
    Etoile De Loraz, Resp't, v. Fanny Davenport McDowell, App'lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 17, 1893.)
    
    Master and servant—Breach of contract—Subsequent offer of employment.
    It is no defense to an action for breach of a contract of employment as an actress for a term of twenty-eight weeks that defendant, subsequent to the discharge, offered employment to plaintiff “ for her season,” where she at the same time refused to bind herself for twenty-eight weeks or any definite time, although proper to be considered on the question of damages.
    Appeal from judgment entered, on verdict directed by the court, and from order denying motion for new trial.
    
      I. M. & A. J. Dittenhoefer, for app'lt; George M. Pinney, Jr., for resp't.
   O'Brien J.

This action was brought to recover damages for breach of a contract of employment Plaintiff was engaged by the defendant in London, in August, 1890, to perform in the United States the part of “ Iras ” in the play of “ Cleopatra,” for a season of twenty-eight weeks, commencing October 21, 1890. She was discharged on the 18th of August, whereupon this action followed, claim being made for her salary for the entire twenty-eight weeks. The engagement and discharge were not contested on the trial, but, as a defense, evidence was introduced to show that, subsequent to the breach, defendant requested the plaintiff to come from England to this country, upon an offer to take parts in plays other than “Cleopatra,” until such time as the latter was produced. This offer was cabled to plaintiff, and agreed to, provided the engagement should be for twenty-eight weeks certain ; and thereupon the position of the defendant was defined in a letter from the counsel of the defendant, to the counsel for the plaintiff, as follows:

11 Without acknowledging an agreement, and for the purpose of avoiding litigation, Miss Davenport will take Miss De Loraz for her season commencing about the 28th of October, on the terms and salary Miss Davenport informed Miss De Loraz she would be willing to execute an agreement. She will not bind herself to 28 weeks, tllough the prospect is that the season may last that long. She is to appear in such plays as Miss Davenport may produce prior to ‘ Cleopatra,’ and subsequently in 1 Cleopatra.’ ”

The respective positions of the parties at this date, therefore, were that the plaintiff was willing to modify the agreement so as to take part in plays other than “ Cleopatra,” provided the engagement was for the same definite period of 28 weeks. Defendant, however, refused to make the engagement for 28 weeks certain, as was provided in the original agreement, or to name any definite time for the duration of the proposed new engagement. This being the condition of the evidence at the close of the case, the defendant moved for a direction of a verdict in her favor, which was denied, and subsequently the plaintiff moved for a verdict, which was granted. No request was made by the defendant to go to the jury upon any question whatever, the case being treated by her and her counsel as raising only a question of iaw, to be passed upon by the court. It remains, therefore, for us to determine upon this record whether the indefinite offer made by defendant is a defense to the plaintiff’s entire cause of action; for the defendant, having treated the question as one of law only, and having made no request to be allowed to go to the jury, cannot now urge her offer in mitigation of the damages, as distinguished from a complete defense. The learned trial judge, in disposing of the case, said:

The defendant's season might not have lasted long enough to reimburse the plaintiff for her passage money. The plaintiff was willing to come for the originally stipulated period ; but this the defendant refused; and the offer was not even for a less period definitely specified, but for the defendant's season, which might have been long or short, according to the defendant’s success or caprice.”

Whitmarsh v. Littlefield, 46 Hun, 418; 11 St. Rep., 815, holds that no duty is imposed upon one complaining of a breach of a contract to surrender all his rights under his agreement, and accept a new and different contract, with a view to reduce the damages. The rule of law contended for by the appellant is undoubtedly sound that, when a servant is wrongfully discharged, he must make reasonable efforts to obtain other employment, and credit the master with the amount earned by him in reduction of damages. He is not bound to accept employment of a different character, though it need not necessarily be of exactly the same kind or at the same salary. No fault is to be found with this statement of the rule, but, upon the case as it is presented on appeal, it has no application. If the defendant, instead of moving for a verdict, had requested to go to the jury upon the damages, then there might be presented a situation calling for the application of the rule. As already noticed, however, the defendant did not rely upon the plaintiff’s refusal to accept another and different contract of employment as a plea in mitigation of the damages 'suffered by the plaintiff, but as an absolute defense to the entire cause of action. In other words, the defendant seeks to maintain that a contract for an indefinite period, terminable at her own will, is as good in the eye of the law as a contract for a certain definite period. This statement alone sufficiently disposes of appellant’s contention. Nor is there anything in the case of Bigelow v. Am. Forcite Powder Mfg. Co., 39 Hun, 599, which is in conflict with this view, or with the rule as laid down in Whitmarsh v. Littlefield, supra. We think, therefore, that, both sides having requested the court to pass upon any questions of fact that may have been in the case, and both having relied upon their right to have a verdict directed in their favor, and, as shown, the defendant not being entitled to have such motion granted, and no request having been made to go to the jury upon the question of damages, it was proper, upon the case as it then stood, for the court to direct a verdict for the plaintiff, and in this disposition we can find no error. As there are no other questions presented upon this appeal, the judgment must be affirmed, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.  