Fuchs v. Koerner — 12 N.Y. St. Rep. 318

Majority

p. 318

Herman Fuchs, Resp’t, v. Theodore E. Koerner, App’lt.

(Court of Appeals,

Filed December 13, 1887.)

Headnote

Contract of employment—Breach of—Doty of employee to reduce ' DAMAGES.

Where one contracts to employ another for a certain time, and discharges him without cause before the expiration of the time, the employee must use reasonable diligence to procure another place of the same kind, . but he is not required to enter upon a-new business or one different from, that which he had undertaken.

On the 9th of February, 1884, the defendant engaged the plaintiff “ for his business in essential oils and essences for one year,” from the 6th of February, 1884, for the yearly wages of $1,800, in weekly payments of $37.50. The plaintiff served under that agreement until July 6, 1884, when the defendant closed up his business, and for that-reason discharged the plaintiff. He neverthless reported daily to the defendant, and also sought employment elsewhere. The defendant offered to employ him in making and. selling fancy boxes. This he declined, but in fact earned fifteen dollars in other ways. He sued to recover damages for the breach of the agreement, and the jury awarded him $712. The defendant moved for a new trial, which was denied. The general term of the New York superior court affirmed the order then entered and the judgment rendered on the verdict. The defendant appeals from the decision of that court.

John D. Ahrens, for app’lt; George L. Simonson, for resp’t.

The learned trial judge charged the jury that it was the plaintiff’s duty to use reasonable diligence in procuring another place of the same kind, in order to relieve the defendant as much as possible from the loss

p. 319

consequent upon his breach of contract, but that he was-not bound to accept occupation of another kind. An exception to this qualification presents the only' question ■ raised upon this appeal, and it must be answered in favor-of the plaintiff. He was ready during the entire year to-perform, his agreement, and could not be required to enter upon a new business, or one different from that which he-had undertaken. Costigan v. Mohawk and Hudson River R. R. Co., 2 Denio, 609 .

It follows that the judgment is right and should be-affirmed.

All concur, except Rapallo, J., absent.