179 A.D. 810 | N.Y. App. Div. | 1917
There are two actions, one for wages alleged to be due up to the timé of the discharge and the second for damages for wrongful discharge. They were tried together. The plaintiff is a motion picture actor and was employed in the star part of a certain motion picture under a contract which provides: “ The Corporation shall employ the Artist, and the Artist shall render his services to the Corporation in acting, posing for and participating in the production of one (1) feature motion picture for a period of not less than three (3) weeks, beginning at a time subsequent to December 1, 1915, to be named by the Artist, upon four (4) weeks’ written notice to the Corporation, and for such additional period of time immediately following such period of three weeks as the Corporation may, in its discretion, require such services for the purpose of completing such motion picture. The Artist shall devote his entire time and attention to the rendition of such services to the Corporation to the utmost of his ability and on consecutive working days. The Corporation shall select the subject-matter of such motion picture, and shall in all respects determine and control all matters relating to the production thereof.”
The learned trial judge submitted the question to the jury whether the order which the servant disobeyed was reasonable, thus leaving it to the jury to decide as to the reasonableness of the order; but under the facts in this case there was no question of fact to present to the jury. As was said by the Court of Appeals in Jerome v. Queen City Cycle Co. (163 N.Y. 351, 358): “The excuse given by him to justify his disobedience of orders presented no question of fact for the jury, for the law does not permit a servant to defy his master
By the terms of the contract the plaintiff had agreed to devote “ his entire time and attention to the rendition of such services to the Corporation to the utmost of his ability,” and that “the Corporation shall * * * in all respects determine and control all matters relating to the production ” of the picture. Therefore, unless the order was so unreasonable tnat there could be no question presented, it was the duty of the plaintiff to obey. The question, therefore, of reasonableness or unreasonableness becomes a question of law but not a question of fact for the jury. As this court said in Costet v. Jeantet (108 App. Div. 201): “ Where an order is given to an employee, and he disobeys it, his employer having an undoubted right to direct the times and manner in which service shall be performed, provided there is no specific agreement with relation thereto, the right of the employer to discharge for such disobedience follows necessarily.” (See, also, Macauley v. Press Publishing Co., 170 App. Div. 640.)
The learned trial justice, therefore, erred in submitting the case to the jury, and he should have dismissed the complaint on the defendant’s motion, the contract being entire and the plaintiff having broken it prior to its completion.
The determinations of the Appellate Term and the judgments of the Municipal Court are, therefore, reversed, and the complaints dismissed, with costs in all courts.
Clarke, P. J., Laughlin, Dowling and Shearn, JJ., concurred.
Determinations and judgments reversed and complaints dismissed, with costs in all courts.