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which was denied. It is true that this demand was not made until after the trial was opened, but it was made as soon as the defendant had opened his case, and the court had disposed of the motion to dismiss. This was the first time that the defendant could raise the question properly, as up to that time he had a right to rely upon the fact that the plaintiff would limit his demand to such equitable relief as was furnished by the issues which the pleadings presented, and which the court might have had authority to grant, or, at least, to determine. It was therefore error to retain the action for the purpose of determining the damage sustained by the plaintiff.

For the reasons stated, the judgment should be reversed, and a new trial granted, with costs to the appellant to abide event. All

concur.

(53 App. Div. 384.)

POWERS v. POWERS.

(Supreme Court, Appellate Division, Second Department. July 23, 1900.) DIVORCE PROCeedings-CoMPETENCY OF SON AS WITNESS.

In an action for separation, the son of the parties is a competent witness.

Appeal from special term, Kings county.

Action by Louise T. Powers against James J. Powers. From a judg. ment in favor of plaintiff, defendant appeals.

Reversed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Alexander S. Bacon, for appellant.
R. McC. Robinson, for respondent.

PER CURIAM. This judgment must be reversed, and a new trial granted. The action is for separation, and the defendant upon the trial offered as a witness the oldest son of the parties. The learned trial court refused to permit him to be sworn or to give evidence. No legal ground appears for such action; and as the defendant insisted upon his right to have the testimony received as a part of the case, and excepted to the court's refusal to grant such right, the error is one which requires reversal of the judgment.

and 100 New York State Reporter

KENNY et al. v. MONAHAN.

(Supreme Court, Appellate Division, Second Department. July 17, 1900.) 1. BUILDING CONTRACT-ACTION FOR PRICE-DELAY-DEFENSE.

Where the owner permitted the contractor to go on and finish a building after the time stipulated in the contract, and extra work was ordered by the owner, which required additional time, the delay in completion cannot be set up as a defense to an action for the contract price.

2. SAME-COUNTERCLAIM FOR DELAY-DISMISSAL.

Where defendant in an action to foreclose a mechanic's lien counterclaimed for damages for delay in completion beyond the date set by the contract, but failed to introduce any evidence of damage by the delay, the counterclaim was properly dismissed.

Appeal from special term, Kings county.

Action by Christopher J. Kenny and another against Hugh V. Monahan. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and JENKS, JJ.

Edward M. Grout, for appellant.

D. F. Manning, for respondents.

WOODWARD, J. The careful and intelligent discussion of this case presented in the opinion of the court below makes it unnecessary to enter into any elaborate consideration of the matters involved. Counsel for the appellant urges with so much of earnestness that the trial court has misapplied the law as laid down by the court in Dunn v. Steubing, 120 N. Y. 232, 24 N. E. 315, that we have felt constrained to consider that view of the question. The contract under which the plaintiffs in this action performed the services for which they now seek to recover provided that the work should be completed within one month. The learned trial court decided that "the defendant has failed to sustain his counterclaim for damages for delay in the completion of the building beyond the time specified in the contract, for the reason that time was not of the essence of this contract in the contemplation of the parties, and the defendant has estopped himself from enforcing this provision of the contract by his own conduct." In an accompanying opinion the court suggests, upon the authority of Dunn v. Steubing, supra, that "upon the failure of the plaintiff to perform the contract by the date fixed the defendant might have insisted upon his strict legal rights, and then put an end to the contract; but this he did not do, but permitted the plaintiff's to continue the work, and for this reason he cannot now insist upon the delay as a defense to an ac tion brought to recover the price of the contract." This view of the law seems to be in harmony with the authority cited; that is, that the failure of the plaintiffs to perform the contract within the time specified, if acquiesced in by the defendant, who has received the benefit of the labor performed and the materials furnished, cannot be set up as a defense to an action to recover for such services and materials. This does not go to the extent of holding that damages actually sustained by the defendant by reason of the failure of the plaintiffs to

perform the contract within the time specified may not be recovered, but that the mere fact of a failure to perform is not a defense to the action. The difficulty with the position assumed by the appellant is that there was no evidence in support of the claim for damages under this head, except that the plaintiff's had failed to perform the work in the time agreed upon; and, in the absence of evidence showing damages, the defendant has failed to establish a counterclaim.

The record shows that there were material modifications and changes made at the suggestion of the architect, with the approval of the defendant; that these required additional time; and the facts justified the decision of the court below that time was not of the essence of the contract in the contemplation of the parties, and that the defendant had estopped himself from insisting upon the time limit of the contract by his own conduct. We fail to find in the case anything to indicate that the trial court has misapplied the law. So far as our attention is drawn to the matter, no evidence was offered in support of the claim for damages, aside from the fact that the contract was not performed on time; and no right of the appellant, therefore, could be involved, even if it be conceded that the court below was led into the error of supposing that the defendant could not recover actual damages growing out of the failure to perform a duty which plaintiffs owed to the defendant under the contract. We are of opinion that the authority cited fully sustains the decision of the court below, in so far as it affects the rights of the appellant at least, and beyond this there is no need to inquire. The damages for injuries to goods, due to the failure of the plaintiffs to exercise that degree of care demanded of them under the circumstances, is fully treated by the court below, and the conclusion reached is supported by the evidence. The judg ment should be affirmed.

