Tischkowsky v. Fischer — 159 N.Y.S. 1145

Majority

p. 1145

William Dorian TISCHKOWSKY, Plaintiff-Respondent, v. Clifford C. FISCHER, Defendant-Appellant.

(Supreme Court, Appellate Term, First Department.

June 26, 1916.)

Headnote

Appeal from Municipal Court, Borough of Manhattan, First District. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

The plaintiff testified in substance that a paroi agreement was made between defendant and himself whereunder the defendant engaged the plaintiff at $100 a week ns a performer, and that plaintiff was to pay the defendant, out of that $100 a week, $25. Immediately thereafter the parties signed a written agreement, under which the plaintiff appointed the defendant his manager to secure him employment as an artist, and plaintiff agreed to pay the defendant $25 a week for each week during which plaintiff might be engaged to perform at the rate of $100 per week. It is immaterial whether we regard the alleged paroi agreement testified to by plaintiff as merely a negotiation which became merged into the written agreement, or whether the written agreement be given its appropriate weight as totally disproving the extraordinary and incredible contention of the plaintiff as to the character of the contract entered into between the parties. In either event, the judgment-must be reversed, with $30 costs, and, as it is

p. 1146

perfectly clear that plaintiff has developed all the facts bearing, upon the controversy, the complaint will be dismissed, with appropriate costs in the court below. All concur.