Rauh v. Wolf

Seabury, J. This action was brought to recover damages for a breach of a contract of employment. The complaint alleges that, on March 23, 1907, the plaintiff and the defendants entered into an agreement whereby the defendants employed the plaintiff for a period to continue from said date to January 1, 1908, and agreed to pay the plaintiff for his services at the rate of $2,500 per annum, payable in monthly instalments; that the plaintiff performed the obligations to be performed on his part, but the defendants failed to perform said agreement, in that they prevented the plaintiff from rendering services during the months of November and December, .1907; that there is due the plaintiff under said instalments the sums of $208.33 for the month of November, 1907, and $208.33 for the month of December, 1907. The complaint then demands judgment for $416.66, with interest and costs. In the court below, counsel for the plaintiff conceded that the plaintiff rendered no services for the months of November and December; and the court construed the complaint as [623] stating a cause of action for services rendered and dismissed the complaint. The complaint, although inartifieially drawn, is sufficient to sustain a recovery of damages for breach of the contract of employment therein stated. Murray v. O’Donohue, 109 App. Div. 696; Williams v. Conners, 53 id. 599. If this were the only question presented by the record before us, the judgment should be reversed and a new trial ordered. The defendant, however, pleaded, as a bar to this action, a judgment recovered in the Municipal Court. The judgment roll in the Municipal Court action was offered and received in evidence. The parties were the same in both actions, and the plaintiff recovered judgment in the Municipal Court action for a breach of the same contract of employment set up in this action. In the Municipal Court action, the plaintiff sued to recover $208.33 for “ services rendered and breach of contract of employment.” In the Municipal Court action, the plaintiff testified that he performed no work in October, having discontinued work on September twenty-eighth, and that he was suing for “ salaries for October.” The Municipal Court action was started on November 13, 1907; and judgment was rendered in -the plaintiff’s favor for the full amount claimed, on January 21, 1908. From this review it will be seen that, in the Municipal Court action, the plaintiff recovered for a breach of contract; and his damages were shown to be the loss of $208:33, which he would have earned during the month of October, if performance had not been prevented. The recovery in the Municipal Court was not for services actually rendered, because it is conceded that the plaintiff rendered no services in October. The plaintiff having recovered in the Municipal Court a judgment for a breach of the contract of employment, that judgment is a bar to the present action to recover for a breach of the same contract of employment. Waldron v. Hendrickson, 40 App. Div. 7. The judgment roll offered in evidence establishes a complete bar to this action, and the complaint should have been dismissed upon the merits. [624] The judgment is modified and the dismissal is directed upon the merits and, as modified, affirmed. Gildersleeve and Lehman, JJ., concur. Judgment modified, and, as modified, affirmed.