
    Daniel Tullis, Resp't, v. Samuel W. Hassell, App'lt.
    
      (New York Superior Court, General Term,
    
    
      Filed May 2, 1887.)
    
    1. Master and servant—Damages for unreasonable discharge of SERVANT BEFORE EXPIRATION OF TERM.
    Where an employee contracting to give his entire time is required by the master to attend at the office at certain hours, and disobeys that command, it is error to submit to the jury the question of the reasonableness, of the command.
    2. Same.
    Wages due at the time of the discharge form no element of damages, and cannot be recovered in an action for damages.
    On the second of February, 1886, the defendant employed the plaintiff on a salary, under a written agreement, by which the plaintiff was “to give all his time and best efforts to the business.” On March twenty-seventh, the defendant notified the plaintiff, in writing, that he was to report at the office at nine o’clock in the morning, and between five and six in the afternoon. The plaintiff disobeyed the direction as to attendance, and offered the excuse that he could not obey the requirements and attend properly to the business, and the court submitted to the jury the question as to the reasonableness of this requirement.
    The defendant, at the close of the case, moved to dismiss the complaint on the ground that the contract required the plaintiff to give all his time _ to the business. That the defendant had a right to require him to make any definite disposition of such time, under the terms of the contract, ana that there was no question of the reasonableness or unreasonableness of the requirement to go to the jury. The motion was denied.
    The jury were instructed under defendant’s exception that they might find as a part of the damages, salary due at the time of the discharge.
    
      James B. Dill (Dill, Chandler & Seymour), for app'lt,
    argued, first, the complaint should have been dismissed, because the plaintiff wilfully disobeyed the lawful commands of the defendant. There was no question of the reasonableness of the command to be submitted to the jury. It was simply a question of the construction of the contract; the plaintiff having contracted to give his entire time, the defendant had a right to dispose of that time as he saw fit. .Second, it was error for the court to charge the jury that they might include in the damages any wages due at the time of the discharge. This was an action for damages. Previous wages constitute a separate and distinct action on contract. Howard v. Daly, 61 N. Y., 369.
    
      William B. Tuls, for resp’t,
    argued that the plaintiff did not disobey any reasonable request of the defendant. Turner v. Kouwenhoven, 100 N. Y., 120. Whether the regulation was reasonable, should be submitted to the jury. Wise v. Wilson, 1st Carr & K., 662. The damages include unpaid wages. Paine v. Howell, 90 N. 660
   Sedgwick, J.

The action was for damages for a wrongful discharge of plaintiff by defendant, who had employed plaintiff under a written contract. The defendant hired the plaintiff for six months from February fifteenth, " as soliciting employee in the business of printing and publishing carried on by said Hassell. * * * The said Tullis is to give all his time and his best efforts to the business, and the said Hassell agrees to pay the said Tullis therefor thirty dollars a week.”

The complaint charges that pursuant to said agreement plaintiff had rendered service to the defendant until April 13, 1886, when defendant wrongfully discharged the plaintiff to his damage in the sum of $580.

On March twenty-seven the defendant wrote to the plaintiff that he was dissatisfied with the way in which the plaintiff performed his services; that the business done by the plaintiff amounted to only seven dollars in the last month; that the plaintiff did not report at the office. The letter continued, “unless you are willing to render me reasonable return for your salary I shall discharge you on April 10th next; meanwhile and hereafter I desire you to report at the office every morning at nine o’clock, and again between five and six o’clock p. m., and report the work you have done during each day.”

The plaintiff disobeyed the direction of this letter as to attendance at the office, intentionally, going there irregularly at later hours in the morning and not every day. The disregard of the instructions was habitual, and for this cause, on April thirteenth, he was discharged.

The excuse he gave on the stand for his conduct was, that to be at the office at nine a. m. and five p. m., would prevent his getting business for the defendant. The defendant persisted in requiring him to attend.

Against the objection of the defendant the jury were instructed to find whether the command óf the defendant was reasonable.

I am of opinion that the command was of a kind that .the defendant might give at his pleasure, whether it was for his interest or not. The plaintiff had no legal interest in the way in which he should dispose of his time. He was not paid according to the business he should bring to the defendant. The defendant had the right to require the plaintiff to use the time contracted for, as the defendant thought best, provided such use had any relation whatever to the business of soliciting advertisements and of instructions in respect of it and reports of results.

For this reason the jury could not competently find that the command was unreasonable. The defendant was entitled to a dismissal of the complaint on the ground that the plaintiff was not wrongfully discharged.

I also think that the plaintiff was not, under any circumstances, entitled in this action to recover for wages falling due before the alleged wrongful discharge.

The judgment and order appealed from should be reversed and new trial ordered, with costs to abide event.

Freedman. J. concurs.  