#### Nellie J. O’Neill, Respondent, *v.*Bernard Traynor, Appellant.

(Supreme Court, Appellate Term,

October, 1898.)

Services — Measure of damages, where action for wrongful discharge is tried after expiration of term.

Where an action for a wrongful discharge, brought before, is tried after, the term of service has expired, the plaintiff may recover the same damages as if she had not sued until the term had expired; her damages being the contract compensation for the services, less what she had been paid and what she had earned after discharge.

O’Neill v. Trainor, 23 Misc. Rep. 770, affirmed.

Appeal from a judgment of the General Team of the City Court, affirming a judgment of the Trial Term, entered on the verdict of a jury, in favor of the plaintiff.

*687W. B. Donihee, for appellant.

C. A. Wendell, for respondent.

Gildersleeve, J.

It is the plaintiff’s claim that she and the defendant entered into a verbal contract, by the terms of which she was hired by the defendant to work in his store from about February 23, 1896, to the following Christmas or New Year, the date to depend upon the state of business, a period of about forty-four weeks, at $25 a week; that, without just cause, defendant discharged her at the end of seventeen weeks; that she tried to get other work, and succeeded in earning about $210, between the time of her discharge and the following January. It appears from the appeal-book before us, that the action was commenced on October 20, 1896, but that the case was not tried until the 4th of January, 1898. The action is for a breach of contract, and lays the damages at $675, which would have been the salary of plaintiff, under the contract, for the remaining twenty-seven weeks of the term, at $25 a week. The jury found in her favor, and, having deducted the $210, which she had earned elsewhere, gave her judgment for $465. The defendant’s claim, on the other hand, is that he only hired plaintiff for such time as she suited him, and that he discharged her because she failed to suit him.

The appellant attacks the judgment on a number of grouiids the first of which is that it is against the weight of evidence. But, as this appeal is from the City Court, we are not called upon to weigh the evidence, when conflicting; and, as there is some evidence to sustain plaintiff’s claim, this objection of appellant cannot be considered. Secondly, the judgment is assailed for the admission in evidence of a letter from defendant’s superintendent to plaintiff, dated July 18,1896, subsequent to plaintiff’s discharge, and worded as follows, viz.: “ I am pleased to be able to tell you that k'lr. Traynor (defendant) will give any person who writes or inquires the best of reference. His angry mood only lasts a short time.” This letter was given for the purpose of tending to contradict defendant’s rather indefinite charge that plaintiff had not proved herself suitable, and the jury probably took it for what it was worth. It hardly seems sufficient ground upon which to base a reversal of the judgment. The appellant’s next claim is that plaintiff has not shown that she sought similar work, but that she earned the $210, which was deducted from her claim, by going into bttsi*688ness for herself. The burden of showing that the plaintiff failed to perform her obligation to seek similar employment, or ■ that similar employment was offered her and was refused, rested upon the defendant (see Crawford v. Mail *&*Express Co., 22 App. Div. 54); and the defendant has not introduced a particle of testimony on the subject. ' The plaintiff swears that she sought work, and finally went into business for her own account. There does not appear to be much force in this contention of the appellant. The appellant next argues with much earnestness that plaintiff was only entitled to the damage she had suffered up to the time when she commenced her action, *i. e.,*October 20,1896; and he cites Colburn v. Woodworth, 31 Barb. 381, and Toles v. Hazen, 57 How. Pr. 516, in support of'his contention. The law on this point, however, is very clearly laid down by our court of last resort, in the case of Everson v. Powers, 89 N. Y. 527, where it is held that *“*Where, upon breach of a contract of employment, by a wrongful discharge of the employee, an action is brought by him before the expiration of the term of service, but is not brought to trial until after the expiration thereof, plaintiff is entitled to recover the same damages as he would have been entitled to had the action been commenced after the expiration of the. term, *i.*e., the difference between the compensation fixed by the contract for the service, and what plaintiff has received, together with what he was able to earn after his discharge. If' the trial, however, is had before the expiration of the term, it appears that plaintiff is only entitled to recover such actual damage as the evidence shows that he, has.sustained up to the time of the trial; and if at that time the loss is still only probable, the recovery should be for nominal damages only.” It, therefore, follows that this ground, urged by appellant, is without, merit, since the trial herein was not had for more than a year after the expiration of the term of service. The remaining points raised by the appellant refer to alleged errors in rulings on the admissibility of evidence and in refusals to charge, which are not of sufficient importance to require discussion. To the charge itself there are no exceptions. ■

We are of opinion that the judgment should be affirmed, with costs.

Beekman, P. J., and Giegerich, J., concur.

Judgment affirmed, with costs.