Strakosch v. Strakosch

City of New York Municipal Court

Strakosch v. Strakosch

11 N.Y.S. 251, 32 N.Y. St. Rep. 238, 1890 N.Y. Misc. LEXIS 692

DecidedJune 24, 1890

StatusPublished

This text of 11 N.Y.S. 251 (Strakosch v. Strakosch) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Strakosch v. Strakosch, 11 N.Y.S. 251, 32 N.Y. St. Rep. 238, 1890 N.Y. Misc. LEXIS 692 (N.Y. Super. Ct. 1890).

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Opinion

McAdam, C. J.

The determination of the action depends upon the interpretation of the phrase “until the close of the season,” which the language of the contract declares “ will not last longer than the middle of May, ” and which implies that it might not last so long. The terms used in the con- • tract, together with the evidence in respect thereto, show that the time when the season was to close was uncertain, and left it to be determined by future events, such as financial success or failure, illness or other circumstances af[252]*252feeting the continuance of the enterprise. Some one had to determine when the exigencies of the situation required a limit to be put to the performances, and this person, in the nature of things, was the defendant, the proprietor and responsible leader of the troupe. The defendant drew the season to a close January 26, 1889, owing to the illness of Miss Kellogg, the chief attraction of the venture, and all the attaeMs were paid to that date, and were furnished with transportation to their respective homes. In the subcontracts with performers, filled in by the plaintiff, are these words: “In case of the serious or prolonged illness of Clara Louise Kellogg, the leading soprano, this contract shall be terminated and canceled,” a circumstance proving that the company was likely to disband on the possible occurrence of the event specified. The event occurred, and the illness of Miss Kellogg was of a serious and prolonged nature. The different employes accepted the situation, took their pay for services actually rendered, and receipted in full. The plaintiff was active in bringing about this result, and his conduct confirms the theory contended for by the defendant that the season was effectually brought to an end at that time. This brings the contract as near to the actual meaning of the parties as the words they saw .fit to employ, properly -construed, and the rules of law, will permit. It gives effect to their evident intention, conforms to the situation of the parties and the subject-matter of the contract, accords with their acts which may be called to aid in the interpretation of their writings, and dovetails in with the subcontracts, ail of which went to make up the operatic combination of which the plaintiff formed part. It follows that the plaintiff, having been paid till January 26, 1889, when the season was properly brought to a close, cannot recover, on any fiction of law, damages for not being permitted to perform services thereafter, and that there must be judgment for the defendant.

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McAdam, C. J.

The determination of the action depends upon the interpretation of the phrase “until the close of the season,” which the language of the contract declares “ will not last longer than the middle of May, ” and which implies that it might not last so long. The terms used in the con- • tract, together with the evidence in respect thereto, show that the time when the season was to close was uncertain, and left it to be determined by future events, such as financial success or failure, illness or other circumstances af[252]*252feeting the continuance of the enterprise. Some one had to determine when the exigencies of the situation required a limit to be put to the performances, and this person, in the nature of things, was the defendant, the proprietor and responsible leader of the troupe. The defendant drew the season to a close January 26, 1889, owing to the illness of Miss Kellogg, the chief attraction of the venture, and all the attaeMs were paid to that date, and were furnished with transportation to their respective homes. In the subcontracts with performers, filled in by the plaintiff, are these words: “In case of the serious or prolonged illness of Clara Louise Kellogg, the leading soprano, this contract shall be terminated and canceled,” a circumstance proving that the company was likely to disband on the possible occurrence of the event specified. The event occurred, and the illness of Miss Kellogg was of a serious and prolonged nature. The different employes accepted the situation, took their pay for services actually rendered, and receipted in full. The plaintiff was active in bringing about this result, and his conduct confirms the theory contended for by the defendant that the season was effectually brought to an end at that time. This brings the contract as near to the actual meaning of the parties as the words they saw .fit to employ, properly -construed, and the rules of law, will permit. It gives effect to their evident intention, conforms to the situation of the parties and the subject-matter of the contract, accords with their acts which may be called to aid in the interpretation of their writings, and dovetails in with the subcontracts, ail of which went to make up the operatic combination of which the plaintiff formed part. It follows that the plaintiff, having been paid till January 26, 1889, when the season was properly brought to a close, cannot recover, on any fiction of law, damages for not being permitted to perform services thereafter, and that there must be judgment for the defendant.

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Bluebook (online)

11 N.Y.S. 251, 32 N.Y. St. Rep. 238, 1890 N.Y. Misc. LEXIS 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/strakosch-v-strakosch-nynyccityct-1890.