Marx v. New York Ribbon Co.

Bijur, J. (dissenting).

Xdissent on the ground that where an action is brought for a wrongful discharge after the term of the original employment has ended and defendant shows that plaintiff was incapacitated by illness from working and thereby from earning wages during a period within the term, the damages recoverable should be reduced by the amount of the compensation provided by the contract of employment for the period of incapacity. Hughes v. Toledo Scale Co., 112 Mo. App. 91, 101, inadvertently cited for the contrary proposition in Labatt Mast. & Serv. § 396, subd. f, p. 3205. I do not doubt that there may be cases in which the plaintiff may in reply be able to show that such deduction should not be made, but *556there is no suggestion, either by way of proof or argument, of any such condition in the case at bar.

In my opinion the judgment should be affirmed.

Judgment upon plaintiff’s appeal modified, and as so modified affirmed, with twenty-five dollars costs. Upon defendant’s appeal judgment affirmed, with twenty-five dollars costs.