
    William A. Murray, Respondent, v. John J. O’Donohue, Appellant.
    First Department,
    December, 1905.
    'Complaint—when complaint states action' for breach of contract of employment and. not an action for wages — not necessary to allege performance-by plaintiff in .such action—wages as measure of damage. — charge;
    A complaint which alleges a contract of employment to run a drug store at a certain salary with a percentage of the profits; and that the defendant wrongfully discharged the plaintiff and has since prevented him from performing his part of the agreement, notwithstanding; the- plaintiff tendered his services,' and which sets out the amount of plaintiff’s salary for the period of the1 contract subsequent to the breach, and alleges that plaintiff has suffered damage in that sum, sets' out an action for damages for a breach of contract and not an action to recover wages; •'
    Though, in an action for wages, an. allegation that, the services: were rendered is necessary, such allegation is not necessary in. an action for damages for breach of contract, of employment.
    In such action for breach of contract, it is proper to set out the amount, of plaintiff’s salary subsequent to- the breach, as, prima facie, it is the measure of damage. I ;
    Though it is error to- charge that if the jury find that, the defendant, employed the plaintiff after knowledge of bis disobedience to orders and his intoxication, the defendant is precluded from urging the same as a justification, such error is cured by a subsequent charge that the question 'of condonation under such circumstances is for the, jury, when the main charge was1 tmthe same1 effect.
    . Appeal by the defendant, John J. O'Donohue, from a judgment ■of the Supreme Court in. favor of the plaintiff, entered in the office •of the clerk of the county of ¡New York on the 3d day of March, 1905, upon the verdict of a jury, and also from an order entered in ■said clerk’s office on the 2d day of March, 1905, denying, the •defendant’s motion for a new trial made upon the minutes.
    H. Aplington, for the appellant.,
    
      George H. Taylor, Jr., for the respondent.
   Clarke, J.:

The complaint alleges that the jdaintiff and defendant, on the 1st •of April, 1902, entered into an agreement whereby the defendant •employed the plaintiff as a general manager of defendant’s store at Rye, N. Y., for the term of one year at the yearly salary of $1,500- and ten per cent additional on the yearly net profits of the business, at said store; that plaintiff entered into the employment and performed all the terms and conditions to be performed by him under the agreement from April 1, 1902, to July 1, 1902; that on the 1st. of July, 1902, the defendant paid the plaintiff for bis services up to-the 1st of July, 1902, “and wrongfully and without just or reasonable cause therefor discharged the plaintiff, and'since that time has. prevented the plaintiff from performing his part of the said agreement, notwithstanding the plaintiff duly tendered his services to the defendant- according to said agreement; * * * that for the nine remaining months of said agreement the sum of Eleven hundred and twenty-five ($1,125) dollars became’due and payable to the plaintiff as salary, and with the net profits due the plaintiff as aforesaid, the plaintiff has suffered damages in the sum of Fifteen hundred and twenty-five ($1,5-25) dollars.”

The action was commenced August 28, 1902, and was tried on February 23, 24 and 27, 1905, resulting in a verdict for the plaintiff' of $812. All question as to the alleged agreement as to ten per cent of the net profits additional ¡compensation was withdrawn. At. the close of the plaintiff’s ease the defendant moved for a dismissal on various grounds, among others: “ The evidence produced on the trial-herein is not sufficient to sustain a cause of action; ” and “ the. plaintiff having in open court withdrawn that part of his complaint, for commissions, and it appearing that his claim is for salary only, the complaint does not state a cause of action,” and renewed said motion at the close of the whole case and duly excepted to tlie¡ denial of the motion. The question is, therefore, squarely raised as to whether the complaint will sustain the recovery.

