
    Aaron M. Klaw, App’lt, v. Samuel W. Ehrich et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 14, 1894.)
    
    Hastes and sebvant—discharge.
    The evidence was held to he sufficient to require the submission to the jury of the question whether plaintiff was discharged from the defendants’ service.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.
    This action was begun April 11, 1892, by an employe against his employers, to recover damages for an alleged wrongful discharge from their service. The defendants are partners, under the firm name of Ehrich Bros., and are dealers in dry goods at the corner of Sixth avenue and Twenty-Third street, in the city of Hew York. On the 15th of December, 1891, the litigants entered .into a written contract, of which the following is a copy:
    “ Agreement made this fifteenth day of December, 1891, between Ehrich Brothers and Aaron M. Klaw. Ehrich Bros, agree to and hereby engage said A. M. Klaw as confidential clerk for the period of one year, commencing January 1, 1892, and terminating December 31, 1892; and further agree to pay him a salary of four thousand dollars ($4,000) per annum in equal monthly installments. Aaron M. Klaw agrees to and hereby accepts engagement as above, and further agrees to faithfully perform the duties of the position to the best of his ability, and to use all efforts to further the interests and business of said Ehrich Brothers. In witness whereof, we have hereunto attached our signatures, the day and date first above written.
    “Ehrich Bros.
    “Aaron M. Klaw.”
    On the 1st day of January, 1.892, the plaintiff, pursuant to this contract, entered defendants’ service as confidential clerk, and continued therein until April 1, 1892, when he left their service. He was paid for services under the contract $833.32, which is $166.-67 less than the amount due for three months’ services. Between April 1, 1892, and January 1, 1893, the plaintiff solicited, personally and by advertisements, other like employment, but failed to secure an engagement. The foregoing facts are alleged in the complaint, and admitted by the answer, except as to the amount paid and the seeking of employment elsewhere, which were testified to by the plaintiff, and not disputed. The plaintiff alleges in his-complaint that he was wrongfully discharged, and sustained damages by reason thereof to the amount of $3.166.67, the difference between the annual salary of $4,000 and the amount which had been paid to him. The defendants, by their answer, deny that they discharged the plaintiff, and allege that he voluntarily left their service about April 1, 1892, and has since that date refused to discharge his duties and perform the contract. The defendants also allege, by way of counterclaim, that the plaintiff has failed to perform his contract, to their damage in the sum of $5,-000, which allegation the plaintiff denied in his reply. No evidence was given in support of the counterclaim, the complaint being dismissed at the close of the plaintiff’s case, upon defendants’ motion. The plaintiff asked to have submitted to the jury the question whether he was wrongfully discharged by the defendants from their service, which was denied, and an exception taken.
    
      Morris J. Hirsch, for pl’ff; Samuel W. Weiss, for def’ts.
   Follett. J.

No exceptions were taken to the admission or exclusion of evidence, and the only questions presented on this motion are those raised by the plaintiff’s exceptions to the dismissal of the complaint and the refusal of the court to submit to the jury the question whether the plaintiff was discharged by the defendants. The plaintiff testified, and in this he was not disputed: My duties (from January 1 to April 1,1892) were to direct the interior working of the business, to see that the employes did their duties, and to take charge of the office and the office force of the employes in the office. On the 1st of April, 1892, Samuel W. Ehrich, one of the defendants, wrote the plaintiff, stating, in effect, that his services bad not been profitable, and, “ taking it altogether, as a question of self-interest, I feel as though it does not pay us to have you fill your present position, and I feel entirely too friendly towards you to have you sacrifice your time, with the knowledge that there is no future for you with us. So, if we can bring our relations to a close in a manner thoroughly pleasant and agreeable to yourself, I should like to do so.” On the following day, the plaintiff and Samuel W. Ehrich had an interview, in which he said to the plaintiff: “No; the expenses of the business are high. Mr. Leghorn is going to stay, and be superintendent, and I am going to put Mr. Mansfield in the office; and I am willing to make some sacrifice, but I want you to have the best of feeling towards the house, and think of me personally as a--of a good fellow.” Mr. Mansfield was the superintendent, and Mr. Leghorn was the assistant superintendent of defendants’ business. Later in the day of April 2d the defendants wrote the plaintiff as follows : Agreeable to our conversation of this afternoon, will you kindly get your memorandum, papers and desk ready to turn over to Mr. Mansfield on Monday.” On Monday another conversation occurred, in which the defendants said: “How will $500 strike you as a fair thing ?” The plaintiff replied that he preferred to carry out his contract, and on the same day he wrote the defendants to that effect. Later in the day, Samuel. W: Ehrich came to the plaintiff’s desk, and the following occurred: “I (Samuel W. Ehrich) want you to get your papers ready to give up your desk to Mr. Mansfield to-day.’ I (plaintiff) did not reply to that, and he went away. In the afternoon of that day, about five o’clock, Mr. Sporburg, one of the employes of the house, comes in, and said that Mr. Samuel W. Ehrich told him to tell me to give him the keys of my desk.” Later in the day, the plaintiff delivered to Mr. Samuel W. Ehrich the keys, who replied, “ All right." The next morning the plaintiff went to defendants’ store, and found Mr. Mansfield occupying th.e desk which he had previously occupied. On this occasion both parties spoke of taking legal advice, each claiming, to have a good case. On the 5th of April, the plhintiff consulted, counsel, who wrote the defendants, the letter being delivered by the plaintiff to Mr. Samuel W. Ehrich. On that occasion Mr. Ehrich said: “ You cannot occupy my office.” The plaintiff asked: “ What have you got for me to do ?” The defendant replied : “ I have nothing for you to do.” On the same day the plaintiff wrote the defendants, referring to the fact that he had been told that defendants had nothing for him to do. About this time the defendants consulted counsel, and, on the 7th of April, wrote the„plaintiff : “ I am willing to give you the work that your contract calls for, and will give you until to-morrow to present yourself, and return to work, arid do what you are told to do. If you do not by that time return to your duties, I shall conclude that you have no wish to do so, and prefer to earn your salary by means of a lawsuit rather than by work.” Other correspondence ensued between the 7th and 11th, which is not very important, as it, on the part of the plaintiff, simply shows that he was insisting that he had been discharged, and the defendants were insisting that he had not been. The litigants, under the advice of their"respective counsel, were maneuvering for advantageous legal positions. On the morning of the 11th the plaintiff called on the defendants, and the following conversation occurred: “ ‘I (Samuel W. Ehrich) have other and different work for you to do.’ I said: ‘Do you wish to restore me to my original position ?’ He said ; ‘ No; I have got other and different work for you to do; and, if you don’t want to do it, I think you want to make your money through Blumenstiel and Hirsch, instead of working for it. I will give-you until two o’clock to-day to consider.’ ” The plaintiff left the store, and has not been there since. Considerable other evidence was introduced in behalf of the plaintiff; and, taking it altogether, it seems to us that it was sufficient to require the submission to the jury of the question whether he was discharged from the defendants’ service, and that the court erred in refusing this request and in dismissing the complaint. The plaintiff’s' exceptions-should be sustained, and his motion for a new trial granted, with, costs to him to abide event. All concur.  