129 Misc. 370 | N.Y. Sup. Ct. | 1927
The complaint alleges that plaintiff and defendant entered into a contract whereby plaintiff “ duly advanced and loaned ” to defendant between particular dates the sum of $36,500; that plaintiff retained from defendant’s share of the net profits of the business referred to in the agreement the sum of $14,228.45, leaving a balance of $21,271.55 unpaid, which sum plaintiff seeks to recover. The contract, made a part of the complaint, is an agreement between a producer and a distributor providing for the
The case of Bartsch v. Woods (86 Misc. 58) is similar to the case at bar. In that case a contract between a theatrical manager and the proprietor of a play provided that the manager should pay $1,000 on signing the contract “ as an advance upon royalties ” to “ belong absolutely to the proprietor whether the royalties under this agreement reach said sum or not * * It further provided that if the play were not produced before the date specified the manager would pay a further sum of $1,000 “ as advance royalties ” and the date of the production would be extended. Mr. Justice Bijur writing for the court construing the agreement said: “ The requirement that the second $1,000 be paid is absolute. The fact that it is denominated ‘ advance royalties ’ indicates to my mind merely that this sum, as well as the first payment of $1,000, was to be deducted from the royalties when earned, but that proviso in nowise militated against the absoluteness of the promise of the manager to pay. In this respect I think the agreement signed is on all fours with that common form of agreement in cases involving the employment of an agent or salesman, to whom it is frequently provided that there shall be ‘ advanced ’ a weekly sum for a definite period, the sum to be deducted from the commissions earned. The employer must pay the ‘ advance ’ leaving repayment to the contingency of the earning of commissions.” (Citing Schlesinger v. Burland, 42 Misc. 206; Lobsitz v. Leffler, Thiele & Co., 140 App. Div. 14.)
It is clear that the reasoning applied to the Bartsch case is equally cogent in the present case. The advancements were absolute, repayment thereof was conditioned upon defendant’s share of the proceeds being sufficient to reimburse the plaintiff. They were in no wise “ loans.”
Under the contract I conclude that the complaint does not state facts sufficient to constitute the first cause of action. Motion to dismiss the first cause of action granted. Settle order.