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De Gellert v. Poole

2 N.Y.S. 651 Court N.Y. City Ct. Decision date 1888-11-23 English

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p. 651
De Gellert v. Poole et al.
(City Court of New York, General Term.
November 23, 1888.)

Headnote

1. Contracts—Continuance—Notice of Termination—Custom of Theater.
Defendants engaged plaintiff’s services as star of the ballet, to continue during the run of a certain play, unless terminated by two weeks? notice,—the manner of giving which was not provided for,—and to be performed throughout the country. After closing at New York, the company, including plaintiff, went on a tour, under a contract between defendants and a third person, of which plaintiff did not know, and she received her salary for a month afterwards. Held, that notice posted on the door of the green-room of the theater in New York, according to an alleged custom of defendants, and not brought to plaintiff’s attention, was insufficient to terminate the contract,' and defendants remained liable for her salary.
2. Evidence—Secondary—Failure to Produce Telegram.
On a party’s failure to comply with a notice to produce a telegram testified to have been sent to him, secondary evidence of its contents is admissible.
Appeal from trial term.
In this action by Theodora de Gellert against John F. Poole and others, on a contract for plaintiff’s services as star of the ballet, plaintiff had a verdict and judgment, and defendants appeal.
Argued before McAdam, C. J., and McGown and Pitshke, JJ.
A. J. Dittenhoefer, for appellants. Jeroleman & Arrowsmith, for respondent.

The defendants, who are theatrical managers, by contract dated May 5, 1884, employed the plaintiff as an artist, in the character of the star of the ballet, during the run of the “Seven Havens.” Services under the contract were to commence August 18,1884, and were to be continued during the run of the play, unless sooner terminated by the notice hereinafter mentioned. The salary was to be $125 per week, when the services were rendered in the city of New York, and $150 when rendered outside of the city, together-with railroad fares and transportation of her baggage. The action is for services from December 8,1884, till January 17,1885, aggregating $900, less $134 paid on account thereof, leaving $766 due; and for this amount the jury awarded the plaintiff a verdict. The defendants claimed that the season terminated at Niblo’s Garden, November 8,1884, and that they have not since produced the play, and are not responsible to the plaintiff for services rendered after that time. The contract required the plaintiff to perform services, not only at Niblo’s Garden, New York, but at such theaters, opera houses, and halls throughout the United States and Canada as might be required. After closing at Niblo’s, on the 8th of November, 1884, the defendants’ company, with' their scenery and wardrobe, went on the road, November 16, 1884, and the-plaintiff remained with the company until January 17, 1885, having received her pay in full till December 8,1884, a month after the play closed at Niblo’s,-

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.■and $134 on account of her salary thereafter. The company was put upon the road, under a contract made by the defendants with one Mendum; but the plaintiff had no knowledge of this contract, fpr she telegraphed on to the .defendants for her salary, and demanded from them the balance due her upon her return. She testified that she asked Mr. Gilmore if he or Mr. Poole were jjoing on the road with the play, and that Gilmore said he never went on the road, but sent a responsible-manager with the company. The contract provides that two weeks’ notice shall .be given of the opening and closing of the season. The provision is in these words: “It is further argeed between the parties hereto that said parties of the first part shall have the lawful right to determine when the season mentioned herein shall begin and terminate, and, in order to begin or close said season, said parties of the first part shall give two weeks’ notice in advance of such commencement or termination, and should the said parties of the first part give such two weeks’ notice, to the said party .of the second part, of the termination of said season, then such notice, after ¡the expiration of said two weeks, shall have the effect of dissolving said agreement, and freeing the parties hereto from the obligations contained herein.” 'The question to be determined is whether, under this provision, the notice required to terminate the plaintiff’s engagement should have been brought home *o her, or whether posting it on the door of the green-room, according to what rthe defendants call their custom, was sufficient, without being called to the plaintiff’s attention. We think the notice should have been brought home to her, in some form. She swears that she never saw the notice posted up, and never heard of it. The sufficiency of notice, whenever it is required, must, fin the nature of things, depend much upon the circumstances of each case. Where personal notice is difficult or impossible, the law is sometimes satisfied ,if the next best mode of communicating it is adopted; for as was said by the court of appeals in Vatable v. Railroad Co., 96 N. Y. 62 : “ Where a contract requires a notice to be given, without expressing what kind of notice, then the provision as to notice must be construed like any other provision of the contract, so as to effectuate the intention of the parties. ” The contract is .silent as to the mode of communicating notice, and it is not going too far to hold that the parties contemplated a personal notice, such as is usually given by an employer on discharging an employe. In Wachtel v. Noah Widows, 60 How. Pr. 424 , the .court of appeals hold that, in the absence of any agreement for a different mode of service, it should be made personally, as required by common law, when the object is to deprive a party of his rights or property. The notice required in the present case was intended to terminate the .plaintiff’s rights under her contract, and should have been given in a form ,-that brought the facts to her attention. We think the word “notice” was mot used in a special or limited sense, and that the parties intended that their •contract in respect thereto should be interpreted by the legal force of the language used, rather than by custom. The answer alleges that notice was duly .and regularly given, which inferentially means personal notice. Custom is not pleaded, nor are the regulations, of the defendants’ theater pleaded, nor is .any excuse for not giving personal notice stated, notifying a lady of confessed talent that she is discharged, by posting the fact in the green-room, would hardly be an agreeable form of notification to an artist of ordinary feelings, nor do we believe that the plaintiff ever contemplated that such a form •of notice should be given to her under the contract. It would be unreasonable to expect every chorister or member of the ballet to be daily scanning the walls of the green-room for notices of their discharge, when the more agreeable and easy method; of personal communication was at .all times present. The plaintiff was a member of the defendants’ company, under their constant ¡command and direction, and personal notice was so easy of communication ' .that we are satisfied that both parties contemplated it. Under our construction of the contract, the notice, not having been brought home to the plain
p. 653
tiff, was insufficient to effect her discharge from employment under the contract; hence there is no error in the charge of the trial judge of which the defendants can legally complain. True, the plaintiff knew that the season at. Niblo’s closed November 8, 1884; but, when the defendants’ company went on the road, she had the right to assume that under her contract she was-obliged to follow it, in the absence of the two weeks’ notice to the contrary. Even if the plaintiff had seen the notice the defendants claim to have posted up, she might well have entertained and acted on this belief. If the defendants had intended to substitute Mendum as the plaintiff’s future pay-master, she ought to have been informed of the fact. We emphasize this feature of the case. We have examined all the exceptions taken, and they are without merit.

The telegram testified about at folios 27 to 29 was sent to the defendants "r it was presumably in their possession; and they ought to have produced it under the notice requiring its production; and, not having produced it, secondary evidence of its contents was properly received. Upon the entire case-we think the judgment ought to be affirmed, with costs.

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