Manny v. Burke , 160 N.Y.S. 879 ( 1916 )

Kellogg, P. J.:

Upon the trial the defendant had judgment upon the pleadings dismissing the complaint. The complaint alleges an agreement between the defendant, who “is well and favorably known as a producer and promoter of vaudeville entertainment,” and the plaintiff, who “possesses unique, unusual and extraordinary ability as a violinist and an actor, and particularly adapted for the protrayal of the character of entertainment that is about to be presented by said Mr. Burke.”

The agreement recited that the parties “ desire to become associated together in the production and presentation of said entertainment to be provided by said Mr. Burke in vaudeville, theatres and other places of amusement,” and provided that the defendant is to produce and finance the entertainment and be the general manager thereof; and provided, among other things, that the plaintiff is “to devote his entire time and his best ability to the portrayal of the leading male role or the rendition of such other services as said Mr. Burke may direct in the entertainment to be provided by said Mr. Burke in vaudeville theatres and other places of amusement as said Mr. Burke may from time to time determine.” The agreement also provided that after the net proceeds of the entertainment repaid the money advanced by the defendant, the parties were to share equally in the profits and losses of the enterprise. Apparently the plaintiff was to receive no other compensation. The agreement was to continue for three full theatrical seasons from September 1, 1913. At the time performance was contemplated the plaintiff demanded that the defendant fulfill and live up to his agreement, which he refused and still refuses to do, and the complaint continues, “the plaintiff was at all times herein mentioned ready and willing to fulfill and has fulfilled and performed his part of said agreement and contract; that by reason of the defendant’s failure to fulfill and live up to his part of said agreement and contract, this plaintiff has been damaged to the sum of” $12,000, for which, with interest, he demands judgment.

That action was brought April 8, 1914. The complaint also alleged that after the signing and delivery of the written agreement, it was agreed between the parties, as a part of the agreement on said day entered into between the parties, that the plaintiff should receive for his compensation under said agreement, the sum of $100 or more per week during the continuance of said agreement. The Special Term dismissed the complaint, apparently upon the ground that the agreement to pay the $100 a week was without consideration, and that the plaintiff could not bring an action for wrongful discharge and breach of contract but must proceed as for a settlement and an accounting of partnership affairs.

There were no partnership affairs to be settled. The parties had made an agreement to form a copartnership to begin September first, but the defendant violated the agreement and, therefore, the copartnership was never in fact formed. The plaintiff’s damages come from the fact that by the defendant’s breach the copartnership was never entered upon and the plaintiff lost the profits which would have resulted therefrom. The plaintiff’s rights come, not from the copartnership business, but from the defendant’s breach of the agreement to enter upon and conduct the copartnership business contemplated. The action, therefore, is to recover damages for breach of contract only.

On the question of damages the complaint is not very definite; it alleges that the plaintiff has suffered $12,000 damages. Perhaps the defendant could have obtained an order requiring the complaint to be made more definite upon that subject." Upon a demurrer to the complaint the pleading must be liberally construed, and all reasonable intendments are in favor of the plaintiff. (Ellsworth v. Agricultural Society, 99 App. Div. 119.)

There may be difficulty in proving the plaintiff’s damages, but that is no reason for dismissing his complaint. He has alleged a valid contract and a readiness to perform on his part and a demand upon the defendant for performance and his refusal and the damages resulting from that refusal. The complaint is, therefore, sufficient as against a demurrer.

If the defendant is well and favorably known as a producer and promoter of his entertainment, as he admits in the contract, evidently the copartnership agreement had value to the plaintiff, and by the breach damages would follow. It is evident the plaintiff is not seeking to recover the $100 a week as that would be a small part of the damages alleged. He seeks to recover the general damages resulting from the defendant’s refusal to perform. The allegation about the $100 per week was evidently thrown in as a safeguard, but has no bearing upon the main question relied upon.

I, therefore, favor a reversal and a new trial, with costs to the appellant to abide the event.

All concurred, except Woodward, J., who dissented in an opinion, in which Howard, J., concurred.