The judgment and order should be affirmed, with costs, for the following reasons:
(1) The written document annexed to the complaint as “ Schedule A ” (Exhibit 1), executed September 27, 1929, taken in connection with the conversations and transactions had between plaintiff and the officers and representatives of defendant and the conduct of the parties as indicated by the testimony in the record, constitute a contract for ten years’ service by plaintiff as employee to defendant as employer. (See, also, First Department memorandum in this same case, 236 App. Div. 785.) In addition the jury found the existence of such a contract as a fact under a charge to which no exception was taken.
(2) Defendant has not proved that it had a valid reason for discharging plaintiff from its employ.
(3) This being an action for damages for breach of contract the correct measure of damages was applied, viz., the full amount d salary unpaid, due and to become due, subject to reasonable deduo *472tions to be made by the jury by reason of amounts otherwise earned or that should be earned by plaintiff, his probable duration of life, his earning ability and other ldndred uncertainties growing out of the contract. (Howard v. Daly, 61 N. Y. 362; Davis v. Dodge, 126 App. Div. 469; Denniston v. Finnegan, 174 id. 8; Cottone v. Murray's, 138 id. 874; Pierce v. Tennessee Coal, etc., Co., 173 U. S. 1, 16; Banta v. Bania, 84 App. Div. 138; Clark v. West, 137 id. 23; McClelland v. Climax Hosiery Mills, 252 N. Y. 347; 253 id. 533; Roehm v. Horst, 178 U. S. 1, 21; Cutter v. Gillette, 163 Mass. 95; American Law Institute, Restatement of the Law of Contracts, § 338; Sedgwick Dam. [9th ed.] §§ 665, 666.)
In reliance upon the conclusions reached in Nichols v. Scranton Steel Co. (137 N. Y. 471) and Baer v. Durham Duplex Razor Co. (228 App. Div. 350; affd. on appeal by defendant only, 254 N. Y. 570), it is urged that after allowing plaintiff prima facie the full amount of his salary earned and to be earned to the end of his term, the “ present worth ” of that amount should have been ascertained before deductions were made for other moneys earned or that should reasonably be earned. The invalidity of that claim lies in this: The cases last cited were cases involving — the one a sale of iron, the other the marketing of razors — and in such cases, in the absence of proof that the vendor in the one case and the owner and patentee of the razor in the other lessened, or should have lessened his damages by making similar substituted arrangements with some third person, a jury can make no such deductions or offsets as are indicated hereinbefore in the instant case dealing with a personal service contract. It is clear to us that when deductions or adjustments cannot be made under the proof in these breach of contract cases, ascertainment of “ present worth ” brings about an equitable result as to amount of damages. In the instant case, following the rule as well stated in Davis v. Dodge (supra, at p. 475), the jury found that a deduction of $5,800 should be made from the total amount of salary due and to become due. In so doing the jury must be held to have taken into consideration all the proper elements of offset — and having done so the real “ present worth ” of the salary due and to become due has been arrived at and there is no conflict between the two lines of cases cited.
“ It is not the law that damages which may be larger or smaller because of such uncertainties are not recoverable.” (Davis v. Dodge, supra, p. 475, quoting from Cutter v. Gillette, supra.) “ Although he [plaintiff] may receive his money earlier in this way and may gain or lose by the estimation of his damage in advance of the time for performance, still, as we have seen, he has the right *473to accept the situation tendered him, and the other party cannot complain.” (Roehm v. Horst, 178 U. S. 1, 21.)
(4) Interest from date of breach of contract to time of trial was properly allowed.. The damages were unliquidated since the amount, if any, to be deducted from the unpaid balance of plaintiff’s salary for the full term of employment was left to the sound discretion of the jury in a correct charge (McClelland v. Climax Hosiery Mills, supra), and the jury found that $5,800 should be deducted from salary due. Thus, under the cases hereinbefore cited, the total amount of unliquidated damages due to plaintiff on date of breach, November 1, 1930, was ascertained and under section 480 of the Civil Practice Act the allowance of interest from that date to date of trial was correct. The old New York rule respecting allowance of interest on unliquidated damages as illustrated, e. g., in Vandyke v. Webb (167 App. Div. 445, 457), has been superseded by section 480 of the Civil Practice Act in effect April 4, 1927. (McLaughlin v. Brinckerhoff, 222 App. Div. 458; Hackenheimer v. Kurtzmann, 235 N. Y. 57, 67.) The incorrect charge of the learned trial court relative to interest allowable was cured by the reduction of the amount of the judgment on motion for new trial from $118,762.53 to $113,484.75.
(5) Any informality in the proceedings of the jury while deliberating or in their manner of arriving at a verdict is inconsequential in view of the result finally reached by the learned trial court.
Thompson, J., concurs.
Judgment and order reversed on the facts and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff shall, within ten days, stipulate to reduce the verdict to the sum of $88,752.78 as of the date of the rendition thereof, in which event the judgment is modified accordingly and as so modified is, together with the order, affirmed, without costs of this appeal to either party.