Carter v. Ferguson — 36 N.Y. St. Rep. 1

Majority

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Louise Dudley Carter, App’lt, v. William J. Ferguson, Resp’t.

(Supreme Court, General Term, First Department,

Filed December 31, 1890.)

Headnote

1. Injunction—Breach op contract.

To warrant the granting of a preliminary injunction to restrain the violation of a contract it should be made to appear that the plaintiff has no adequate remedy at law.

2. Same—Actors.

While an injunction may be granted to prevent actors from performing for other parties when they have undertaken to play only for the plaintiff, the exercise of jurisdiction to grant the same should be limited to cases where the artistic abilities of the defendant are exceptional so that his place cannot be readily supplied.

Appeal from order denying motion for a preliminary injunction to restrain the defendant from breaking a contract binding him to perform as an actor exclusively for the plaintiff.

Abe H. Hummel, for app’lt; A. J. Dittenhoefer, for resp’t.

In order to warrant the granting of a preliminary injunction to restrain the violation of a contract, made to appear that the plaintiff has no adequate remedy at law. The inadequacy of the legal remedy is the test as to whether the defendant should or should not be restrained in the class of cases to which the present suit belongs. The English courts and our own have frequently granted injunctions, pendente lite, to prevent ■actors from performing for other parties when they have undertaken to play only for the plaintiff; but the exercise of this jurisdiction has usually been confined, and ought in our judgment always to be limited, to cases where the artistic abilities of the defendant are exceptional, so that his place cannot readily be supplied ; for it would seem to be only under such circumstances that irreparable damage can be occasioned to the plaintiff.

As is well said by Mr, Pomeroy: “Where a contract stipulates for special, unique or extraordinary personal services or acts, or for such services or acts to be rendered or done by a party having special, unique or extraordinary qualifications, as for example, by ■an eminent actor, singer, artist and the like, it is plain that the remedy at law of damages for its breach might be wholly inadequate, since no amount of money recovered by the plaintiff might

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enable Mm to obtam the same or the same kmd of services or acts elsewhere, or by employing any other person.” 3 Pomeroy’s. Equity Jurisprudence, § 1343. The general term of the third department, commenting upon . this passage, points out that tl^e jurisdiction to interfere by injunction approved therein is confined to cases of special, unique and extraordinary qualifications on the part of the defendant, and Learned, P. J., remarks: “It can readily be seen that the court might restrain by injunction a great, actor from playing at another theatre in violation of his contract, while it would not restrain? a salesman from quitting his employer before his contract had expired, even though under the contract he were to be paid a percentage on sales.” Bronk v. Riley, 50 Hun, 489 ; 20 N. Y. State Rep., 401.

How it is in no wise derogatory to the defendant in this case to* say that he is not shown to be actor of special, unique or extraordinary qualifications. His own counsel on this appeal expressly asserts that the defendant is not a star or attraction, of the company, or even a prominent member thereof.

However capable an actor the defendant may be, he has not yet achieved distinction. He does not seem to have been engaged to perform the part of what is known as the leading man in the plaintiff’s company, his name appearing only third in the published list of the performers who were to act with Mrs. Carter. The affidavits do not satisfy us that his failure to keep his contract with her, or his appearance in violation of that contract at another theatre, has done or will do her any irreparable injury, or any damage incapable of being ascertained in an action at law. For these reasons, without considering the others urged by counsel, or referred to by the court below, we think the application for an injunction was properly denied.

The order appealed from must be 'affirmed, with ten dollars costs and disbursements.

Yak Brunt, P. J., and Barrett, J., concur.