Ware Bros. v. Cortland Cart & Carriage Co.

Appellate Division of the Supreme Court of New York

Ware Bros. v. Cortland Cart & Carriage Co.

148 A.D. 546, 133 N.Y.S. 60, 1911 N.Y. App. Div. LEXIS 244

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 28, 1911

StatusPublished

Cited by2 cases

This text of 148 A.D. 546 (Ware Bros. v. Cortland Cart & Carriage Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ware Bros. v. Cortland Cart & Carriage Co., 148 A.D. 546, 133 N.Y.S. 60, 1911 N.Y. App. Div. LEXIS 244 (N.Y. Ct. App. 1911).

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Opinions

Kellogg, J.:

In order to recover full wages where the employer has breached his contract, the employee is bound to use reasonable diligence to procure other employment of the same kind, in order to relieve the employer as much as possible from loss consequent upon the breach, but he is not bound to look for or accept occupation of another kind. (Fuchs v. Koerner, 107 N. Y. 529; Milage v. Woodward, 186 id. 252.) In the Milage case the court said: “The fact that the boat was moored at a public place in the city of Rochester, where it would be natural for any one to go who desired to secure transportation of goods on the canal, is sufficient. It certainly cannot be successfully asserted that the plaintiff, in view of these facts, admitted that he made no effort to secure employment.” There the plaintiff and the boat were apparently in the market for employment. An examination of the cases will show, I think, that a plaintiff must either show an effort to obtain work or must show facts and circumstances which indicate that he put himself in such a position with reference to the market for labor that those desiring services of the kind he had to sell would naturally seek him.

The Court of Appeals treats this contract as one of employment. ' It is conceded that the advertisement was to be published in a particular place in the plaintiff’s magazine, probably the most desirable place. After the defendant had repudiated the contract, the plaintiff continued the publication and the space was fully occupied. It was thereby apparently withdrawn from the market, and it was unreasonable to expect that others would apply for it. The plaintiff was, therefore, called upon to show that it had made some reasonable effort to fill that space, or in some way had indicated to the trade that a customer was desired for it. I, therefore, favor a reversal of the judgment.

All concurred, except Houghton, J., dissenting in opinion, in which Sewell, J., concurred.

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Kellogg, J.:

In order to recover full wages where the employer has breached his contract, the employee is bound to use reasonable diligence to procure other employment of the same kind, in order to relieve the employer as much as possible from loss consequent upon the breach, but he is not bound to look for or accept occupation of another kind. (Fuchs v. Koerner, 107 N. Y. 529; Milage v. Woodward, 186 id. 252.) In the Milage case the court said: “The fact that the boat was moored at a public place in the city of Rochester, where it would be natural for any one to go who desired to secure transportation of goods on the canal, is sufficient. It certainly cannot be successfully asserted that the plaintiff, in view of these facts, admitted that he made no effort to secure employment.” There the plaintiff and the boat were apparently in the market for employment. An examination of the cases will show, I think, that a plaintiff must either show an effort to obtain work or must show facts and circumstances which indicate that he put himself in such a position with reference to the market for labor that those desiring services of the kind he had to sell would naturally seek him.

The Court of Appeals treats this contract as one of employment. ' It is conceded that the advertisement was to be published in a particular place in the plaintiff’s magazine, probably the most desirable place. After the defendant had repudiated the contract, the plaintiff continued the publication and the space was fully occupied. It was thereby apparently withdrawn from the market, and it was unreasonable to expect that others would apply for it. The plaintiff was, therefore, called upon to show that it had made some reasonable effort to fill that space, or in some way had indicated to the trade that a customer was desired for it. I, therefore, favor a reversal of the judgment.

All concurred, except Houghton, J., dissenting in opinion, in which Sewell, J., concurred.

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Bluebook (online)

148 A.D. 546, 133 N.Y.S. 60, 1911 N.Y. App. Div. LEXIS 244, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ware-bros-v-cortland-cart-carriage-co-nyappdiv-1911.

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