Hurwitz v. Gavrin

Plaintiff’s recovery on the first cause of action, we think, is sustained by the evidence and should not be disturbed.

*888However, the second cause of action should have been dismissed against all defendants for the reason that no proof was adduced to show that Dora Gavrin had been discharged by defendants. On the contrary, it appears that she voluntarily relinquished her employment. Moreover, even if the evidence as to premature discharge were deemed sufficient, plaintiff would not be entitled to recover since she failed to establish that any damage was suffered. The uncontradicted evidence showed that Dora Gavrin received as salary more than the maximum amount which she could have obtained under the terms of the agreement, assuming that she had been steadily employed until October, 1940, when she was adjudged an incompetent.

The judgment, accordingly, should be modified by eliminating therefrom the sum of $3,358.20, the amount recovered upon the second cause of action, and, as so modified, the judgment should be affirmed, with costs to the appellants.

Martin, P. J., Townley, Glennon, Dore and Cohn, JJ., concur.

Judgment unanimously modified by eliminating therefrom the sum of $3,358.20, the amount recovered upon the second cause of action, and as so modified affirmed, with costs to the appellants.