Fisher v. Monroe — 48 N.Y. St. Rep. 510

Majority

p. 510

Jennie Fisher, Resp’t, v. Robert B. Monroe et al., App’lts.

(City Court of New York, General Term,

Filed October 24, 1892.)

Headnote

Contract—Theatrical—Discharge.

Plaintiff was 'employed by defendants for a theatrical season under a contract which provided that if she was guilty of any violation of the rules the manager could annul the contract by giving a weeks notice. A rule of the company required every member to attend rehearsals when called. Plaintiff refused and neglected to attend a rehearsal, and was discharged the same day. Held, that defendants were bound by the terms of the contract; that the ground of discharge being a violation of the rules, the contract could not be terminated without the weeks notice, and that the discharge was in that respect wrongful and entitled plaintiff to damages.

Appeal from judgment in favor of plaintiff, entered upon verdict.

W. H. Phillips, for app’lts; S. Miller, for resp’t.

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff.

The action was for damages caused'the plaintiff, an actress, by-reason of her discharge by the defendants, who were theatrical managers and proprietors, and until the end of the season specified in the contract between them.

The written contract declared that the plaintiff was engaged for a season of thirty weeks or longer during the years 1888-9.

The plaintiff began her duties under this contract at the opening of the season, September, 1888, and continued to perform her duties as a.n actress until after the performance of Saturday evening, November 1, 1888, when, immediately after that Saturday evening performance, one of the defendants discharged her, and refused to permit her to perform any longer under said contract.

The plaintiff was paid up to the time of her discharge, but the defendants have neglected and refused to pay her any further sum.

The plaintiff made diligent endeavor to find other employment during the balance of that season, but was able to procure an engagement but for a week, and for that she received the sum of thirty-five dollars ($35).

The season mentioned in the contract did not close until May 11, 1889. So the jury awarded the plaintiff the sum of thirty-five dollars ($35) a week for the remaining twenty weeks, less the sum of thirty-five dollars ($35) that she had earned in the meantime, thereby making the amount of their award five hundred and sixty-five dollars ($565).

It was testified by the defendant that the cause of the plaintiff’s immediate discharge by the defendants was her failure and refusal to be present .at a rehearsal, and it was also admitted that there was an absolute rule of the company that everybody should attend

p. 511

rehearsals when called, and that the plaintiff was aware of such rule.

The plaintiff was notified on a Friday to attend for rehearsal on the following day at 10.30 A, m. She failed to attend at the time named, but did later on the same day, and was that night discharged.

The defendant is bound by the terms of his own contract It reads: “ * * * guilty of any violation of the rules made by the party of the first part, then said manager may annul this contract by giving a weeks notice to do so.”

This condition limits the power to discharge, and is controlling in this case.

Here it appears that the ground of the discharge is the violation of a rule of his company. This being so, he cannot terminate the relations between him and the plaintiff unless by giving such a weeks notice to do so. The discharge was immediate and without notice. Until such notice was given, and the week had expired, he could not discharge her. Without the proper notice she became entitled to damages awarded in such cases.

The situation appears to have been overlooked in the trial.

In this view of the casa it becomes immaterial whether there was sufficient cause or not for the plaintiff’s discharge.

But if there was any doubt, then under the case presented it was a question of fact and was fairly submitted to the jury by the learned justice at the trial.

The fact that the plaintiff had received and receipted for the salary due her up to the time of her discharge does not relieve the defendants from their liability.

The rulings of the justice were proper and we find no error.

Judgment should be affirmed, with costs.

Ehrlich, Ch. J., and Vah Wyck, J., concur.