Wieland v. Willcox

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

Decided May 15, 1899

Appellate Division of the Supreme Court of the State of New York · decided 1899-05-15

Appeal by the plaintiff, Henry L. Wieland, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 5th day of January, 1898, granting the defendant’s motion to set aside a verdict previously rendered in favor of the plaintiff and directing a new trial.

Relies on Howard v. . Daly

Decided 1899-05-15

¶1Memorandum

Per Curiam:

¶2The previous recovery by the plaintiff for damages for a wrongful discharge from his employment, is a bar to the maintenance of the present action. It is settled law in this State that upon such a discharge the only action the employee can bring 'is for the breach of the contract, and not one for wages on the theory of constructive service. The breach being single, but a single action can be brought on it, and in that action the plaintiff must recover all his damages. (Howard v. Daly, 61 N. Y. 362; Weed v. Burt, 78 id. 191; Basset v. French, 31 N. Y. Supp. 667; Waldron v. Hendrickson, ante, p. 7.)

¶3The order appealed from should be affirmed, with costs.

¶4All concurred.

¶5Order affirmed, with costs.