Hyperlawhypertext legal database Brodar v. Lord 46 N.Y. Super. Ct. 205

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Brodar v. Lord

46 N.Y. Super. Ct. 205 14 Jones & S. 205 Court N.Y. Super. Ct. Decision date 1880-05-03 English

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p. 205
MARGARET M. BRODAR, Appellant, v. GEORGE W. T. LORD et al., Respondents.

Headnote

Former recovery—action, to recover installment on cont/ra6t-*-when barr to action for breach.
Plaintiff having been wrongfully discharged from defendant’s employment, brought action to recover certain installments of her wages, being all that she would have been entitled to under the contract at the time the action was brought. The complaint was in form for wages, but it appeared upon the face thereof that no services were rendered after plaintiff’s discharge. Judgment was taken by default, and was paid in full by defendant.
Field, that the above recovery exhausted plaintiff’s remedy for damages for breach of contract, and is a bar to a subsequent action therefor.[1]
Before Speer and Freedman, JJ.
Decided May 3, 1880.
Appeal by plaintiff from judgment rendered at •special term.
The plaintiff was hired by the defendants on March 4, 1878, for one year, at a salary of §1,300, payable in bi-weekly installments of §50 each. ' On September 30, 1878, the plaintiff was discharged without cause.
About October 15, 1878, plaintiff brought action No. 1 for $50 in this court, and thereafter, by leave of •court, served a supplemental complaint claiming §100 more, or §150 in all. The complaints are in form for wages, but it appears upon the face of each, that no services were performed after plaintiff’s discharge. No answer was interposed, and on December 10, 1878,
p. 206
plaintiff assessed her damages before the clerk, and entered judgment, which was paid in full, and a satisfaction piece was given and filed the following day.
1 This action was commenced on January 11, 1879, and the complaint was identical with the complaint in action No. 1, except that it sought, in form, to recover wages for four subsequent bi-weekly periods.
Defendants pleaded the former recovery, judgment and satisfaction in their answer.
Plaintiff served an amended complaint, which is in form for damages for breach of the contract, and defendants in answer again pleaded the former recovery.
The judge, at special term, found asa conclusion of ' law, “ that the recovery in the first action exhausted the plaintiff’s remedy for damages for the breach of the contract, and is a good defense to this action.”
John McCrone, for appellant.
Chittenden & Hubbard, attorneys, and James M. Townsend, Jr., of counsel, for respondents, urged :
I. There is but one contract involved, and but one breach, viz., that of September 30, 1878. The recovery in the first action was a recovery of damages for the breach of this contract. It appears upon the face of the complaint and supplemental complaint in the first action, that no services were performed during the periods for which recovery was sought, and, as the doctrine of “ constructive service ” is done away with in this State, it could not have been a recovery of salary ; but in the words of his honor Chief Judge Daly, in Moody v. Levevich ( 4 Daly, 411 ), “ A judgment in favor of the plaintiff could by the law have' given upon no other ground. It was a recovery of damages for the breach of the contract and was a bar to any further action upon the contract.”
p. 207
II. The first recovery was of damages for the breach of the contract on September 30. This second action is brought to recover damages for the same breach of the same contract. The former recovery is a bar (Colburn v. Woodworth, 31 Barb. 381 ; Moody v. Leverich, 4 Daly, 401 ; approved in Howard v. Daly, 61 N. Y 362 ).

This case is' governed by the case of Colburn v. Woodworth ( 31 Barb. 381 ). We are not aware that the principle decided in that case has, since the decision, been questioned, and therefore see no occasion for further examination.

The judgment should be affirmed, with costs.

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