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duties pertaining to the game of baseball as may be required of him by said party of the first part at such reasonable time and places as said party of the first part may designate for the American League season for the year 1912, beginning on or about the 15th day of April, 1912, and ending on or about the 15th day of October, 1912, which period of time shall constitute the life of this contract unless sooner terminated in accordance with the further provisions thereof." The contract further provided for the termination of the contract upon certain conditions, one of which was that the contract could be terminated by the defendant giving the plaiirtiff 10 days' written notice to end and determine all its liabilities and obligations under the contract. The plaintiff entered on the performance of the contract and continued under it, receiving the compensation provided until May 15th, when the president of the defendant told the plaintiff that he wished him to go to Jersey City and play with that club. The plaintiff protested, but the defendant's president insisted, and the plaintiff finally acquiesced; but it was under the promise of the defendant's president that the plaintiff should be recalled to the defendant club. The plaintiff was told to sign a contract with the Jersey City Club, but that contract should be upon the same terms as the plaintiff's contract with the defendant. The plaintiff followed these directions and went to Jersey City and signed such a contract with the Jersey City Club, which contract, however, did not continue during the whole of the period during which the plaintiff's contract with the defendant club was to continue. The Jersey City Club terminated the plaintiff's service with it, when the plaintiff returned to defendant and offered to continue its service with it, which defendant refused. The plaintiff has been defeated upon the ground that by signing such contract with the Jersey City Club he abrogated his contract with the defendant. The plaintiff's contract with the Jersey City Club, however, was executed by direction of the defendant and was not to terminate the contract between the plaintiff and defendant but in execution of it.

Under such circumstances, I do not think that the contract between the parties to this action was terminated. It was in accordance with the provisions of the contract that the plaintiff was directed to play for the Jersey City Club during the period wherein it required his services, and the signing of the contract with that club was by direction of the defendant. When the Jersey City Club dispensed with the plaintiff's services, he was entitled to the benefit of his contract with the defendant, and, after the Jersey City Club refused further to employ the plaintiff and to pay the sum that the defendant had agreed to pay ior the services of the plaintiff, I think the obligation of the defendant to continue to pay for such services as the contract required him to perform revived and continued during the terms of the employment. The execution of the contract by the plaintiff with the Jersey City Club as enforced upon him as an obligation under his contract with the defendant could not therefore be a breach of the plaintiff's contract or justify the defendant in repudiating its obligation to pay under the contract. It is perfectly apparent that it was so considered by both parties; for, when the plaintiff desired a release from his obligations under this contract after the Jersey City Club had dispensed with his services, the

defendant still insisted that the contract was in force, refused to grant a release, and thus prevented the plaintiff from obtaining other employment which would have secured him that payment of the compensation that the defendant had agreed to pay. Nor was there anything in this contract that justified the defendant in compelling the plaintiff to accept employment with the Denver Club at a salary less than that which the defendant had agreed to pay.

I therefore concur in the reversal of this judgment.

MCLAUGHLIN, J. (dissenting). The contract under consideration is one-sided and apparently drawn in the interest of the defendant, without very much regard to the interest of the plaintiff's assignor. But it is a contract nevertheless. Persons competent to contract can make such agreements as they see fît, so long as the same are not opposed to good morals, against public policy or contrary to law. Courts do not make contracts. Their powers are limited to construing them. It is not claimed that the contract is invalid, and therefore it should be enforced according to its terms. But I am unable to concur in the construction put upon it by Mr. Justice LAUGHLIN. There is no express provision authorizing the transfer of a player from one club to another without the player's consent. It is true it contains a recital that the parties agree to “respect and abide by all of the provisions and conditions of the National Agreement and rules of the National Commission.” The National Agreement and rules of the National Commission, as I understand them, regulate the transfer of a player among certain clubs, but do not give to such clubs the absolute right thereto, unless the player consents. If this be the correct construction, then Hageman, when he was told to go to the Jersey City Club, could have refused to do so unless that club accepted the contract with the defendant, or entered into another one with him on as favorable terms. He consented, however, to his release to the Jersey City Club and signed a contract with it at the same salary and covering substantially the same period.

