This action was brought to recover damages caused by the wrongful discharge of the plaintiff from the defendant’s employ, and also to recover the sum of $175, the aggregate amount retained by the defendant from the wages of the plaintiff, at the rate of $5 per week, as security for the faithful performance of the con-' tract between the parties. The answer denied that the defendant dis-' *667charged the plaintiff, and pleaded that the plaintiff did not faithfully perform the contract, and abandoned the defendant’s employ. The jury returned a verdict in favor of the defendant.
[1] Upon the proof adduced, we think that, assuming that the plaintiff did abandon the defendant’s employ, he was, nevertheless, ■entitled to recover the money which had been deducted by the defendant, and retained by him as security for the faithful performance of his duties. Up to the time when the plaintiff abandoned his employment, he had faithfully performed his duties, and he was, therefore, entitled to his full wages for the time that he had been in the defendant’s employ.
[2] If the contract of employment is to be construed as meaning that, if the plaintiff abandoned his employment, he should forfeit the .sum which had been deducted from his weekly salary as security, then it provided for a penalty, and not for liquidated damages. Schmieder v. Kingsley, 6 Misc. Rep. 107, 26 N. Y. Supp. 31.
The sum retained as security bore no relation to any pecuniary ■estimate of the loss which the defendant might sustain by reason of the plaintiff’s breach of contract.
Order reversed and new trial ordered, with costs to the appellant .to abide the event. All concur.