Southwick v. Bernhard — 17 N.Y.S. 478

Majority

p. 478

Southwick v. Bernhard.

(Superior Court of New York City, General Term.

January 11, 1892.)

Headnote

Master and Servant—Wrongful Dismissal—Damages.

Where a master discharges a servant before the term of service expires, and the latter endeavors hut is unable to obtain other employment, the servant’s measure of damage is the sum fixed by the contract of employment for such unexpired term.

Appeal from jury term.

p. 479

Actipn by George Southwick against Adolph Bernhard upon a contract of employment. Verdict and judgment for plaintiff. Defendant appeals from the judgment and order denying a motion for a new trial.

Affirmed.

Argued before Freedman, McAdam, and Gildersleeve, JJ.

E. A. Jacob and David Leventritt, for appellant. Milnor <& Willis, for respondent.

The action was by the plaintiff, as traveling salesman, to recover damages for wrongful discharge. The question litigated was whether the hiring, was by the year, or for no fixed duration, and terminable at the pleasure of either party. The jury found that the agreement was to continue for one year, and the plaintiff, having been discharged nine months before the term of service expired, was awarded by the jury the actual loss suffered,— no more. The plaintiff endeavored but was unable to obtain other employment: hence his loss aggregated the sum which the defendant by his contract was to pay. There is no merit in the exceptions taken, and there is nothing in the ease which requires a new trial. The case was fairly submitted to the jury, and the judgment entered on their verdict and the order denying the motion for a new trial must be affirmed, with costs. All concur.