Mayer v. Fuller

17 Misc. 611 | N.Y. App. Term. | 1896

MoAdam, J.

The action was to recover $60, being 10 per cent, commission on twu weeks’ salary which the ■ defendant received from Roster & Bial'for professional services rendered under á contract claimed to have been procured by the plaintiff. The claim is founded upon an agreement in the form of a letter, in and by which the plaintiff, a theatrical manager, thereby appointed agent for the defendant, was to receive “ 10 per cent, of all sums realized for making engagements for Miss Fuller, the said 10 per cent, to be paid weekly.”

. On December 18, 1895, the plaintiff procured a contract to be "made between the defendant and the managers of the Casino Theatre, -this city, by which the defendant was to rececive $300 per week in an engagement commencing February -3, 1896, and continuing during March, April and May, 1896.

Before the time for commencing at the .Casino the defendant’s husband called on the plaintiff and informed him that his sister, Loie Fuller,‘had contracted to appear at Koster & Bial’s, and it was deemed proper that defendant’s engagement at the Casino be deferred, so that both actresses should not appear in the same city at the same time, negotiations were thereupon begun, which resulted in a release' of the defendant from her engagement at the Casino for a period of eight weeks, so as to allow her to appear at Koster & Bial’s following the Loie Fuller engagement. The plaintiff was instrumental in bringing about this arrangement, and it was agreed that'he should receive his commission thereon in the same manner as if the defendant had performed at the Casino.

On March 9, 1896, Canary & Lederer, of the Casino, pursuant to the arrangement, wrote to Mr. McConnell, business manager of Koster & Bial’s, as follows: “We will give Miss Fuller permission to appear at Koster & Bial’s Music Hall, her engagement •to follow that of Miss Loie Fuller. * * * Marcus Mayer’s commission to be protected by K. & B.” On March 11, 1896, Mr. McConnell wrote to Canary & Lederer as follows: . “'Your letter received, regarding the engagement of Ida Fuller to play a season of eight weeks at Koster & Bial’s. Mr. Bial accepts the conditions you name, and that Marcus Mayer’s commission is to be deducted.”

The defendant assented to the conditions stated, one of which was that the plaintiff’s commissions should be .paid on the Koster. & Bial.. engagement. The transaction, therefore, resolves itself into this: The plaintiff, procured-a contract for the defendant at the Casino for four months at $300 per week, and thereafter induced the management of the Casino to allow the defendant to perform at Koster & Bial’s for eight weeks of the term, upon condition that the plaintiff’s right to commission should attach to the engagement at Koster & Bial’s under the contract with them. In short* it was a mere substitution of theatres and employers, the terms and conditions being substantially the same.

• The. defendant attacks the validity' of the contract under which the plaintiff was appointed agent at 10 per cent commission, upon the ground that in so far as it gives a right to commissions upon engagements not secured by the plaintiff it is void. Hamlin v. Wheelock, 42 Hun, 530. If the plaintiff should at any time place that interpretation upon the contract, and seek to recover commissions on engagements not procured by him, the objection presented by the defendant will require consideration. The claim in suit is based upon an actual engagement of the defendant at the Casino secured by the plaintiff, and a transfer of eight weeks of the time to Hosier & Bial’s brought about by the efforts of the plaintiff, upon the express agreement that his right to commission under the engagement should be as effectual after the transfer as before.

The justice properly found for the plaintiff, and the judgment must be affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.