Dockstader v. Reed

121 A.D. 846, 106 N.Y.S. 795, 1907 N.Y. App. Div. LEXIS 1915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1907
• Status: Published

Opinion

Houghton, J.:

The plaintiff is the proprietor of a minstrel troupe and on the 19th day of March, 1907j the defendant contracted by written agreement ,with him at a stipulated salary per week, to sing and play until the end of the season of 1909.'

The defendant entered upon his employment and continued until September, 1907, when he abandoned his contract, claiming that his health was such that he could not continue singing and traveling about the country and parading the streets in inclement weather. The record contains an affidavit by his physician that to continue in such work and to expose himself to varying climate throughout the .country would greatly endanger defen dan t’.s health, which is not robust.

The part to which defendant was cast in plaintiff’s troupe was a bass singer in a quartet, rendering several songs during the performance.

The court granted an injunction during the pendency of the action, restraining the defendant from rendering any services to any other person than the plaintiff or giving any theatrical performance in public as an actor.

The contract which the defendant signed is the usual unique one which theatrical managers often demand from actors whom they emplojr, and in it the defendant confessed that the services which he was to render were “ special, unique and extraordinary,” and admitted that.he could not be replacedand agreed that in the event of its breach the plaintiff would suffer irreparable injury which could not be ascertained or estimated in an action at law, and consented that an injunction might be issued against him restraining him from rendering services for any other person.

This confession and defendant’s own estimate of himself is the.. only proof in the case that his services were unique, and that he ' could not be replaced. , '

The contract gave the plaintiff'the right to discharge the defendant without recourse, if. Ins services were, unsatisfactory, and also ■the absolute right of discharge .without cause, upon two weeks’ notice, and it is quite improbable that a bass singer in a minstrel' quartet cannot be found to take defendant’s place. '

Notwithstanding the agreement of the defendant, we think the " facts did not warrant the granting of an injunction. Parties to an agreement cannot contract that courts will. exercise, their functions against or in favor of themselves. Whether- or not. a court will, so exercise its powers is-for the court itself to- determine.

While equity will often restrain an actor - under contract to perform for one and not to perform for another, from performing for another during the period of the contract, an application’for equi-' table relief, is addressed to thq sound discretion of the court, and will not be granted where the party seeking relief is not specifically bound by the contract, so that the obligations are reciprocal and enforcible. (Lawrence v. Dixey, 119 App. Div. 295; 104 N. Y. Supp. 516.) "Whether equity will intervene to restrain by injunction the violation of a restrictive covenant in relation to personal services, depends in. large measure Upon whether a substitute for-the employee-can. readily be-obtained, arid whether .such substitute will substantially answer the purpose of 'the contract. (Strobridge Lithographing Co. v. Crane, 12 N. Y. Supp. 898.) In Shubert v. Angeles (80 App. Div. 625) an- in junction was granted against an actress appearing for a rival house in violation of her contract, but it there appeared that she was engaged by the plaintiffs because of her special talent as a mimic of other actresses and' actors, and that her part could not be taken by another.

The salary agreed to be paid defendant was quite moderate, and, indicates -that his part was quite ordinary,-and, manifestly could be easily filled. It is undisputed that.he was ill arid that a, continuance under the contract with plaintiff would endanger his health and be likely to destroy his voice altogether:

The court below felt constrained to grant'tfie injunction because of the peculiar provision of the agreement. We are of opinion,. however, upon all the facts disclosed, that the plaintiff was not entitled to an injunction during the pendency of the action, and that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.'

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ., concurred. ' ■

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.