Wieland v. Willcox — 57 N.Y.S. 1038

Majority

p. 1038

WIELAND v. WILLCOX.

(Supreme Court, Appellate Division, Second Department.

May 8, 1899.)

Headnote

Res Judicata — Splitting Causes op Action — Wrongful Discharge of Servant.

The recovery of damages by a servant for his wrongful discharge is a bar to any other further action for-other damages for the breach of the contract of employment, because, the breach being single, all damages must be recovered in one action. - - .

Appeal from trial term, Kings county.'

Action by Henry L. Wieland against Edwin B. Willcox. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiff appeals.

Affirmed.

Argued before GOODRICH, P. J., and CULLEN, BARTLETT, HATCH, and WOODWARD, JJ.

John U. Shorter, for appellant.

John H. Parsons, for respondent.

The previous recovery by the plaintiff of damages for a wrongful discharge from his employment is a bar to the "maintenance of the present action. It is settled law in this state that upon such a discharge the only action the employé can bring is for the breach of the contract, and not one for wages, on the theory of constructive service. The breach being single, but a single action can be brought on it, and in that action the plaintiff must recover all his damages. Howard v. Daly, 61 N. Y. 362 ; Weed v. Burt, 78 N. Y. 191 ; Bassett v. French (Com. Pl.) 31 N. Y. Supp. 667 ; Waldron v. Hendrickson (App. Div., 2d Dept.; decided April 18, 1899, and not yet officially reported) 57 N. Y. Supp. 561 .

The order appealed from should be affirmed, with costs.

Cases cited

Howard v. Daly 61 N. Y. 362 N.Y. Comm'n App. p. 1038
Weed v. Burt 78 N. Y. 191 N.Y. 1879-09-17 p. 1038