Day v. Klaw

112 N.Y.S. 1072

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 24, 1908
• Status: Published

Opinions

MacLEAN, J.

"This agreement made between Klaw & Erlanger party of the first part and George W. Day parties of the second part [reciting the instrument signed by the parties herein] witnesseth: The said parties of the second part hereby agreé to render their services to the party of the first part at the Klaw & Erlanger Theatre for a term of twenty-five consecutive weeks * * * for the sum of one hundred and fifty (150) dollars per week.” All of five further stipulations state agreements or concessions by the plaintiff-the party of the second part. Therefrom it is claimed in this action for compensation for 2 weeks of the 25 in which 2 weeks the plaintiff did not actually play that “the entire document discloses no obligation on the part of the defendants.” Literally as printed it looked something that way. But the parties interpolated a clause over their signature and put their own interpretation on their engagements. The clause interpolated was:

“It is understood that during this engagement the cost of any railroad fare from one town to another shall not exceed the sum of five dollars for each person. It is also understood that if the party of the second part plays west of Chicago during this engagement, the fares from Chicago and back to Chicago are to be paid by the party of the first part.”

Construing their relations according to their understanding, and not after the agreement drawn for them by a vaudeville agent, the plaintiff, a play actor, never opened at the Klaw & Erlanger Theatre and his employers never asked him to. They assumed to direct him and to utilize his services elsewhere, beginning at Brooklyn, and thence across and around the country, in all which the plaintiff acquiesced,' playing a week at a time in cities from Boston to El Paso and Denver for 35 weeks, excepting one week between two cities in Massachusetts, and another week between appearances in Texas and Colorado. These are the two weeks for which the defendants did not pay, and to avoid paying for which they are in litigation. Although he did not actually play in these weeks, there is no question but that the actor was under the orders of the managers. It came out incidentally that their itinerary, as ordered, requiring an engagement at Denver to follow one at El Paso laid out the opening for one week, commonly beginning on Sunday or Monday. Just why the week was laid out in Massachusetts does not appear, but, as the plaintiff was under defendants’ control, the presumption arises that his recess was at their instance. The judgment should be affirmed, with costs.

Judgment affirmed, with costs to the respondent.

GILDERSLEEVE, P. J., concurs.