
    Nina H. Dearing, Resp’t, v. Aylma Y. Pearson, App’lt.
    
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1894.)
    
    1. Appeal—Direction op verdict.
    In the absence oí an exception to the denial of a motion to dismiss the complaint or to direct a verdict, it cannot be urged on appeal that the evidence was insufficient to warrant the submission of the case to the jury.
    2. Same—New trial.
    Exception to denial of motion to set aside verdict and for new trial is not re viewable on appeal.
    3. Evidence—Secondary.
    Where the destruction of a letter is consistent with honest motives and done under a misapprehension concerning the importance of its preservation for future use, parol evidence is admissible to show its contents.
    
      4. Same.
    In such case, the appellate court will reverse the trial justice’s determination only when there is no evidence whatever, or no sufficient evidence, to support it.
    5. Same—Irrelevant.
    It is not error to exclude evidence inconsistent with the issue formed by the pleadings.
    6. Appeal—Curing error.
    An offer to admit excluded evidence, which is refused by the excepting party, will cure any error in its rejection, in the absence of possibility of harm or disadvantage.
    
      7. Same—Bequest to charge.
    A request to charge, winch involves a proposition which is not only irrelevant'but also inconsistent with the defense, is properly refused.
    8. Contract—Breach—Reinstatement.
    After the termination of a contract by a party’s breach thereof-, it cannot be>reinstated and the other party deprived of a cause of action, without mutual consent. .
    9. Same—Damages.
    The rule as to the subsequent offer of employment by the employer in order to reduce the damages, stated
    Appeal from a judgment of the general term of the city court of New York which affirmed a judgment for plaintiff, upon a verdict in her favor. Action to recover damages for plaintiff’s wrongful discharge from defendant’s employment under a contract for theatrical services.
    Smith, Bowman cb Glose, (Artemas B. Smith, of counsel), for app’lt; David Leventritl, for resp’t.
    
      
       Affirming 56 St. Rep. 901.
    
