108 N.E. 183 | NY | 1915
The action is to recover damages for a wrongful discharge from employment, and the question is whether an order of arrest was justified under subdivision 4 of section 549 of the Code of Civil Procedure by an allegation in the complaint of fraud in the making of the contract of employment, and if not, whether the plaintiff may still have judgment notwithstanding that allegation.
To justify an order of arrest under said subdivision the action need not be one to recover damages for fraud, as under subdivision 2. Under that subdivision fraud is the gist of the action, whilst under subdivision 4 it is the gist of the arrest only, not of the action. The action under the latter subdivision is on contract, not for fraud. *14 The question is whether the fraud alleged was committed "in contracting or incurring the liability" sued on.
When the contract of employment was made, the defendant contracted or incurred a liability to pay the plaintiff a monthly salary of 500 marks. If the action had been to recover the stipulated salary, the fraud in the making of the contract would have been committed in "contracting or incurring" that liability; but liability for damages for a wrongful discharge was incurred only when the latter wrong was committed, not when the contract was made except possibly in a very remote sense. I cannot express the thought plainer than it was put by Presiding Justice INGRAHAM in the dissenting opinion below. He said: "The liability arose because of the breach and the defendant incurred the liability, not by making the contract but by refusing to carry it out; and the plaintiff's damages arose not by reason of the making of the contract, which so far as appears she was ready and anxious to perform, but because the defendant refused to allow such performance. I cannot see, therefore, how it can be said that the defendant was guilty of a fraud in contracting or incurring the liability."
The statute is not to be extended by construction so as to embrace cases not clearly within it. (Hathaway v. Johnson,
It cannot matter that the contract provided for liquidated damages for the breach. That measured but did not create the liability, which was incurred only when the breach occurred. There is no reasonable basis for a distinction in respect of the matter under consideration between contracts which provide for liquidated damages in case of a breach, and those which do not.
Whilst the allegation of fraud in the making of the contract did not justify the order of arrest and will not justify the issuance of an execution against the person on the judgment, it did not require a dismissal of the complaint. Prior to 1879 it was not essential that the cause of arrest under subdivision 4 of section 549 of the Code of Civil Procedure should appear in the complaint or be proved on the trial. (Bowery National Bank v.Duryee,
The allegation of fraud is irrelevant to the cause of action (Graves v. Waite,
The court charged, without exception, that the damages were liquidated, and fairly submitted to the jury the question whether the plaintiff or the defendant broke the contract.
The judgment should be affirmed, with costs.
WILLARD BARTLETT, Ch. J., CHASE, COLLIN, HOGAN, CARDOZO and SEABURY, JJ., concur.
Judgment affirmed.