
    Stephen A. Fallon, Respondent, v. Frederick M. Farber, Appellant.
    (Supreme Court, Appellate Term,
    February, 1900.)
    1. Services — Remedy for services after discharge is by action for breach.
    Where a servant is wrongfully discharged before the contract term of employment has expired, his remedy for his services after the discharge is upon a breach of the contract and not by an action for wages.
    
      2. Same — Tender.
    A tender to the plaintiff of the amount subsequently found due and costs, made before trial and kept good by payment into court, is a defense which entitles the defendant to judgment.
    Appeal from a judgment rendered in favor of the plaintiff in the Municipal Court of the city of New York, first district, borough of Manhattan.
    Alexander & Colby, for appellant.
    Black, Olcott, Gruber & Bonynge, for respondent.
   O’Gorman, J.

This action was brought to recover salary for the. months of February and March, 1899, under a yearly agreement between the parties, made under date of December 22, 1898. Proof was offered by the defendant tending to show a resignation by the plaintiff on March 14, 1899. This evidence was sharply controverted, but-it is undisputed that the plaintiff’s services were not accepted by the defendant after that date. Even if the plaintiff’s version of that transaction were to prevail, he would be confined in his recovery, under his pleading, to compensation for services actually performed. If he was discharged, and his evidence would support such a conclusion, his remedy for the period subsequent to March 14, 1899, was by an action for damages for breach of contract. Howard v. Daly, 61 N. Y. 362; Perry v. Dickerson, 85 id. 341. As the defendant made a sufficient tender before trial of the amount due for services actually performed, with costs, and kept the tender good by paying the same into court, there should have been judgment for the defendant. Schmidt v. Hoffman, 18 Misc. Rep. 225. When this case was previously before this court, it was found that the tender was insufficient because of the failure of the defendant to pay the amount so tendered into court. Fallon v. Faxber, 28 Misc. Rep. 197. The record now before us, however, contains a stipulation signed by the attorneys for both parties, admitting that the amount tendered was duly paid into court, and waiving all objections to the sufficiency and validity of such tender.

Judgment reversed, with costs to appellant, and judgment ordered for the defendant, with costs after tender.

Beekman, P. J., and Giegerich, J., concur.

Judgment reversed, with costs to appellant, and judgment ordered for defendant, with costs after tender.  