Silbert v. Katz

151 N.Y.S. 510

Opinion

BIJUR, J.

Plaintiff made a contract to work as foreman for defendant, and deposited $100 with defendant as security for faithful performance of the contract. Although the deposit is described as “liquidated damages,” the question whether it is to be treated as such or as a penalty does not arise. It is shown, without contradiction, that plaintiff refused to perform his contract by failing even to begin to render services thereunder. Thereupon the defendant employed another man in his place. Although the subject was not amplified nor thoroughly developed, the defendant gave some evidence, from which it appeared that he had made efforts to replace the plaintiff for the same wage, but was unable to obtain another foreman for less than $55 a week.

Upon the record, defendant’s counterclaim for damages was proved, and he should have had judgment therefor.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.