
    Ezra B. Fancher, Respondent, v. Bonifacio Pinon, Appellant.
    (City Court of New York, General Term,
    October, 1896.)
    Contract — Board and tuition — Damages.
    Where there is a breach of contract by the father of a pupil who is to be taught and instructed at a school, in that he withdrew his son from the school soon after the beginning of the second semester, the damages recoverable by the person conducting the school are prima facie the’ amount stipulated in the contract for the full term. While the law imposes upon the injured party the active duty of making reasonable exertions to render- the damage as small as possible, the burden is upon the plaintifE to show that the damages alleged to have been sustained could have been prevented, or that they were less than the contract price.
    Appeal by the defendant from a judgment entered on verdict in favor of the plaintiff..
    Coudert Bros., for appellant.
    J. R. Fancher, for respondent.
   Schuchman, J.

This is an appeal from a judgment recovered herein oñ a contract for tuition, board and incidentals furnished to Louis Pinon, the son of the defendant* while attending, as a boarding pupil, the school of the plaintiff situated at Yonkers, Westchester county, New York, during the school year of 1893 to 1894.

The plaintiff, in his complaint, alleges, and, at the trial, proved, a contract for the tuition and board of the defendant’s son, -for the school year beginning the 25th day of September, 1893, -and. ending on June 8, 1894, at $500, payable half yearly, in advance; the second installment being payable on February 1, 1894.

The defendant withdrew his son from said school on February 12 or 16, 1894. The plaintiff also proved that he furnished the defendant’s son clothing and other incidentals of the value of $123.40/

Defendant’s son was a pupil at plaintiff’s boarding school for two previous years, under the same agreement for said tuition and board and for incidentals.

The action is brought for a breach on the part of the defendant of said agreement for tuition, board, etc. The plaintiff and his ■wife were the only witnesses on the trial on behalf of the plaintiff.

. The defendant offered no evidence whatsoever,- and at the end of the trial made certain motions and requests to charge, which were denied by the Court and duly excepted to.

We have examined, these exceptions and the only one worthy of any notice is the one denying the request to charge: “ That the question involved is a question of damages and not a question of what the plaintiff is entitled to recover under the contract, and as this included board, and board not having heen furnished, the sole question before the- jury is what damages the plaintiff -sustained by reason of the defendant’s alleged failure to comply with-his contract.”

The damages in such an action for the breach of contract are prima facie the amount stipulated in the contract for the full term. Howard v. Daly, 61 N. Y. 362.

' The law, however, for wise reasons, imposes upon the party subjected to injury, by the breach of the contract, the active duty of making reasonable exertion to render the injury as light as possible.

Public interest and sound morality accord with' the law in demanding this. '

A party ought not to recover more than his actual damage, but the burden of-proving that the damages which have been sustained in such cases could have been prevented, unquestionably rests upon the party guilty of the breach of contract. Hamilton v. McPherson, 28 N. Y. 77.

In this case, therefore, the burden of proof was upon the defendant to show that the damage sustained on account of his breach of contract was less than the contract price; not having done so, the law gives him no remedy on this appeal and the ruling of "the judge at the trial was correct. Judgment affirmed, with costs,

Fitzsimous, J., concurs.

Judgment affirmed, with costs.  