
    Abraham Graff and Bennie Frankel, Appellants, v. Jacob Blumberg, Respondent.
    (Supreme Court, Appellate Term,
    March, 1907.)
    Master and servant — The relation — Actions for wrongful discharge — Presumptions and burden of proof — Seeking other employment.
    In an action to recover damages for the breach of a contract of employment, the plaintiff is not required to show affirmatively, as part of his case, that he sought other employment but could not find it; that he found other employment elsewhere, or refused similar employment when, offered, or that he might have found such employment, is matter of defense.
    Appeal by the plaintiffs from a judgment in- favor of the defendant rendered in the Municipal Court of the city of ¡New York, twelfth district, borough of Manhattan.
    Joseph M. Herzberg, for appellants.
    Herman S. Fried, for respondent.
   Gildersleeve, J.

The complaint alleges that plaintiffs are copartners in business; that, on or about September 17, 1906, plaintiffs and defendant made an agreement whereby the plaintiffs undertook to render their services to defendant for the alteration, repairing and pressing of all garments which defendant should send them for such purposes, from September 17, 1906, to January 1, 1907, in consideration whereof defendant' agreed to pay them for their services at the rate of twelve dollars each week, and to pay in addition thereto for all findings supplied by said plaintiffs on such garments; that plaintiffs entered on the performance of said agreement and duly discharged all the duties thereof, until October 29, 1906, and have ever since been and still are ready and willing to perform all the conditions of said agreement on their part; that defendant then (on October twenty-ninth) refused and still refuses to allow them so to do or to ¡jay them therefor, to their damage in the sum of $121.92, for which sum, together with costs, plaintiffs demand judgment. In their bill of particulars plaintiffs itemize their damage as follows:

“ Oct. 29, 1906, to Jan. 1, 1907, 9 weeks at

$12 per week........................ $108.00

Sept. 17 to Oct. 29, 6 weeks unpaid, $2..... 12.00

Findings supplied by plaintiffs on garments. 1.92

“ Total.......................... $121.92 ”

The answer is practically a general denial, except that, it admits that “ some understanding ” was entered into between the parties; and it counterclaims $27 by reason of an alleged failure of plaintiffs to do the work given to them by defendant-. One of the plaintiffs took the stand and testified: “ I xvorked some time before for the Lennox Co. (defendant) on a small salary, and he (Kahn, defendant’s manager) calls up on that day (Sept. 17, 1906) and made an agreement for $12 a week up to Jan. 1st for alterations, pressing and sewing, and to hold off $2 each week up to Jan. 1st, on account that we should not break the contract. The defendant said (as to the findings to be supplied on the garments) that we are supposed to be paid.” A memorandum written on defendant’s letter paper Avas introduced in evidence, Avhich is conceded to be signed by defendant’s manager, which memoiandum reads as íoIIoavs: “Sept. 17, 1906. We hereby agree to pay Mess. Graff & Frankel the sum of thirty (30) dollars, two (2) dollars extra each Aveek, from this date until Jan. 1, 1907, if said Graff & Frankel continue to do all our work, (alterations, pressing, &c.) satisfactorily during said time. sd. Lenox Olothing Co., Isidore Kahn, Mgr.” Plaintiffs further showed that they worked about four weeks after September seventeenth, were paid ten dollars a week, but were supposed to get twelve dollars, defendant taking off two dollars, and that defendant refused to give more work, although plaintiffs were ready and willing to do the work. At the end of plaintiffs’ testimony, the court dismissed the complaint- for failure of proof, without prejudice to the bringing of another action. As the complaint was dismissed on plaintiffs’ evidence alone, that evidence is entitled not only to belief, but to all favorable inferences that can reasonably he drawn therefrom. While the testimony cannot be regarded as entirely satisfactory, we think plaintiffs made out a prima facie case. The counsel for the appellants states lhat the reason given by the justice for dismissing the complaint was that the plaintiffs had not affirmatively shown lhat they had tried to find other employment and had been unable to find any. If this were the reason for'the dismissal, the learned justice fell into error. The plaintiffs were not bound to show affirmatively, as part of their direct case, that such employment was sought and could not be found. It was for the defendant, as part of the defense, to show either lhat the plaintiffs had found employment elsewhere, or that other and similar employment had been offered and declined, or that such employment might have been found. In an action to recover damages for the breach of a contract, the plaintiff is, prima facie, damaged to the extent of the amount stipulated to he paid. Howard v. Daly, 61 N. Y. 362, 371; Milage v. Woodward, 186 id. 252. The court in the case of Milage v. Woodward, supra, further stated: “ Upon broach by an employer of a contract of employment, by discharge of the employee before the expiration of his term of service, the latter is only bound to use reasonable diligence to procure other employment of the same kind in order lo relieve the employer as much as possible from loss consequent upon the breach; ho is not bound to look for or accept occupation of another kind. (Fuchs v. Koerner, 107 N. Y. 529.) It is clear that the defendant did not sustain the burden of p'oof resting upon him to show that the plaintiff found or could have found employment elsewhere

We think in the interests of justice a new trial should be granted.

Davis and Hendrick, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.  