McClelland v. Climax Hosiery Mills

Cabdozo, Ch. J.

(concurring). I agree with Judge Hubbs that the testimony as to other employment was too vague and indefinite to disprove the prima facie case of damage made out by the plaintiff. I agree with him also that Civil Practice Act, section 262, like Civil Practice Act, section 339, is inapplicable to a case where the defendant is in default for want of an answer. I am satisfied, however, that even if an answer had been served, a failure to seek other employment would not be matter in mitigation within the meaning of the statute, and would, therefore, be provable though not specially…