I agree with Judge HUBBS that the testimony as to other employment was too vague and indefinite to disprove the primafacie case of damage made out by the plaintiff. I agree with him also that Civil Practice Act, section 262, like Civil Practice Act, section 339, is inapplicable to a case where the defendant is in default for want of an answer. I am satisfied, however, that even if an answer had been served, a failure to seek other employment would not be matter *Page 355 in mitigation within the meaning of the statute, and would, therefore, be provable though not specially pleaded. It is important to avoid any implication to the contrary.
For many years the Codes of Procedure and of Civil Procedure had rules as to the pleading of "mitigating circumstances" in certain classes of actions, i.e., in actions of libel and slander (Code of Procedure, § 165), and in actions to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property (Code Civ. Proc. § 536). These provisions were carried forward into section 339 of the Civil Practice Act, which reads as follows: "Proving mitigating circumstances in action for wrong. In an action to recover damages for the breach of a promise to marry, or for a personal injury, or an injury to property, the defendant may prove, at the trial, facts not amounting to a total defense, tending to mitigate or otherwise reduce the plaintiff's damages, if they are set forth in the answer, either with or without one or more defenses to the entire cause of action. A defendant, in default for want of an answer, may prove facts of that description upon a reference or inquiry to ascertain the amount of the plaintiff's damages."
The courts had occasion from time to time to pass upon the meaning of the phrases "mitigating circumstances" or facts "tending to mitigate or otherwise reduce the * * * damages," as used in these statutes. The rule came to be established that the mitigating circumstances referred to were those that bore upon a defendant's liability for punitive or exemplary damages by reducing or softening the moral or social culpability attaching to his act, or upon his liability for actual damages by showing that, though suffered, they had been partially extinguished. For illustration, a defendant might wish to show that in publishing a libel he had acted without malice, upon credible reports, and in the belief that what he was writing was the truth. To gain for himself the benefit of these mitigating circumstances in reduction or extinguishment *Page 356 of punitive damages, there was need for him to plead them (Wachter v. Quenzer, 29 N.Y. 547; Spooner v. Keeler,51 N.Y. 527, 535; Bradner v. Faulkner, 93 N.Y. 515; Gressman v. Morning Journal Assn., 197 N.Y. 474). On the other hand, there could never be "mitigating circumstances" to cut down the recovery of damages actually suffered unless afterwards extinguished pro tanto by payment or release (Gressman v.Morning Journal Assn., supra; Lynch v. Figge, 194 App. Div. 126,132). Matter tending to the disproof of actual damages, or damages claimed to be actual, was not matter in mitigation within the meaning of the statute, and might be proved by a defendant though not mentioned in the answer (Wandell v. Edwards, 25 Hun, 498; Gulerette v. McKinley, 27 Hun, 321; Young v.Johnson, 46 Hun, 164; 123 N.Y. 226; Osterheld v. Star Co.,146 App. Div. 388, 394; Walmsley v. Kopczynski, 202 App. Div. 104,108). The doctrine of these decisions is in harmony with the rule that an allegation of a complaint as to a plaintiff's general damages is not the subject of traverse in an answer, and may be disputed by a defendant though not covered by a denial (Howell v. Bennett, 74 Hun, 555, 558, and cases there cited).A fortiori it may be disputed without plea in mitigation.
Until the adoption of the Civil Practice Act, the statutory rules with reference to mitigating circumstances were confined, as I have said, to three classes of actions. At an early date, however, the question came before the courts as to the practice to be followed where matter in mitigation was to be proved by a defendant sued in assumpsit or in debt. In the leading case ofMcKyring v. Bull (16 N.Y. 297, 304), this court laid down the rule that there must be a plea even in such actions whenever the matter to be proved was in full or in partial discharge of a cause of action theretofore accrued, since this was "new matter" within the meaning of the Code. The case there considered was an action in assumpsit for the *Page 357 value of services. In such an action full payment is not provable unless pleaded as a defense (cf. Lerche v. Brasher, 104 N.Y. 157). Our ruling was that partial payment mitigating the damages was not provable unless pleaded as a partial defense. The cause of action became complete when the services were rendered. Evidence of later payments was not matter tending to disprove the cause of action at the date of its accrual, nor even tending to reduce the amount then owing for the services as a fixed and certain obligation. Like proof of release or of accord and satisfaction, it made out a discharge, pro tanto, of a liability once existing. In substance, it was confession and avoidance. Nothing in that decision or any other gives support to the conclusion that there must be a plea in mitigation where the matter to be proved by the defendant is directed to his contention that the damages sued for by the plaintiff were never suffered as claimed (cf. Gabay v. Doane, 77 App. Div. 413; Pomeroy, Code Remedies [5th ed.], §§ 570, 571).