Undoubtedly an action for salaiy is based upon the theory that, the work has actually been performed. It is equally clear that, where a valid contract of employment is broken by an improper-discharge during the term, the servant has an immediate cause of action for damages for the breach of contract, and thatprima faoie the' amount thereof is a sum .equal to the stipulated amount unless, the defendant s-honkl give evidence in mitigation of damages. (Howard v. Daly, 61 N. Y. 362, 374.) It is plain, although the-complaint is in artificially drawn, that the action is for damages for breach of contract, and not for salary-or wages.. To sustain such ah action, an averment of the performance of the services would be necessary. In Weed v. Burt (78 N. Y. 192),. Judge. Folger said::' “This action is brought to recover wages alleged to be due to the plairitiff for his services for the defendant as bookkeeper for him for a term stated in the complaint as agreed iipon between them. The complaint alleged, a hiring for a year, salary payable monthly, It appears, however, that the plaintiff did not render service for ' that term. So" far from so doing he was dismissed from the defendant’s employment at a daté earlier than the beginning of the time alleged in the' complaint as that for which the wages are alleged to be due; and for a. part of that timé he served other folks and took from them his hire therefor. On that showing his action should ■ not be for wages, but for damages for not being continued in service as was agreed.. (Howard v. Daly, 61 N. Y. 862, and cases there cited,) '■ Thé plaintiff neither performed services, nor made tender of performance. Tie may not on such state of facts recover for wages.' If he has cause of action, it is for the damages he-has. been, put to by not being let to go on with his. service.”

In the case at bar, thé plaintiff clearly sets up matter showing that it is for the breach of the contract that he sues, and not for payment of performance under it. He alleges the. defendant. “ wrongfully • and without just or .reasonable cause therefor discharged the plaintiff, and since that time has prevented the plaintiff from performing his part of the said agreement, notwithstanding-the plaintiff duly tendered his services to" the defendant according to said agreement.” He then states the amount of salary' for the nine months remaining of his contract and states “the.,plaintiff has suffered damages in the sum,” etc. All of these allegations are 'appropriate and sufficient to set forth a cause of action for damages for breach of contract of employment, The amount of .the salary was properly stated, as prima facie that was tlie worth of his com tract and .the measure of Ins damage. Therefore,, the denial of the motion, was proper. Upon the trial the complaint was treated as for damages as for a breach, evidence being introduced as to plaintiff’s employment,otherwise during the period, and whether or no he had earned or' might have- earned moneys applicable to the reduction of damages; and the learned court In his charge clearly laid down the rule as to the measure of damages upon that theory of the case.

As another ground for reversal, the appellant complains of a portion of the charge to the jury. As a defense to the action, the defendant pleaded justification for the discharge of the plaintiff and set forth in an amendment to the answer, allowed upon the trial, refusal to obey specific orders and misconduct and intoxication. The learned court, in his charge, carefully, explicitly and correctly laid down at length the rules of law governing such a defense, and also as to whether or not such offenses, if they had been committed, had been condoned. A considerable portion of his charge was occupied with this subject, and again and again he instructed the jury that the determination of those questions was for them. At the close of the charge the court charged a request as' follows: If the jury find from the evidence that the defendant continued the plaintiff in his employment after lie had become cognizant that the plaintiff had disobeyed his orders, if he did so disobey them, and became cognizant with all the facts connected with plaintiff’s intoxi-' cation, if he ever was intoxicated, the fact of such continuance of employment after such knowledge by the defendant amounted to a condonation of the offense, if any, and precludes the defendant from urging the same as a ground justifying the plaintiff’s discharge from his employment.” The effect of this request, of course, was to take from the jury the very question as to condonation which in another part of the charge had been most fully and carefully committed to them. That the learned court fell inadvertently into a momentary error is quite obvious from the record, for the very next moment counsel said: I except to that portion of your Honor’s charge in which you say that if the jury find the plaintiff guilty of one act of' intoxication, one act of disobedience, one act of incompetence, they may find for the defendant, and I ask your Honor to charge that if they find that the plaintiff’s services continued after those instances with the knowledge that he had been guilty of disobedience, then in that event it is for the jury to determine whether the acts were condoned. The Court; I so charge.” We are of opinion, in view of the main chargé, that the error pointed out was cured by this latest statement of the court, and that, therefore, there was not reversible error.

We .have examined the other .matters pointed out by appellant, bnt find no reason in any of them to disturb this judgment. The judgment and order should he affirmed, with costs.

O’Brien, P. J.,Patterson and Houghton, JJ., concurred.

McLaughlin, J. (concurring):

I concur in the opinion of Mr, Justice Clarke that the judgment should be .affirmed and that the stipulated salary agreed to be paid is grima faoie the measure of damages, even though the action were commenced before the -expiration of the term of service, inasmuch as the trial did not occur- until after the expiration thereof. (See Everson v. Powers, 89 N. Y. 527.) The alleged -errors in the charge could not have misled the jury, when such instructions were considered in connection with the main charge and the final instruction on that subject.

Judgment and order affirmed, with costs.  