In his complaint the plaintiff alleges that the defendant employed plaintiff to superintend the mills of the defendant for three years at an annual salary of $4,000 a year; that the plaintiff performed all the agreements to be by him kept and performed, and performed *116the said contract on his part; that the defendant has failed to keep and perform said contract on its part, “ and has failed to pay this plaintiff in full for the services performed by him under said' Contract, and isnow indebted to tins plaintiff under said contract in the sum of One thousand dollars and interest thereon from the 10th day of September, 1904.” The answer is a general denial. The plaintiff was sworn as a witness in his own behalf. He testified that he continued in the defendant’s employment two years and nine months, when he was asked to resign by the president of the defendant; that in reply to this request he told the president that he was under contract with him for three years, and the president replied that it made no difference ; that the plaintiff’s salary would' be paid just tlie same. Ho services were rendered after that, and this suit is to recover the salary for the remaining three months of the three years, viz., $1,000.
At the close of plaintiff’s proof the court granted defendant’s motion to dismiss the complaint on the ground that the cause of action alleged in ■ the complaint was one for wages, and the proof shows .there was nothing due the plaintiff for wages, and that the action was not one for damages. The plaintiff then asked permission to amend the complaint,' and that application was denied. The plaintiff excepted to the denial of the application to amend and to thé granting of the motion, to dismiss the complaint, aiid ..these exceptions present the only questions for our determination.
The question with respect to dismissal is -simply one of pleading. The complaint is clearly one to recover for services rendered, and the plaintiff failed to prove the rendering of any services for which he had not been paid. It would have been error for the court under the allegation of performance to permit the plaintiff to show an excuse for non-performance. (La Chicotte v. Richmond R. & El. Co., 15 App. Div. 380.) The complaint is not based upon the theory, nor does it contain any sufficient allegations, that the defendant had ■waived performance of the services for the period sued for. That being so, the dismissal was. clearly proper. In a complaint to recover wages for services rendered, the plaintiff must prove as a condition precedent to the recovery that he performed the services, in question to the defendant, and under-such a complaint he cannot recover damages for a wrongful discharge, noy upoii the theory p£ con*117structive services. (Howard v. Daly, 61 N. Y. 362; Weed v. Burt, 78 id. 191; Perry v. Dickerson, 85 id. 345; Moody v. Leverich, 4 Daly, 401. And to the same effect in this department, Arnold v. Adams, 27 App. Div. 345; Allen v. Glen Creamery Co., 101 id. 306.)
The record on appeal does not clearly show what the motion to amend, which was denied by the court, was, although it may be presumed that it was to change the cause of action to one for damages. The case last cited in this department holds that an action for damages for a breach of contract of employment because of wrongful discharge is entirely distinct from an action brought by the employee to recover wages. That was also held in effect in Arnold v. Adams (supra).
The amendment seeking to set up a new cause of action was one that under the authorities must be made at Special Term ajid was not within the power of the court to grant at the Trial Term under section 723.of the Code of Civil Procedure. The authorities are uniform to that effect and need not be cited.
The judgment. I think, was clearly right and should be affirmed, with costs.
Cooheane, J., concurred.
Judgment reversed and new trial granted, with costs to appellant to abide event.