
    Ike Spindel, Appellant, v. Leon Cooper and Samuel Altholz, Respondents.
    (Supreme Court, Appellate Term,
    March, 1905.)
    Master and servant — Illness of servant — Discharge—Sufficiency of complaint — Allegation excusing nonperformance.
    An employer is not bound to wait an unreasonable time for an employee, under contract for the rendition of personal services, to recover from an illness, and in general the question of what is an unreasonable time is one of fact.
    
      Where the complaint in an employee’s action for discharge from employment alleges that when plaintiff had recovered from an illness which had incapacitated him from working for two weeks, and returned and offered to go on with his work, defendant “told him to call on the following Friday to resume his employment ”, it sufficiently pleads a waiver of any supposed breach arising from plaintiff’s enforced absence from work, and he may not be discharged by reason thereof.
    In such action, plaintiff may allege his illness as an excuse for the nonperformance of the contract in full on his part.
    
    Appeal from a judgment of the City Court of the city of ¡New York, dismissing, the plaintiff’s complaint.
    Joseph Wilkenfeld, for appellant.
    J. A. Seidman, for respondents.
    
      
       Where a complaint in an action upon a contract alleges full performance, evidence of excuse for nonperformance is not admissible. O’Leary v. Board of Education, 9 Daly, 161.
    
   Scott, J.

It is quite true that ordinarily one who seeks damages for breach.of a contract must allege full performance upon his own part. There are cases, however, in which it is permitted to allege something short of full performance, with a sufficient excuse for nonperformance. Such a case is presented where the plaintiff’s contract is for the rendition of personal services, and the excuse for nonperformance is sickness. Wolfe v. Howes, 20 N. Y. 197. Undoubtedly an employer is not bound to wait an unreasonable time for his employee to recover (McCarrigle v. McCosker, 83 App. Div. 184), but the question as to what an unreasonable time is, in general, a question, of fact and not of law. It certainly cannot be said as matter of law that the illness of plaintiff as set 'forth in the complaint was unreasonably prolonged, and, even if plaintiff’s incapacity to work for two weeks, owing to his illness, would have constituted a sufficient cause for the cancellation of the contract, it did not so operate as to cancel it ipso facto. The most that could be claimed is that it offered to defendants an option to cancel it. But they had also the option to waive the breach, if breach it was. ¡No particular act, or form of words was necessary to indicate such a waiver. The complaint alleges that when plaintiff had recovered his health and returned and offered to go on with his work the defendants “ told him to call on the following Friday to resume his employment.” Accepting this statement as true, as we must do on this appeal, we are of opinion that it sufficiently pleads a waiver by defendants of any supposed breach arising from plaintiff’s enforced absence from ■ work. The breach having been waived could no longer be availed of as a reason for discharge.

The judgment must he reversed, and a new trial ordered, with costs to the appellant to abide the event.

O’Gorman and Blanchard, JJ., concur.

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