Fisher v. Monroe

1 Misc. 14, 20 N.Y.S. 664, 48 N.Y. St. Rep. 510

• Court: City of New York Municipal Court
• Decided: October 15, 1892
• Status: Published

Opinion

McCarthy, J.

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 and 1889. The plaintiff began her duties under this contract at the opening" of the season, September, 1888, and continued to perform her duties as an actress until after the performance of Saturday evening, November 1,1888, when, immediately after that Saturday evening’s 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, hut 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 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, “ * * * or 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 week’s notice to do so.” This condition limits the power to discharge and is controlling in this case. Here it appears that the grounds 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 week’s 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 on the trial. In this view of the case, 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 Van Wyck, J., concur.

Judgment affirmed.