145 N.Y.S. 142 | N.Y. App. Term. | 1913
Plaintiff, a resident of New York, entered into a contract of employment with defendant for the term of one year from October 15, 1911, to act as superintendent for the defendant in Cleveland, O., at a salary of $7,000 per year, and proceeded to Cleveland where he entered upon the performance of his duties. He alleges that in December, 1911, he was wrongfully discharged by the defendant, and claims the balance of the yearly salary, less the sum of $4,873, admitted to have been earned by him subsequent to the alleged discharge. Defendant denies the wrongful discharge and sets up an offer of re-employment, on the same terms as the original contract, alleged to have been made by the defendant to plaintiff about one week subsequent to the alleged discharge, claiming that by such refusal of re-employment plaintiff waived all right to more than nominal damages.
The ¡jury found on amply sufficient evidence that defendant did wrongfully discharge the plaintiff, and, after deducting the amount admitted to have been earned by plaintiff, rendered a verdict for the balance of the yearly salary.
In the charge to the jury the trial justice made no reference to the alleged offer of re-employment, nor did defendant’s counsel ask to go to the jury on that issue. The trial justice, however, in the elaborate and very extended opinion filed with the decision granting the motion for a new trial, has stated in substance that the motion was granted on the ground that it was plaintiff’s duty to accept the offer of reemployment, and that in refusing so to do he deprived himself of the right to recover damages for the alleged breach of contract. In this the learned court erred. While the mere offer by the employer to re-employ, after wrongful discharge, may be considered in miti
It' further appears that defendant did not, in its original offer of re-employment, include proffer of payment for the time lost by plaintiff since his discharge or for the expenses which would be necessarily incurred by him in returning to the place of employment. Plaintiff, if re-employed, was entitled to demand that he be made whole, that he suffer no loss because of his wrongful discharge. The failure to include in the offer full compensation for the time lost since his discharge and the necessary expense of returning to the place. of employment would justify a jury in finding that the offer of re-employment was not reasonable or not made in good faith.
Defendant’s evidence as to the final offer of reemployment is embodied in defendant’s Exhibit D, a letter written by defendant’s attorney to plaintiff’s attorney, wherein it is stated: “ They (defendant) will not pay his expenses from Cleveland to New York and return, as suggested in your letter, nor any salary for the time he was idle,” i. e., for the term intervening between the alleged wrongful discharge, and the time of the offer of re-employment. This was. in effect an offer of re-employment based on the condition that plaintiff should waive his right to compensation for the period that he was deprived of employment by
The questions of fact involved having been determined in favor of the plaintiff on sufficient evidence, and no proper ground appearing for the setting aside of the verdict, the order must be reversed, with costs, and the judgment reinstated, with costs.
Seabury and Bijur, JJ., concur.
Order reversed, with costs.