When he entered into that contract, he thereby gave up any right he had to enforce his contract with the defendant. Griffin v. Brooklyn Ball Club, 68 App. Div. 566,73 N. Y. Supp. 864, affirmed 174 N. Y. 535, 66 N. E. 1109. But it is suggested in this connection that the Boston Club released Hageman to the Jersey City Club under an optional contract with it by which his return could be had. Assuming this to be so, as between the Boston Club and the Jersey City Club, Hageman could have refused to recognize that agreement if he chose to do so, and looked to the Jersey City Club for the complete performance of its contract with him.

A majority of the court is of the opinion that, by virtue of the rules of the National Commission, a player may, subject to those rules, be transferred from one club to another, regardless of his will in the matter. Under this construction, it becomes important to consider the alleged optional contract between the Boston and Jersey City Clubs. In view of the contract which Hageman signed with the Jersey City Club, the burden of proving that his release was optional and not absolute was upon the plaintiff. Rule 31 of the rules of the National Commission is as follows:

"Whenever a major league club releases a player to a National Association Club, under an agreement to secure the return of such player, or any other agreement other than an outright release or sale, such agreement shall not be considered binding unless a copy thereof shall have been first filed with and approved by the Commission, and all such agreements, when approved by the Commission, shall be promulgated by the secretary in condensed form.

It was, then, not only necessary for the plaintiff to establish an optional agreement between the Boston and Jersey City Clubs, but it was essential that it appear that such agreement had been filed and approved by the Commission. The alleged optional contract was not produced at the trial, and the only evidence in support of such contract is that Hageman was assured he would return to the Boston Club later in the season, together with the inference which may be drawn from the defendant's asserted control over Hageman after his release by the Jersey City Club. Whatever arrangement resulted in the surrender of Hageman by the Jersey City Club, the plaintiff failed to establish a contract enforceable under the rules of the National Commission, and it is only such contracts which can, by any possible construction, be incorporated in the contract between Hageman and the Boston Club.

For these reasons, I dissent from a reversal of the judgment, and think the same should be affirmed.

DOWLING, J., concurs.

LA CHICOTTE v. CITY OF NEW YORK. (No. 6803.) (Supreme Court, Appellate Division, First Department. February 5, 1915.) 1. MUNICIPAL CORPORATIONS ($ 220*) — EMPLOYÉS - WRONGFUL DISCHARGE

RECOVERY OF SALARY--SET-OFFS.

Where an assistant engineer in a city department of bridges, wrong. fully discharged and subsequently reinstated while separated from the department, induced a contractor to bid on a bridge for which plans had been prepared prior to his discharge, and assisted the contractor in making the bid, and after his reinstatement, pursuant to an understanding that if the contract resulted in a profit he should be paid for bringing it to the contractor's attention, the contractor paid him a part of the profits, the city was entitled to offset such payment against the salary recoverable for the period of his wrongful separation from the municipal employ. ment, since an employé wrongfully discharged may only recover what he would have received if continued in the employment less what he may have earned during the term, and it is not essential that the amount so earned shall have been actually paid during the term of unemployment, and the payment in question was not a gift or gratuity, but rested upon a sufficient moral consideration.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88

599–608; Dec. Dig. $ 220.*] 2. MUNICIPAL CORPORATIONS ($ 220*)-EMPLOYÉS—WRONGFUL DISCHARGE

RECOVERY OF SALARY-BURDEN OF PROOF.

In an action by a city employé wrongfully discharged to recover his salary, while the burden was on the city to reduce the damages by showing what the employé had earned in any outside employment, where it showed that he had accepted outside employment and had realized a large

sum of money from the person by whom he was employed, the presump*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tion was that such sum was a payment for services and not a gift, and, if it was in fact a gift, the burden rested upon the employé so to prove.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $8

599-608; Dec. Dig. $ 220.*] 3. MUNICIPAL CORPORATIONS (S 123*)—"OFFICER" OR "EMPLOYÉ.”

An assistant engineer in the department of bridges of the city of New York is an “employé” whose relation to the city is contractual and not an "officer."

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. $ 341; Dec. Dig. § 123.*

For other definitions, see Words and Phrases, First and Second Series,

Employé; Officer.] 4. MUNICIPAL CORPORATIONS (8 1002*)—CLAIMS-FILING—INTEREST.

