Hoyt v. Fuller

47 N.Y. St. Rep. 504

• Court: The Superior Court of New York City
• Decided: June 16, 1892
• Status: Published

Opinion

McAdam, J.

—The defendant was to render artistic services for the plaintiffs during “the run ” which still continues at plaintiff’s theatre, and on the termination of “ the run ” the defendant was to “ go on the road ” and “ for a run in Boston ” not exceeding August 1, 1892. These are dramatic terms, but well understood. True, the option of terminating the contract is left with the plaintiffs, but the defendant cannot complain of that after obtaining employment on the strength of that special condition. The plaintiffs do not seek to terminate the contract, but to enforce all of its provisions, which are fair, and consequently not.unconscionable. The contract was intended to give the plaintiffs not the divided, but exclusive, services of the defendant, and where that is apparent a negative clause is unnecessary to secure that result. Daly v. Smith, 38 N. Y. Super. Ct, 158; Duff v. Russell, 39 St. Rep., 266; McCaull v. Braham, 16 Fed. Rep., 42, note. While equity-will not interfere to restrain the violation of such contracts except where the services are special, unique and extraordinary, The S. L. Co. v. Crane, 35 St. Rep., 473, the present is essentially such a case. The defendant is an actress and danseuse, performing what is known as the serpentine dance, which has gained widespread notoriety. She admits that it is unique and original with her.

In a bill filed in the United States circuit court by the defendant to enjoin Minnie Renwood Bemis from attempting to imitate the dance, Miss Fuller lays great stress on the fame, profit and success she has acquired from it, and describes her artistic effort as follows: “ The cause of such success, fame and profit was the originality and extraordinary novel nature of the incidents, scenes and' tableaux of said composition, which consist of a series of fantastic, graceful, unique, harmonious and highly pleasing dances, each of which portrays or represents different characters, all of which appeal to the sense of the beautiful and aesthetic emotions; that the composition is entirely novel and unlike any dramatic incident, scene or tableaux known to have been theretofore represented on any stage, and that she invented and composed the same.”

If this graphic description be correct, it is evident that no one can be procured as a substitute for the defendant She is the original and only artistic serpentine dancer, while her would-be rivals are but poor imitators.

The defendant violated her contract with the plaintiff by appearing at Amberg’s theatre in said dance, and claims the privilege of appearing therein at other places, as her time is not wholly occupied at the plaintiffs’. But this is contrary to the spirit and intent of the contract. The plaintiffs evidently considered the defendant a drawing card, an attractive feature, and evidently employed her with a view of inducing people to come and witness her performance who might not otherwise be influenced to visit their theatre. • If she is permitted to give the same performance elsewhere, it is needless to say that pecuniary injury to the plaintiffs will follow, the exact amount of which is incapable of proof; hence equity will protect them by restraining the wrong. The injunction will be continued until August 1, 1892, unless the plaintiffs sooner elect to terminate the contract, according to the option therein contained. -