26 N.Y.S. 31 | New York Court of Common Pleas | 1893
Defendants are the proprietors of the Holland House, an hotel in the city of New York, and plaintiff entered their
We cannot, however, regard the provisions of the agreement that for plaintiff’s departure from defendants’ employment without having given three days’ previous notice, in writing, of his intention so to do, he should forfeit all moneys then owing to him, as anything but a penalty. The language used is immaterial, if the intention to provide a penalty is apparent. Whether or not, therefore, the sum stipulated to be paid or forfeited upon the breach of a contract is to be regarded as a penalty or damages, is a question mainly of the intention of the contracting parties, which must be ascertained from the contract itself, in the absence of ambiguity. Kemp v. Ice Co., 69 N. Y. 45; Lennon v. Smith, (Com. Pl. N. Y.) 1 N. Y. Supp. 97; 1 Suth. Dam. § 283. In the present instance the agreement did not name a fixed sum, which, within the range of reasonable probability, would represent the pecuniary estimate of the loss which defendants might sustain from plaintiff’s breach of contract. It provided that plaintiff should suffer the loss of all moneys due him from defendants at the time of his departure from their employment, without reference to the extent of the injury, immediate or remote, which defendants might suffer from plaintiff’s conduct. It might be, therefore, that the amount owing to plaintiff from defendants is outrageously in excess of any loss which the latter have sustained, or in all reasonable probability could sustain; and still, if the letter of the agreement was