14 N.Y.S. 134 | The Superior Court of the City of New York and Buffalo | 1891
This action is brought by the plaintiff, a theatrical and operatic manager, to restrain the defendant from appearing as a singer or actress upon the stage of the Casino, in the city of New York, during the period of her contract with the plaintiff. A preliminary injunction having been granted, and it appearing, upon the hearing of the motion for the continuance of the injunction during the pendency of the action, that the defendant had made a contract in writing with the manager of the Casino, and had been extensively advertised to appear at that theater within a few days thereafter, it was arranged between the parties, but without prejudice to the rights of either, that the defendant, upon giving an undertaking in the sum of $2,000, conditioned to pay that sum as liquidated damages in case it shoujd be finally determined that the plaintiff is entitled to an injunction herein, might go on and fulfill her contract at the Casino. The undertaking having been given as agreed, and the rights of both parties having been expressly preserved, the fact that plaintiff’s contract with defendant has since that time expired is not to be considered, and the case still calls upon the court to determine plaintiff’s original right to injunctive relief. The material facts, as they appear from the pleadings and the evidence, are that by written contract the defendant agreed with the plaintiff to appear in the
The facts, so far referred to, contain all the elements necessary to sustain, within the rule laid down in Daly v. Smith, 38 N. Y. Super. Ct. 158, and followed in several cases since that time, an injunction against defendant’s appearance at the Casino. It therefore remains to be seen whether there is anything else in the case which calls for a different conclusion. The defendant’s counsel insists that, inasmuch as there is no negative stipulation in the contract by which the defendant agreed not to appear elsewhere, the court cannot interfere. But, as was shown in Daly v. Smith, supra, the court is bound to look to the.substance, and not to the form, of the contract. As the defendant had agreed to appear in seven performances in each week (exclusive of Sundays) which the plaintiff’s company might give in Hew York, it was not possible for her to perform elsewhere in Hew York without a violation of her contract with the plaintiff, and a negative clause was unnecessary to secure to the plaintiff exclusively the services of the defendant.
It is also insisted that the contract is inequitable in its terms, because it provides that two weeks’ notice of the termination of the season might be given by the plaintiff. It did not enable the plaintiff to discharge the defendant on two weeks’ notice, but a notice of two weeks of the terminación of the season was to be given. So long as the company remained together and performances were given, the plaintiff was bound to pay to the defendant,the $300 per week, provided the defendant fulfilled her part of the contract. By the pleadings it stands admitted that the season of 1888-89 was to close about June 1, 1889, and in point of fact the plaintiff by letter notified the defendant that the said season would terminate not before the middle of May or June 1, 1889. The point is therefore untenable.
And finally it is insisted that the defendant was justified in breaking her contract with the plaintiff because the plaintiff had refused to substitute a