Hyperlawhypertext legal database Realty Advertising & Supply Co. v. Englebert Tyre Co. 89 Misc. 371

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Realty Advertising & Supply Co. v. Englebert Tyre Co.

89 Misc. 371 Court N.Y. App. Term English

Delivered by Shearn, J.

Contents

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p. 371
Realty Advertising and Supply Company, Respondent, v. Englebert Tyre Company, Appellant.
(Supreme Court, Appellate Term, First Department,
March, 1915.)

Headnote

Contracts — provisions — when not void because of reservation of right to cancel.
A contract is not void because the reservation of the right to cancel it may deprive the party for whose benefit the reservation is made of relief by way of specific performance.
A provision in an executory contract for advertising giving one of the parties the right to cancel the agreement at any time prior to its expiration upon giving to the other party at least five days’ notice does not deprive the contract of the element of mutuality.
Appeal by the defendant from á judgment of the Municipal Court of the city of New'York, borough of Manhattan, ninth district, rendered in favor ■ of the plaintiff.
Clarence B. Campbell, of counsel, for appellant.
Bond & Babson (Walter H. Bond, of counsel), for respondent.

This action was brought upon an executory contract for advertising. The contract provided 1 ‘ The party of the first part [plaintiff] shall have the

p. 372
right to cancel this agreement at any time prior to its expiration upon giving to the party of the second part at least,five days’ notice.” Defendant refused to furnish any advertising, and when sued claimed that the contract was unilateral, void and unenforcible for lack of mutuality because of this cancellation provision.

The mere fact that one party reserved the right to terminate a contract upon notice does not deprive the contract of the element of mutuality. McCall Co. v. Wright, 133 App. Div. 62 ; affd., 198 N. Y. 143 . The cases in equity involving cancellation clauses in baseball players ’ and actors’ contracts are not in point. In equity there is a distinction between a mutuality in the obligation of contracts and mutuality of remedy under them. While the reservation of the right to cancel á contract may deprive the party for whose benefit it is made of relief in equity in the nature of specific performance, it does not render the contract void. .This is a mere action at law upon a valid contract. The judgment should be affirmed with costs.

Guy and Pendleton, JJ., concur.

Judgment affirmed, with costs.

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