Marks v. Magid ( 1915 )

GUY, J.

[1, 2] The moving papers do not furnish any sufficient ground for a new trial. The facts alleged, had they been proven at the trial, would not have justified any modification of the verdict. The mere fact that after the action was commenced, and four days before the trial, plaintiff, having failed to find employment as an individual, filed a certificate that he intended to do business under a corporate name, raises no presumption that he would be any more successful in a corporate capacity than as an individual in finding personal employment. If his corporate enterprise involved an investment of funds, any profits received from such investment, rather than from personal labor, could not properly be allowed in reduction of damages.

[3] The burden is not on the plaintiff to prove that he attempted to obtain employment and failed, but on the defendant to show the amount earned by way of reduction of damages. Goldberg v. Shapiro, 140 N. Y. Supp. 1016. It is a novel proposition that, if the facts are true, a new trial may be granted, because, if complied with, other additional facts not alleged may be shown, and that the combined facts might affect the result. The order should be reversed and the judgment reinstated.

Order reversed, with costs and judgment reinstated.

WHITAKER, J., concurs.