   Bischoff, J

The judgment of affirmance of the court below is conclusive upon us as to the weight of the evidence. Rowe v. Comley, 11 Daly , 318 ; Smith v. Pryor, 16 id. 169 ; 30 St. Rep. 553 ; Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep. 297; Paige v. Ghedsey, 4 Misc. R. 183 ; 53 St. Rep. 190 ; Meyers v. Cohn, 4 Misc. R 185 ; 53 St. Rep. 223. Defendant’s omission to move the dismissal of the complaint, or that a verdict be directed in his favor, was a concession that the evidence was sufficient to warrant its submission to the jury, Barrett v. Third Ave. R. Co., 45 N. Y. 628 ; and without any exception to the denial of either of such motions the contrary may not be urged on this appeal. Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep. 553 The exception taken to the denial of defendant’s motion to set aside the verdict, and for a new trial is not one which was taken upon, but after the trial, Code Civ. Pro. §§ 992, 995, and is therefore not reviewable on appeal. Matthews v. Meyberg, 63 N. Y. 656; Boos v. World Mut. Ins. Co., 64 id. 236 ; Grier v. Hazard, 39 St. Rep. 74; Carroll v. O’Shea, 2 Misc. R. 437; 51 St. Rep. 579 ; Meyers v. Cohn, 4 Misc. R. 185 ; 53 St. Rep. 223. There remain to be noticed only the exceptions which were taken to the trial justice’s rulings on the admission and exclusion of evidence and to his refusals to charge. The first exception was taken to the admission of plaintiff’s testimony concerning the contents of a letter received by her .from the defendant. This letter has a material bearing upon the issues litigated because it tended to corroborate plaintiff’s claim that her engagement was for the “ seasonPlaintiff testified that she was unable to produce the letter because she had destroyed it, and defendant objected to the admission of parol evidence of its contents, on the ground that the evidence was incompetent because it conceded that the destruction of the letter was the result of plaintiff’s voluntary and deliberate act A due consideration, however, of all the circumstances which appeared from the plaintiff’s testimony to have attended the destruction of the letter disclosed that, though the destruction was voluntary and intentional, it was, notwithstanding, within the province of the trial justice to admit the testimony objected to. Every one is chargeable with the knowledge that the law requires of him the production of the best evidence, which in the case of a writing is the instrument itself. If he, therefore, deliberately, destroys the written instrument and attempts to supply it by parol evidence, which is of inferior degree, it is, in the absence of proof that the written instrument was destroyed by accident, surprise or mistake, a conclusive presumption that it was in furtherance of a corrupt design thus to secure some unfair advantage over his adversary. Under such circumstances, parol evidence of the contents of q. written instrument cannot be received. It is, however, at all times proper to inquire into the motives which prompted the destruction of the written instrument, and if, from the evidence adduced, the motives appear to have been innocent of corrupt design, and the party seeking to avail himself of parol evidence of the contents of a written instrument destroyed by him did not, at the time of such destruction, appreciate the importance of the instrument, or was under some erroneous impression concerning its effect under circumstances which dispel suspicions of corrupt intent or design, then parol evidence of the contents is not only competent but it is error to exclude it, Steele v. Lord, 70 N. Y. 280 ; Bagley v. Mc Mickle, 9 Cal. 430, 446. Whether or not the destruction of the instrument was prompted by motives innocent of corrupt intent or, design, is a preliminary question of fact which must be determined by the trial justice before parol evidence of the contents of the instrument is receivable, Steele v. Lord, supra, and with his determination upon conflicting evidence, or upon conflicting inferences' from the evidence, the appellate court will not interfere. It is the province of the appellate court to reverse the trial justice’s determination only when there is no evidence whatever or no sufficient evidence to support the latter’s determination of the facts. Berg v. Carroll, 40 St. Rep. 811; Jackson v. Frier, 16 Johns. 193; Graham v. Chrystal, 2 Abb. Ct. App. Dec. 264 ; Nicholson v. Connor, 8 Daly, 215 ; Sheridan v. New York, 68 N. Y. 30; Gildersleeve v. Landon, 73 id. 609. In the case at bar it appeared from plaintiff’s testimony that the letter was destroyed with a lot of others deemed of no particular importance, and preserved in plaintiff’s place of abode, on the eve of her departure for Montreal in defendant’s employ, and at a time when no controversy had arisen concerning the terms of her employment, or could reasonably have been apprehended, the employment having just begun. We are of opinion that, upon this evidence, the trial justice cannot be said to have erred in his conclusion that the destruction of the letter was consistent with honest motives, and done under an misapprehension concerning the importance of its preservation for future use. The trial justice properly excluded the following question by defendant’s counsel, on plaintiff’s cross-examination, “ But, as I understand, you were acting out this two weeks’ notice, which it is the custom to give in such cases, were you not ? No evidence has been adduced, at the time, that there was any custom in the theatrical profession pursuant to which contracts entered into between artists and managers were terminable by either upon two weeks’ notice to the other. Neither had defendant pleaded any rescission of the contract as a defense to the action. On the contrary, the answer explicitly admitted that plaintiff was discharged, an admission which was plainly inconsistent with a rescission of the contract in furtherance of its provisons. The issues tendered by the pleadings, inclusive of the amendment to the answer, which was allowed on the trial, limited the inquiries, to the terms of the contract of employment and whether or not plaintiff was rightfully discharged. Assuming, therefore, that, pursuant to the provisions of the contract, or by custom, defendant, had the right to rescind or terminate the contract upon notice to plaintiff, it was, notwithstanding, incompetent to him, in the absence of the excuse of that right -pleaded as a defense, to avail himself thereof either to defeat plaintiff’s recovery altogether or to affect the measure of her recovery. This precise question was-lately determined by this court in Watson v. Russell, 58 St. Rep. 373, and it is unnecessary, therefore, to further discuss it here. Upon the grounds stated in the opinion last referred to the evidence, here sought to be elicited, that the contract was rescinded, was plainly irrelevant. What has been said also renders it futile to inquire whether or not the defendant should be deemed to have abandoned the exception which was taken by him to the exclusion of the question last above referred to because his counsel refused to avail himself of plaintiff’s offer, pending her cross-examination, to answer the question without objection. However, it may be said that, since it does not appear that defendant was in any sense prejudiced by the temporary exclusion of the question and that he would not have derived the same advantage from the subsequent admission of the evidence excluded, his refusal to avail himself of the opportunity accorded to correct it should estop him