Munden v. McDaniel ( 1937 )

Action for recovery of damages for breach of an employment contract by an alleged wrongful discharge. Order dated May 4, 1936, modified by striking from the first and second ordering paragraphs everything after the words “ granted thereon,” and as so modified unanimously affirmed, costs to abide the event of the new trial, which will proceed as to aE four causes of action, without severance. Judgment vacated except in so far as it dismisses the complaint as to defendant McDaniel. The appeal by plaintiffs from so much of the judgment as dismisses the complaint as against defendant McDaniel has been discontinued by stipulation. The appeal from the order dated May 28, 1936, is dismissed. In our opinion, it was reversible error to exclude the proof offered by defendants in mitigation of damage as to money received after the discharge by the apprentice for riding winning horses, which was known as “ stake ” money. Inasmuch, however, as there was no obligation imposed upon the employer under the contract to permit the apprentice to ride horses in races, it is clear that his damages were Hmited to the express compensations and benefits contained in the contract, and that such damages should not include so-eaUed “ stake ” money. Upon a retrial, we deem it advisable to point out that there is but a single cause of action set forth in this complaint. Further, that the existence of another outstanding contract for the services of the apprentice, coneededly entered into by the plaintiffs and extending beyond the time of the discharge, would warrant such discharge were it not for the fact that the fair inference is that such contract was abandoned, at least a jury might so find. Present — Lazansky, P. J., Hagarty, CarsweU, Davis and Adel, JJ.