The question now is whether section 262 of the Civil Practice Act has brought with it the need for a new and different definition of "mitigating circumstances." The provisions of that section so far as relevant are as follows: "A partial defense may be set forth [in an answer], but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. * * * Matter tending only to mitigate or reduce damages is a partial defense, within the meaning of this section." The sentence last quoted was not in the earlier codes.
I see no reason to believe that this section has changed the definition of "mitigating circumstances." If it has, the curious result will follow that even in the classes of cases enumerated in section 339, matter disproving actual damages must be pleaded today, though never required to be pleaded in the past. I cannot bring myself to believe that a change so revolutionary was brought about *Page 358 by merely declaring in respect of actions generally the same rule of pleading long in force with reference to actions of certain designated classes. Mitigating circumstances are not those that reduce the actual damages by showing that they were not suffered. Mitigating circumstances are those that affect the basis for an award of exemplary damages, or reduce actual damages by showing, not that they were never suffered, but that they have been partially extinguished (cf. Gabay v. Doane, supra.)
The final question is this: Does a servant's refusal to accept other employment amount to an extinguishment of liability for damage actually suffered, or to disproof of the claim that damage to the extent demanded was actually suffered? Plainly, I think, the latter. Upon a wrongful discharge of a servant during the term of employment, the prima facie measure of damage is the wage that would be payable during the remainder of the term (Howard v. Daly, 61 N.Y. 362, 371; Milage v. Woodward,186 N.Y. 252, 257; Warren v. Stoddart, 105 U.S. 224). This is only the prima facie measure. There is no fixed and certain obligation on the part of the master to respond in damages for that amount. The obligation of the master is merely to pay whatever damages have actually been suffered, and these exclude damages that a servant, acting reasonably, would have diminished or avoided. Proof of a prima facie case will charge the master with a duty of going forward with the evidence. This does not mean that he has the burden of proof in the strict sense, a burden that would require him to plead the matter to be proved (Whitlatch v. Fidelity Casualty Co., 149 N.Y. 45, 50;Irving v. Irving, 90 Hun, 422; 149 N.Y. 573).
The statement is made not infrequently in treatise and decision that a servant wrongfully discharged is "under a duty" to the master to reduce the damages, if he can. The phrase is accurate enough for most purposes, yet *Page 359 susceptible of misunderstanding, if emphasized too sharply (American Law Institute, Tentative Restatement of the Law of Contracts, § 328). The servant is free to accept employment or reject it according to his uncensored pleasure. What is meant by the supposed duty is merely this, that if he unreasonably reject, he will not be heard to say that the loss of wages from then on shall be deemed the jural consequence of the earlier discharge. He has broken the chain of causation, and loss resulting to him thereafter is suffered through his own act. It is not damage that has been caused by the wrongful act of the employer.
I am confirmed in the conclusion that evidence as to these matters does not come within the description of mitigating circumstances when I reflect where we shall be led if we adopt a different rule. A manufacturer of merchandise brings an action against the buyer by reason of an anticipatory refusal to accept the merchandise when made. Must the defendant plead in his answer that the plaintiff aggravated the damages by proceeding with the process of manufacture after notice to desist? A buyer sues a manufacturer for an injury to merchandise resulting, as he claims, from packing in defective cases. Must the defendant plead in defense that the plaintiff kept the goods in the cases after knowledge of the defect when at a trifling expense they could have been repacked in cases that were perfect? In these and countless other instances, the course of justice will be greatly embarrassed if the damage actually suffered as a jural consequence of the wrong may not be proved to be less without a plea in mitigation. Often the truth does not come out without the probe of cross-examination in the progress of the trial. The defendant cannot know it in advance, or even have information about it, so as to supply a basis for a pleading. This is conspicuously so in the very class of actions now before us, where the servant often sues immediately after his discharge, and the employer does not know until the *Page 360 trial whether there has been diligence or inaction in looking for employment elsewhere. We encourage reckless pleading if we say that in such circumstances there can be no reduction of the damages, no proof that they were not actual, unless the defendant has the hardihood to assert a plea in mitigation.
There should be a reassessment of the damages in accordance with these views.
CARDOZO, Ch. J., concurs in opinion; POUND, CRANE, LEHMAN, KELLOGG and O'BRIEN, JJ., concur in both opinions.
Judgment accordingly.