from thereafter asserting the the error, if any. The institution of judicial trial is designed to accord to the litigants those rights to which they shall, by proper evidence adduced by them, show themselves entitled. If; therefore, a party refuses to adduce evidence deemed by him to be material, when the opportunity is accorded him, he should not thereafter be heard to complain if it is not considered. The office of an exception is to point out wherein the excepting party claims to have been prejudiced by the ruling of the trial court, but it is the function of the appellate court only to correct such errors as have, or may have, prejudiced him. Interest reipublicae ut sit finis litium, and it is inconceivable how prejudice can result from a ruling which is immediately after offered to be corrected if the excepting party will consent and before he has been induced to waive any advantage which he would have secured from a ruling in his favor. Furst v. Second Ave. R. R. Co., 72 N. Y. 542, 546, relied upon by appellant’s counsel, is not at variance with the views expressed. There the error consisted of the admission of improper evidence by which the jury might have been influenced and it was held that because the trial court omitted to instruct the jury to disregard the evidence admitted, the error of its admission was not obviated by a direction that it be stricken out on motion of the party by whom it was introduced. Apropos of such cases, the court of appeals has very lately observed that, if the trial court erroneously receives objectionable and damaging evidence which it subsequently strikes out and directs the jury to disregard, it is uniformly held that “ the vice is eliminated and that, theoretically, at least, the erroneous evidence found no lodgment in the minds of the jury.” Chesebrough v. Conover, 140 N. Y. 382, 389 ; 55 St. Rep. 728. As abundant, at least, are the reasons for regarding as harmless the erroneous exclusion of proffered evidence, when opportunity for its admission is thereafter accorded, which is refused, and it does not appear that the excepting party has incurred even the possibility of disadvantage from the ruling excepted to. Flanagan v. Mitchell, 16 Daly, 223 ; 32 St. Rep. 303. Accompanying this appeal there was a further appeal from an order of the general term of the court below which affirmed an order of the trial justice denying appellant’s motion for disallowance of respondent’s amendment on the settlement of the case on appeal from the judgment. The case, as settled and certified to us, contains a request by defendant’s counsel to charge as follows: “ I ask the court to clwge, that if the jury believe the custom as to two weeks notice existed, they must give only salary for the two days short of two weeks.” This the court declined to charge. Then it appears, from the case, that the court proceeded to charge that “ in that event, that would be the extent and limit of the damages recoverable by her in this action.” Here follows an exception by defendant’s counsel. Defendant’s objection to the case as settled was to the insertion of the matter purporting to have been charged. By oral stipulation of counsel, in open court, at the time of the argument, however, we are authorized on this appeal to consider the matter objected to as eliminated from the case, so that the appellant’s exception shall appear to have been taken to the refusal to charge as requested. With the case so amended the exception is, nevertheless, wholly without merit. The request involved a proposition which was not only irrelevant but also inconsistent with the defense. It was admitted by the answer that plaintiff was discharged from defendant’s employ, and, on the trial, defendant sought to justify the discharge on the ground of incompetency. Ho recission of the contract of employment by notice, whether the right to do so arose from custom or agreement, was pleaded as a defense. Hence, as herein already stated, the right to rescind was not available to defendant for any purpose. It appeared in evidence that subsequent' to her discharge in November, 1892, plaintiff visited her sister in Savannah, Georgia, and there remained until April, 1893. Her contract oE employment with defendant was entered into in the city of New York. Upon these facts defendant’s counsel requested the court to charge the jury, as proposition of law, that defendant had a right to recall plaintiff’s discharge; to insist upon a reinstatement of the contract of employment; that plaintiff was bound to remain in the city of New York to await the recall of her discharge; and that she was not entitled to recover for the period of her absence from the city of New York. It'is apparent that these several propositions' were predicated of Polk v. Daly, 4 Daly, 411, and like cases, in all of which the plaintiff was held entitled to recover wages upon the theory of construction service, consistent with which it was incumbent upon i the servant to.show his readiness to comply with his master’s orders respecting the employment; a theory, however, which the case of Howard v. Daly, 61 N. Y. 362 has authoritatively settled, not to be the law of this state. But, though we assume the views of appellant’s counsel, respecting the law, to be correct, the propositions included in the requests refused are irrelevent to the facts of the case at bar for the defendant has, by his answer admitted that he discharged the plaintiff from his employ and that since the discharge he has refused to allow her to continue in his employ. If it be contended that the several requests are intended only to affect the measure of plaintiff’s recovery the propositions which they imply are equally falacious. Plaintiff’s damages were prima facie the amount remaining unearned under the contract of employment at the time of the discharge Howard v. Daly, supra,. It was incumbent upon the defendant to show that,- with reasonable diligence on her part, plaintiff could have found employment of the same kind and thus ' reduced the damages otherwise recoverable of him (id.). That she could have done so will not be assumed. Sutherland on Damages, vol. II, § 693. After the termination of the contract by defendant’s breach, it could not be reinstated, and plaintiff deprived of her cause of action, except by mutual consent. Defendant had a locus poenitentiae, but only to the extent of enabling him to reduce plaintiff’s damages by providing her with employment of the same kind, Bigelow v. Amer. Forcite Powder Mfg. Co., 39 Hun, 599 ; Levin v. Standard Fashion Co., 34 St. Rep. 299, which plaintiff would have been bound to accept unless, in the meantime, she had entered upon another’s employment or her refusal to re-enter defendant’s employment was justifiable upon substantial grounds, under pain of suffering a diminution of her recovery to the extent of the earnings which she would have received from the »employment offered her. It nowhere appears in evidence that defendant did offer to provide plaintiff with employment subsequent to her discharge or that he desired to do so, and defendant’s admission by answer irrefragably precludes the claim that he did or might have done so. Manifestly, therefore, plaintiff’s absence from the place of original employment, without evidence tending to show that'defendant was thereby deprived of the opportunity of reducing the damages for which his breach of contract had rendered him liable, could not have the effect whicli the requests to charge implied. The judgment should be affirmed, with costs.

Bookstaver, P. J., concurs.  