32 N.Y.S. 588 | N.Y. Sup. Ct. | 1895
One of the defenses set up by the defendants is that the consideration of the weekly payment to be made or guarantied by the defendants was in part for services to be performed on Sunday, and that the agreement in substance required the service to be so performed; and that, therefore, the contract under which plaintiffs claim is illegal and void. It is not disputed that this result follows provided the agreement is to be construed as requiring the machine to be run on Sunday. It was held by the trial court, as matter of law, that the agreement should not be so construed, and that the contract, so far as this question was concerned, was a legal one. The appellants claim that this ruling was erroneous. The contract is dated June 25, 1893, and that day was Sunday. It is, however, shown that it was in fact executed on Monday, June 26th. The defendants had a pavilion and a saloon or restaurant near Salina Pier, on Onondaga Lake, and it was understood by the parties that the plaintiffs’ machine was to be placed near the defendants’ place of business, and it was so placed. It was run by steam power,—an engine; and there was an organ connected with it. The machine commenced to run, according to the evidence on the part of plaintiffs, on Sunday, the 2d of July, and continued to run every day, including Sundays, up to about the 18th July, when practically it stopped, by reason of the failure of the defendants to furnish coal for the engine. Whether the plaintiffs were without fault, and were ready to perform on their part for the time covered by the claim in this action, were questions litigated at the trial, and found by the jury in favor of the plaintiffs. On the 5th July the defendants paid the plaintiffs $150 for the first week’s payment. The defendants assisted in running the machine to the extent of selling tickets. By the contract, it was, in effect, agreed that for the work of every seven days, constituting a week, from a certain time to a certain time, the plaintiffs should be guarantied and receive a certain com
Judgment and order reversed on the exceptions, and a new trial ordered; costs to abide the event. All concur.