
    Louis Casper, Respondent, v. Albert Naef, Carrying on Business as Naef Brothers, Appellant.
    (Supreme Court, Appellate Term, First Department,
    May, 1913.)
    Contracts — of employment — evidence of expenses — action for wrongful discharge — measure of damages.
    Where a contract of employment provided that plaintiff should have a drawing account of $250 a month, which on final adjustment of his account should be deducted from the total of commissions earned, and, in an action for wrongful discharge, it is established that' out of the drawing account he was to pay his disbursements while traveling, the exclusion of evidence of the expenses incurred by plaintiff during the time | of his actual employment is error calling for the reversal of a judgment entered on a verdict in his favor, where the court had charged the jury that plaintiff was entitled to recover as salary the full amount of the drawing account for the unexpired term of seven months.
    The measure of plaintiff’s damages was the additional amount which the plaintiff would have received had the contract of employment been carried out.
    Appeal by the defendant from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury and also from an order denying a motion for a new trial.
    G-ennert & Gennert (Edmund L. Mooney and Henry G. Gennert, of counsel), for appellant.
    Blumenstiel & Blumenstiel (Edwin Blumenstiel, of counsel), for respondent.
   Guy, J.

Plaintiff, a salesman formerly in the employ of the defendant, sues to recover damages for wrongful discharge. The contract of employment provided that plaintiff should have a “drawing account” of $250 per month, which, on the final adjustment of his account with his employer, should be deducted from the total amount of commissions earned. The evidence established, and it was conceded upon the argument herein, that, though the contract does not definitely so state, the plaintiff was to pay out of the $250 so drawn by him monthly, his disbursements while traveling. A wrongful discharge was established by sufficient evidence to warrant a verdict for some amount in favor of the plaintiff, and the only question remaining on this appeal is whether plaintiff was entitled to recover $250 per month for the seven months of unexpired term, as salary, or whether his recovery should' be limited to the net income remaining to him out of said $250 per month, after deducting his traveling expenses, as based upon the average of such expenses for the months during -which he was actually in the employ of the defendant. The court held, and so charged the jury, that plaintiff was entitled to recover as salary the full amount of the “ drawing account,” $250 per month for the unexpired term of seven months, aud excluded evidence of expenses incurred by plaintiff during the time of his actual employment. Defendant duly excepted to this ruling. In so ruling, we think the learned court erred. The benefit plaintiff would have derived from his- contract, so far as the “ drawing account ’ ’ was concerned, had he not been discharged, would only have been the net amount remaining to him after the payment of traveling expenses, though, on competent proof, he" might be able to recover such commissions in excess of the drawing account as he would have earned under his contract, had he not been wrongfully discharged. Plaintiff could not in any event be entitled to be placed in a better position through the breach of the contract by defendant than he would have been in had he been retained in defendant’s employ. The measure of damage for breach of contract of employment is the loss of earnings, viz., the additional amount which the person wrongfully discharged would have received had the contract been carried out. The exclusion of evidence as to traveling expenses was, therefore, prejudicial error and necessitates a reversal of the judgment.

Gerard and Paige, JJ., concur.

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