135 N.Y.S. 574 | N.Y. App. Term. | 1912
The plaintiff sues for services which he claims he rendered to the defendants as their manager under a contract calling for a compensation of five per cent, of any salary received by the defendants for the performance of a vaudeville sketch. The contract is in writing and purports to employ the plaintiff as a. manager. The defendants, however, claim that the plaintiff was merely a booking or employment agent; that the services which the .plaintiff rendered or was expected to render were services as a booking agent, and that the contract employing the plaintiff as their agent was a subterfuge for the purpose of avoiding the provision of chapter 700 of the Laws of 1910 requiring all theatrical employ: ment agencies to be licensed and to be conducted subject to certain restrictions. Defendants offered evidence sufficient to raise a question of fact upon the issue tendered, but the trial justice directed a verdict apparently holding that the statute merely imposed a penalty for doing business except as therein provided but did not render contracts made by an employment agent acting without a license unenforcible against the party dealing with him when fully performed on his part. The trial justice relied upon the case of Cody v. Dempsey, 86 App. Div. 335, but I do not think that case is any authority for this proposition. In that case the legislature had inserted into the Penal 'Code a provision making it a misdemeanor to offer real estate for sale without being duly authorized in writing, and it was held that the legislature merely imposed a penalty upon a broker acting without written authority, but did not prohibit the agent from obtaining the benefit of any contract of sale negotiated by him.
Judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.
S'Eabury and Page, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.