th day of April, 1905. We should not disturb the judgment entered in accordance with such findings were it not that the case was submitted to the jury on an erroneous theory and competent evidence was improperly excluded. One of the questions in the case was as to the nature of the contract. Was it a contract for the personal services of the plaintiffs, or was it a contract through which'a certain result was to be obtained for the defendant, to wit, that the garments which he manufactured should be pressed, irrespective of any personal service of the plaintiffs % If the former, then this judgment must be reversed because the learned trial justice excluded testimony offered by the defendant in mitigation of damages as to the personal earnings of the plaintiffs in the interval between the date of the breach of the contract and the date of its expiration. (Howard v. Daly, 61 N. Y. 362; Milage v. Woodward, 186 id. 252.) That the contract involved the rendition of personal services by the 'plaintiffs to the entire extent of their time, although they might be assisted in such service by others, seetns perfectly clear from the complaint, from the testimony of the plaintiffs respecting both the hiring and the discharge, and the practical construction put upon the contract as evidenced by the conduct of the trial on plaintiffs’ part. The complaint alleges that the defendant agreed, to “ employ the plaintiffs exclusively to do all the pressing of garments manufactured by the defendant; ” that such pressing was to be done by the plaintiffs and by pressers employed by and to be paid by them, and under their supeniision.” It further alleges that the plaintiffs “ did enter the employ of the defendant * '* and continued in said employ and rendered said services to and for the defendant;” that defendant “ wrongfully discharged the plaintiffs from his employ and refused to permit the plaintiffs to longer remain in his employ,” and that said “ plaintiffs were ready, willing and able and offered to continue in said employ and to render said services.” It appeared from plaintiffs’ testimony that they were employed by the defendant originally on November 1, 1904, “ to stay with him and make his work, all the pressing work * * * in his factory.” The defendant furnished the place to work in his own factory, the tables upon which the work was done, the irons, the heat, and everything ip the shape of tools except some small cushions to hold the irons, which the plaintiffs furnished. Plaintiffs further testified that on the twenty-eighth of March they told the defendant that they had an offer to take u this position to do the pressing work ” for another firm, and that the defendant said that he wanted them to remain with him until January 1, 1906, and as an inducement to them to remain he agreed that whereas before he had caused certain of the work to be done outside of the factory and by others, he would now have it all done in the factory and by them. The plaintiffs further testified that on the seventh of April the superintendent came to them in the factory and told them that they were discharged, and that the next day the defendant ordered them out of the factory. The reason given for their discharge, according to the plaintiffs, is that the superintendent wished to put a friend of his in the position, while the defendant claims that it was on account of the quarrelsome disposition of the plaintiffs. On the trial plaintiffs’ counsel began to interrogate one of the plaintiffs as to what other employment he had been able to obtain during the term of the contract and after its breach, and only desistéd when checked by the court. It is true that the burden of showing this résted not on the plaintiffs but on the defendant (Howard v. Daly, supra), but this shows quite clearly what counsel for the plaintiffs considered the nature of the cntract to be. If the contract did not involve the personal services of the plaintiffs, it is difficult to see what object there was in making the contract of March twenty-eighth, .or why the fact that the plaintiffs had received an offer of work elsewhere should have been made the cause for entering into an agreement that the plaintiffs should reject that offer and remain with defendant for an additional period of nine months. The plaintiffs could have taken that contract with the other firm and at the same time done work for the defendant. If the other firm did require the personal services of the plaintiffs, then, according to the theory adopted by the learned trial justice, they could have performed all of the work for the defendant through subordinates and accepted both contracts. It was at least a question of fact for the jury whether their agreement with the defendant did not include their personal services to the full extent thereof. ' If it did, then the court erred in excluding the testimony offered. The fact that the contract included not only the personal services of the plaintiffs but those of others will not absolve the plaintiffs, in the case of a breach by the defendant, from the duty and obligation to reasonably reduce the damages resulting therefrom (Milage v. Woodward, supra), and evidence as to the extent of earnings by the personal service of the plaintiffs was competem in mitigation of such damages. If it should be claimed that as the defendant did not plead as a partial defense and in mitigation of damages that the plaintiffs had secured or might have secured employment elsewhere, it is sufficient to say that the evidence was not objected to on that ground. If it had been, the defendant might have been allowed to amend. The case was submitted to the jury on an erroneous theory. Under such circumstances we may reverse, even in the absence of an exception. (Alden v. Knights of Maccabees, 178 N. Y. 535.)

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

Hirschberg, P. J., Jenks and Miller, JJ., concurred; Rich, J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event.  