#### Percy Darrell Standing, Appellant, *v.*William A. Brady, Respondent.

First Department,

July 10, 1913.

Contract—action by actor for services— evidence.

Where, in an action by an actor against a theatrical manager to recover for services under a contract by which the plaintiff agreed to play such parts as should be assigned to him, and the defendant reserved the right to annul the contract at any time during the progress of rehearsals, there is no evidence that the defendant ever annulled the contract or discharged the plaintiff, a verdict in favor of the plaintiff should be reinstated.

Appeal by the plaintiff, Percy Darrell Standing, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 3d day of January, 1913, setting aside the verdict of a jury in plaintiff’s favor for $2,500 and granting defendant’s motion for a new trial.

*Gerald B. Rosenheim,*for the appellant.

*Nathan Vidaver,*for the respondent.

Scott, J.:

Plaintiff, an actor, was hired by defendant, a theatrical manager for the season of 1910-1911, guaranteed to be not less than twenty-five weeks commencing on or about September 15,1910. By the agreement, which was in writing, plaintiff undertook to play such parts as should be assigned to him, and defendant reserved the right to annul the contract at any time during the progress of rehearsals. In August plaintiff was assigned to play a part in a production known as “The Nigger.” He rehearsed several times and then concluded that the part was unsuited to him and objected to playing it. The disputed fact in the case was whether plaintiff positively refused to play the part, or whether he merely protested vigorously, and defendant and his representatives finally acceded to his protestations. Upon conflicting evidence the jury resolved this question in plaintiff’s'favor. The trial justice apparently took a different view, and if there were no other question in *658the case we should hesitate to reverse his action, because his opportunities to judge of the weight to be given to the evidence of the several witnesses were necessarily far superior to ours. But even if it be assumed that the jury was wrong, and that plaintiff did positively refuse to play the part assigned to.him, while this refusal would doubtless have justified an annulment of the contract and a discharge of the plaintiff, there is no evidence whatever that defendant ever did annul the contract or discharge the plaintiff. On the contrary, it appears, without contradiction, that in October, 1910, long after the alleged refusal, plaintiff sought a release from the contract, telling defendant that another manager desired his services, to which defendant replied by bidding him to hold on for a while. In fact the defendant does not allege that he ever discharged plaintiff, merely alleging conduct which would have justified a discharge.

The order appealed from must be reversed, with costs and disbursements to appellant, and the verdict reinstated.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Order reversed, with costs and disbursements to appellant, and verdict reinstated. Order to be settled on notice.