Melcer v. Orbes , 117 N.Y.S. 929 ( 1909 )

MacLEAN, J.

On March 7, 1905, the defendant and plaintiff’s assignor entered into a written contract in London, England, whereby die defendant agreed to accept through the agency of the assignor of the plaintiff an engagement to appear at the New York Hippodrome, or Luna Park, as acrobatic clown, at a weekly salary of $125, the engagement to be for 24 weeks, to commence on March 20, 1905, the writing reciting:

“I agree to pay you or your executors and assigns 10 per cent, commission on all moneys accruing from this engagement, and I hereby authorize Thompson & Dundy to deduct and pay J. F. Percival Hyatt [plaintiff’s assignor], or order, the same from my salary in any manner J. F. Percival Hyatt may deem expedient. I also agree to pay you the same rate of commission on all. subsequent engagements at all Thompson & Dundy’s enterprises.”

In March, 1906, the defendant entered into a written contract with Thompson & Dundy for a four years’ engagement, to begin Septemher 4, 1906; but, Thompson & Dundy giving up the Hippodrome in June, he in August made a new contract, upon and for like terms and time, with Shubert & Anderson, who took the Hippodrome some time in July or August, but who, so far as appears, did not in any maimer represent Thompson & Dundy.

In this action, brought to recover commissions on the subsequent engagement, the plaintiff has recovered a judgment against the defendant, which cannot be sustained. The liability of the defendant for commissions, under the contract with plaintiff’s assignor, upon all subsequent engagements in one of Thompson & Dundy’s enterprises, accrued only upon the moneys accruing from the engagement under the 1906 contract with Thompson & Dundy. It nowhere appearing that Shubert & Anderson succeeded to that contract by or with the assent of the parties, and their contract with the defendant appearing to be new and independent, the judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.