The action for damages for unlawful discharge proceeds upon the theory that the contract of employment is kept alive. Acceptance at the time of the alleged discharge by an employee of a check in full payment for salary and other claims, followed by the organization and carrying on shortly thereafter of his own competitive business, which he induced some and attempted to induce other employees of his former employer to join, is incompatible with the recovery of damages for such a discharge. It must be assumed under the circumstances that the acts of the employee constituted an acceptance by him of the termination by the employer of the employment agreement.
Judgment reversed, with costs, and judgment directed for defendant, with costs.
All concur. Present — Lydon, Hammer and FrankbnthaLER, JJ.