Albera v. Sciaretti , 131 N.Y.S. 889 ( 1911 )

Page, J.

The plaintiff demurs to the affirmative defenses contained in defendant’s answer. The defendant, talcing advantage of the rule that a demurrer searches the record and attacks the first error in pleading, asks judgment on the insufficiency of the complaint. The contract which is the basis of the action is attached to and made a part of the complaint.

The plaintiff is the manager and proprietor of the San Carlo Opera Company and entered into a contract with the defendant whereby the defendant was engaged to render services at such theatres, as required, commencing on or about the 2d day of May, 1910, for a season of about four weeks or more unless cancelled earlier. The party of the second part (defendant) agrees to render services at such theatres, in all characters and doubles in which he may be cast, in a correct manner, according- to the direction of the party of the first part, and to sing four times each week in all roles in which he may be cast. “ The party of the first part hereby agrees to pay the said party of the second part a weekly salary of one hundred and sixty dollars * * * payable on Tuesday of each week. * * * It is agreed and understood by both parties that in the number of performances to be given each week Sunday performances shall also be included in the week without extra compensation to the party of the second part.” It is further provided that non-playing Sundays shall not be figured as lost time.

This contract clearly provides for Sunday performances of a character prohibited by the laws of this State and hence is void and unenforceable. Penal Law, §§ 2143, 2152; Hallen v. Thompson, 48 Misc. Rep. 642; Matter of City of New York, 57 id. 52, 56. Plaintiff contends that in certain States such Sunday performances are permitted by statute, and that, as the contract is silent as to the place of performance, the court should in its endeavor to sustain the legality of the contract presume it was the intention of the parties that Sunday performances were to be had only within such States as permitted them. The difficulty with this position is two-fold: first, the court, judicially, has no knowledge of such statutes, and cannot take judicial notice of the statutes of other States; second, when a contract is silent as to the place of performance, it is presumed to be performed within the State where it was made, and must be tested by the laws" of that State. The contraot is not divisible; the salary is $160 per week, including Sunday performances; the court cannot apportion the weekly salary and rewrite the contract.

Judgment will, therefore, he given for the defendant, sustaining the demurrer and dismissing the complaint.

Judgment for defendant.