Where a city employé, wrongfully discharged, filed with the comptroller a claim for salary at the rate of $7,500 per annum and subsequently filed a second claim at the rate of $6,000 per annum, which was intended as a withdrawal of the prior claim, be could recover interest only from the filing of the second claim.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. $ 2174; Dec. Dig. $ 1002.*]

Appeal from Trial Term, New York County.

Action by Henry A. La Chicotte against the City of New York. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed, and new trial granted.

Argued before INGRAHAM, P. J., and LAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ.

E. Crosby Kindleberger, of New York City, for appellant.
J. Quintus Cohen, of New York City, for respondent.

SCOTT, J. Plaintiff was appointed principal assistant engineer in the department of bridges of the city of New York on February 1, 1903. The salary attached to the position at that time was $4,500 per annum, and plaintiff was paid at that rate until December 1, 1903, after which date he has been paid at the rate of $6,000 per annum. On December 31, 1904, plaintiff was separated from the department on the announced ground of lack of work. He sued out a writ of mandamus to compel his reinstatement, and after some litigation was reinstated on April 8, 1907. He was offered his original salary of $4,500, which was claimed by the head of the department to be the salary legally attached to the position. This he refused to accept for a long time; but he finally did accept it, protesting, however, that he was entitled to be paid at the rate of $7,500 per annum. In this action, by his amended complaint, he sues to recover salary during the period of his separation from the department at the rate of $7,500 per annum, and for the difference between $4,500 and $7,500 per annum from the date of his reinstatement to the entry of judgment.

[1, 2] The principal question raised at the trial was as to the right of the defendant to offset, against any amount found due from it to plaintiff, the sum of $40,000 paid to plaintiff some time after his reinstatement, but claimed to have been earned and paid for services rendered by him during the period of his separation from the department. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

The facts relating to this payment of $40,000 are not in dispute. At some time while plaintiff was still in the employ of the city, plans had been prepared and bids solicited for building a bridge over the East River known as the Manhattan Bridge. The bids, however, were all rejected pursuant to an order made by the Supreme Court. In the early part of 1906, the city by the department of bridges invited other bids for the construction of Manhattan Bridge upon somewhat altered plans and specifications. Plaintiff met one Patrick Ryan, a bridge contractor who transacted business through a corporation known as the Ryan-Parker Construction Company. Plaintiff strongly urged Mr. Ryan to become a bidder for the contract to construct the bridge, pointing out the very large profits which he believed could be realized. Ryan decided to become a bidder, and plaintiff assisted in making up the bid, and, after the bid had been made and accepted, rendered service to Ryan, or his company, and was paid $1,500, being, as he estimates, compensation paid for three months' work of the nature above indicated. Plaintiff testified that at some time prior to his reinstatement in the bridge department he asked Ryan to agree to give him 15 per cent. of the profits to be realized from the contract. Ryan considered this percentage rather too large, but said that he would take care of plaintiff, mentioning 10 per cent. as a more reasonable percentage. Ultimately, when the work was nearly completed, Ryan paid to plaintiff the sum of $40,000. Plaintiff demurred somewhat at the amount, considering that he should receive a larger sum, but finally accepted it. The question whether or not this sum was paid to plaintiff as compensation for services rendered to Ryan was submitted to the jury for a special verdict, and the jury found that it was not. This finding in our opinion was distinctly against the evidence. After examining all the testimony, of which only a small part has been referred to, it seems to be clear beyond a doubt that what Ryan paid for, and what plaintiff understood he was being paid for, were the services plaintiff had rendered in bringing Ryan's attention to the opportunity to bid on the contract. The verdict of the jury was no doubt due in some measure to the rather involved and anbiguous form in which the question was submitted to them, and in the error of the court in refusing to charge that:

"If the jury believed that the $40,000 was paid to the plaintiff in appreciation of his having directed Mr. Ryan's attention to said contract for the erection of the Manhattan Bridge, and suggesting that he might secure the same, then it was for services.”

The rule in such cases is that an employé who has been wrongfully discharged may recover as damages what he would have received if continued in the employment, less what he may have earned during the term. If the amount so earned exceeds the amount which would have been earned if the employment had been continued, obviously there has been no damage. Nor is it essential that the amount so earned shall have been actually received during the term of unemployment. It is sufficient that it has been earned during that period, even if the accepted payment has been made after the expiration of the term. In the present case plaintiff's opportunity to perform a service to Ryan,

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