BIJUR, J.Plaintiff sued for damages for his unlawful discharge in May, 1913, under a contract of employment with defendants terminating in December.
*381[1] The learned judge below excluded from the consideration of the jury any damages accruing after July 17th on the ground that on that date defendants had offered plaintiff re-employment. It was, however, at best a question for the jury whether, under the circumstances, plaintiff was bound to accept such re-employment. See Heiferman v. Greenhut Co., 83 Misc. Rep. 435, 145 N. Y. Supp. 142.
[2] Further error was committed in refusing to charge that the burden of proving plaintiff’s opportunity to earn money after the discharge lay upon the defendants. Howard v. Daly, 61 N. Y. 362, 377, 19 Am. Rep. 285.
Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.