Judgment affirmed, with costs. All concur.

(53 App. Div. 599.)

WILLIAMS v. CONNORS.

(Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) PLEADING-BREACH OF CONTRACT-COMPLAINT

JUDGMENT-PRAYER.

Where a complaint alleged facts sufficient to constitute a cause of action for damages for breach of a contract of employment, the fact that the prayer was for a judgment for wages, instead of for damages, did not render the complaint fatally defective, and hence a judgment dismissing the complaint was erroneous.

Appeal from special term, Erie county.

Action by Luther Williams against William J. Connors. From a judgment dismissing the complaint, plaintiff appeals. Reversed.

The complaint alleges: "That on or about the 17th day of May, 1899, at Buffalo, N. Y., the defendant engaged the services of the plaintiff, at his special instance and request, to work for him for the period of seven months from on or about said 17th day of May, 1899, at the rate of $75 per month. The plaintiff did perform services for said defendant in accordance with the terms of said contract from on or about said 17th day of May, 1899, to said 27th day of May, 1899, and was paid by said defendant for said services. That on or

and 100 New York State Reporter

about the 27th day of May, 1899, the defendant wrongfully discharged said plaintiff. That plaintiff then and there refused to be discharged. That plaintiff tendered defendant his services at the time of being so discharged by said defendant and has ever been ready and willing to perform said services for said defendant. That there is now justly due from defendant to plaintiff the sum of $75 for one month's pay. That no part thereof has been paid, although payment has been repeatedly demanded of the defendant by the plaintiff, and said defendant refuses to pay the same. Wherefore plaintiff demands judgmnt of said defendant for the sum of $75, with interest thereon from June 27, 1899, together with the costs and expenses of this action." The record shows that, upon the case being moved for trial, the defendant moved to dismiss the complaint, whereupon plaintiff's counsel moved to amend. The latter motion was denied, and the former granted.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WIL LIAMS, and LAUGHLIN, JJ.

Bertrand Clover, for appellant.
Edward L. Jung, for respondent.

LAUGHLIN, J. 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 employé 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 employé 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. Publishing Co., 22 App. Div. 54, 47 N. Y. Supp. 747; Waldron v. Hendrickson, 40 App. Div. 7, 57 N. Y. Supp. 561; Wieland v. Willcox, 40 App. Div. 213, 57 N. Y. Supp. 1038. 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 for 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, 42 N. Y. Supp. 1112; Kenney v. Railroad Co., 49 Hun, 535, 2 N. Y. Supp. 512. 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. Railroad Co., 42 Hun, 447; Colby v. Colby, 81 Hun, 221, 30 N. Y. Supp. 677; Kraft v. Rice, 45 App. Div. 569, 61 N. Y. Supp. 368; Colrick v. Swinburne, 105 N. Y. 503, 12 N. E. 427; Sussdorff v. Schmidt, 55 N. Y. 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 $75 wages for the breach of contract, instead of $75 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. All

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(Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) INTOXICATING LIQUORS CERTIFICATE REVOCATION-ACTION OF TENANTRIGHTS OF LANDLORD.

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Laws 1896, c. 112, § 17, subd. 8, requires the written consent of two-thirds of the occupants of dwelling houses within 200 feet of a building before it can be used as a saloon, unless it was occupied for that purpose prior to March 23, 1896. Defendants purchased a building in January, 1900, which had been used as a saloon continuously since and prior to March 23, 1896, and they agreed that the tenant, who held a liquor tax certificate which expired May 1, 1900, might continue to occupy the building as a saloon until March 1, 1900, but the tenant, on January 29th, without notice to defendants, surrendered her certificate, and received a rebate thereon, though, when defendants obtained possession, there was nothing to indicate that the building had not been used continuously as a saloon. Held, that it was error to revoke defendant's liquor tax certificate for using the building as a saloon after March 1, 1900, without first obtaining the consent of two-thirds of the occupants of dwellings within 200 feet thereof, since they were not responsible for the action of the tenant in discontinuing the use of the building for saloon purposes.

Spring and Williams, JJ., dissenting.

Appeal from special term, Niagara county.

Petition by Louis N. Loper and another to revoke a liquor tax certificate issued to Daniel Slattery and James J. Hammond. From an order revoking the certificate, Daniel Slattery and James J. Hammond appeal. Reversed.

Argued before ADAMS, P. J., and MCLENNAN, SPRING, WIL LIAMS, and LAUGHLIN, JJ.

Richard Crowley, for appellants.
G. D. Judson, for respondents.

MCLENNAN, J. The facts in this case are not in dispute, and are of such a character as to present the interesting question whether privileges which attach to real property by virtue of a statute may be destroyed or materially impaired, without the knowledge or consent of the owner, by the secret act of a tenant, done in violation of his agreement of lease. The premises in question, situate in Gasport, in the town of Royalton, Niagara county, N. Y., were owned by one Charles Hathaway prior to March 23, 1896, when the liquor tax law, so called, went into effect, and until the 17th day of January, 1900, at which time they were purchased by the appellants. At the time the

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