
    (53 App. Div. 599.)
    WILLIAMS v. CONNORS.
    (Supreme Court, Appellate Division, Fourth Department.
    July 24, 1900.)
    Pleading—Breach op Contract—Complaint—Judgment—Prayer.
    Where a complaint alleged facts sufficient to constitute a cause of action for damages for breach of a contract of employment, the fact that the prayer- was for a judgment for-wages, instead of for damages, did not render the complaint fatally defective, and hence a judgment dismissing the complaint was erroneous.
    Appeal from special term, Erie county.
    Action by Luther Williams against William J. Connors. From a judgment dismissing the complaint, plaintiff appeals.
    Reversed.
    The complaint alleges: “That on or about the 17th day of May, 1899, at Buffalo, N. Y., the defendant engaged the services of the plaintiff, at his special instance and request, to work' for him for the period of seven months from on or about said 17th day of May, 1899, at the rate of $75" per month. The plaintiff did perform services for said defendant in accordance with the terms of said contract from on or about said 17th day of May, 1899, to said 27th day of May, 1899, and was paid by said defendant for said services. That on or about the 27th day oí May, 1899, the defendant wrongfully discharged said plaintiff. That plaintiff then and there refused to be discharged. That plaintiff tendered defendant his services at the time of being so discharged by said defendant and has ever been ready and willing to perform said services for said defendant. That there is now justly due from defendant to plaintiff the sum of $75 for one month’s pay. That no part thereof has been paid, although payment has been repeatedly demanded of the defendant by the plaintiff, and said defendant refuses to pay the same. Wherefore plaintiff demands judgmnt of said defendant for the sum of $75, with interest thereon from June 27, 1899, together with the costs and expenses of this action.” The record shows that, upon the case being moved for trial, the defendant moved to dismiss the complaint, whereupon plaintiff’s counsel mo-ved to amend. The latter motion was denied, and the former granted.
    Argued before ADAMS, P. J., and McLENNAN, SPRING, WILLIAMS, and LAUGHLIN, JJ.
    Bertrand Clover, for appellant.
    Edward L. Jung, for respondent.
   LAUGHLIN, J.

Although the record does not disclose the ground of the motion to dismiss the complaint, or the nature of the amendment requested by the plaintiff, it is evident, and it is conceded, that the motion to dismiss was based upon the plaintiff’s failure to demand damages, instead of wages, and that the amendment desired was to remedy this supposed defect. While it is well settled that wages can only be recovered in an action on contract and for services actually rendered, yet a wrongful discharge before the expiration of the period of employment gives the employé a right of action for breach of contract, and the damages are presumptively the wages for the full term, or down to the time of the commencement of the action if it be commenced before the expiration of the term of employment; and the burden of showing, in mitigation of damages, that the employé obtained or failed to seek other similar employment, or that he could have, obtained it, rests upon the defendant. Howard v. Daly, 61 N. Y. 362; Crawford v. Publishing Co., 22 App. Div. 54, 47 N. Y. Supp. 747; Waldron v. Hendrickson, 40 App. Div. 7, 57 N. Y. Supp. 561; Wieland v. Willcox, 40 App. Div. 213, 57 N. Y. Supp. 1038. Section 481 of the Code of Civil Procedure provides that the complaint must contain a plain and concise statement of the facts constituting the cause of action, and “a demand for the judgment to which the plaintiff supposes himself entitled.” Where the facts from which damages naturally flow are stated, and there is a demand for judgment for a certain sum of money, the complaint need not allege in terms that damages have been sustained. Ketchum v. Van Dusen, 11 App. Div. 332, 42 N. Y. Supp. 1112; Kenney v. Railroad Co., 49 Hun, 535, 2 N. Y. Supp. 512. In an action for breach of contract an erroneous demand for relief, or a demand for damages predicated on an erroneous theory, does not deprive plaintiff of the relief to which he is entitled upon the facts pleaded. Muldowney v. Railroad Co., 42 Hun, 447; Colby v. Colby, 81 Hun, 221, 30 N. Y. Supp. 677; Kraft v. Rice, 45 App. Div. 569, 61 N. Y. Supp. 368; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Sussdorff v. Schmidt, 55 N. Y. 319. The complaint states every fact essential to a cause of action for damages for breach of the contract of employment, and does not state all the facts essential to constitute a cause of action for wages. The mere fact that the demand is for $75 wages for the breach of contract, instead of $75 damages therefor, does not render the pleading fatally defective as an action for damages. Waldron v. Hendrickson, supra. But, if the complaint were insufficient in this regard, justice required that the motion to amend . should have been granted.

The judgment appealed from should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event. All concur.  