238 A.D. 869 | N.Y. App. Div. | 1933
Judgment unanimously affirmed, with costs. There was no variance between the complaint and the proof. That which is claimed to be a variance was matter that was properly adduced under the complaint by way of showing dealings between the parties that recognized the existence of the claimed contract of October 17, 1930; that is, the incidents of October 31 and December 26, 1930, were admissions which could be availed of by the plaintiff on the basis indicated. The claimed obligation to await the payment of part of the weekly salary until a specified payment was had by defendant from the Port Authority was not binding upon the plaintiff, and if it were, the repudiation by defendant on February 26, 1932, of the plaintiff’s version of the contract of October 17, 1930, relieved him from awaiting the date of the final payment to the defendant from the Port Authority, as that repudiation was a breach which gave rise to a right in the plaintiff, under the doctrine of anticipatory breach, to enforce his claimed contract forthwith. (Kelly v. Security Mutual Life Ins. Co., 186 N. Y. 16, 19; Howard v. Daly, 61 id. 362.) Present — Lazansky, P. J., Young, Hagarty, Carswell and Scudder, JJ.
