July Term, 1900.
Bertrand Clover and Vernon Cole, for the appellant.
Edward L. Jung and Robert F. Schilling, for the respondent.
Although the record does not disclose the ground of the motion to dismiss the complaint or the nature of the amendment requested by the plaintiff, it is evident, and it is conceded, that the motion to dismiss was based upon the plaintiff's failure to demand damages instead of wages and that the amendment desired was to remedy this supposed defect.
While it is well settled that wages can only be recovered in an action on contract and for services actually rendered, yet a wrongful discharge before the expiration of the period of employment gives the employee a right of action for breach of contract, and the damages are presumptively the wages for the full term or down to the time of the commencement of the action, if it be commenced before the expiration of the term of employment, and the burden of showing, in mitigation of damages, that the employee obtained or failed to seek other similar employment, or that he could have obtained it, rests upon the defendant. ( Howard v. Daly, 61 N Y 362; Crawford v. Mail Express Pub. Co., 22 App. Div. 54; Waldron v. Hendrickson, 40 id. 7; Wieland v. Willcox, Id. 213.)
Section 481 of the Code of Civil Procedure provides that the complaint must contain a plain and concise statement of the facts constituting the cause of action and "a demand of the judgment to which the plaintiff supposes himself entitled."
Where the facts from which damages naturally flow are stated and there is a demand for judgment for a certain sum of money, the complaint need not allege in terms that damages have been sustained. ( Ketchum v. Van Dusen, 11 App. Div. 332; Kenney v. N.Y.C. H.R.R.R. Co., 49 Hun, 535.)
In an action for breach of contract an erroneous demand for relief, or a demand for damages predicated on an erroneous theory, does not deprive plaintiff of the relief to which he is entitled upon the facts pleaded. ( Muldowney v. Morris Essex R.R. Co., 42 Hun, 447; Colby v. Colby, 81 id. 221; Kraft v. Rice, 45 App. Div. 569; Colrick v. Swinburne, 105 N.Y. 503; Sussdorff v. Schmidt, 55 id. 319.)
The complaint states every fact essential to a cause of action for damages for breach of the contract of employment, and does not state all the facts essential to constitute a cause of action for wages. The mere fact that the demand is for seventy-five dollars wages for the breach of contract, instead of seventy-five dollars damages therefor, does not render the pleading fatally defective as an action for damages. ( Waldron v. Hendrickson, supra.) But, if the complaint were insufficient in this regard, justice required that the motion to amend should have been granted.
The judgment appealed from should, therefore, be reversed and a new trial granted, with costs to the appellant to abide the event.
Judgment reversed and new trial ordered, with costs to appellant to abide event.