Outstanding Artists, Inc. v. Kenny

258 A.D. 973, 16 N.Y.S.2d 948, 1940 N.Y. App. Div. LEXIS 8496

Opinion

Action on contract. The appeal is from a judgment in favor of plaintiff, entered on a jury verdict. Judgment unanimously affirmed, with costs. The trial judge submitted the case to the jury on alternative issues, (a) whether appellant was the undisclosed principal in a contract made with plaintiff for a theatrical performance, or (b) whether appellant adopted and took over the contract after it was made. The verdict for plaintiff is overwhelmingly supported by the evidence on both theories, and a verdict for appellant could not have been permitted to stand. While the charge of the court may be subject to criticism, the error, if any, was harmless and must be disregarded, since appellant could not have prevailed in any event. (Von Au v. Magenheimer, 126 App. Div. ; affd., 196 N. Y. 510; Gotham Constr. Corp. v. City of New York, 233 App. Div. 699, 700; Civ. Prac. Act, § 106.) The appellant’s own testimony was most damaging. Present — Lazansky, P. J., Carswell, Johnston, Taylor and Close, JJ.