#### Walter W. Newcomer, Respondent, v. Charles E. Blaney et al., Appellants.

(Supreme Court, Appellate Term,

November, 1900.)

Contract — Construction oí one for the season of a play.

Where theatrical managers hire a musical director for the season of a play, stipulations as to what shall be paid in case either party elects to end the hiring during the season, have no bearing upon the rights of the parties where the season has actually ended.

Appeal from a judgment in favor of the plaintiff, rendered in the Municipal Court of the city of New York, eighth district, *96borough, of Manhattan. Action by the plaintiff, a musical director, to recover of the defendants, theatrical managers, arrears of salary, railroad fare back to New York city, and damages for failure to give him two weeks’ notice of the termination of his employment.

James Foster Milliken, for appellants.

M. Strassman, for respondent.

Beekman, P. J.

The defendants are engaged in the theatrical business, and, at the time of the employment by them of the plaintiff, had a traveling company in the field, performing a play called “ A Boy Wanted,” under the management of one Gill, who acted in that capacity for the defendants. On the 24th day of August, 1898, Gill, acting in that behalf, within the scope of his authority, employed the plaintiff as musical director of the company. The employment was by telegram, reading as follows: “ Same salary as last season; join at once. Answer Harrisburg.” The plaintiff joined the company, accordingly, and continued with it until the 18th day of March, 1899, on which date the company was at Quincy, 111.", and was about going to some other place, when the manager abandoned it, taking with him the box receipts, and leaving the company stranded and helpless. This brought the season, as it is called, to an end, 'and apparently no further performances were thereafter given.

In order to fully understand the telegram under which the plaintiff was employed, it is necessary to refer to the fact that the plaintiff had been employed by the defendants for the previous season, under a written agreement, bearing date the 12th day of July, 1897, by which he agreed to render services in a similar capacity, in connection with the same play, for the season commencing on or about the 1st day of September, 1897, at a salary of thirty-five dollars per week. That agreement contained, among others, the following clauses: “IV. It is mutually agreed that if at any time during this engagement or rehearsals either party desires to annul this contract, it may be so annulled by either party giving to the other two weeks’ notice in writing of their, his or her intention so to do, without assigning any reason or cause therefor. * * * IX. If this contract is canceled on two weeks’ notice by the first party, he agrees to pay the railroad fare of the *97party of the second part (the plaintiff) back to New York. If the second party (the plaintiff) gives the aforesaid notice, he agrees to pay to the party of the first part the railroad expenses of his successor to join the company, as well’ as his own expenses back to New York.” It seems to be claimed by the plaintiff that these two clauses, although contained in the contract, relating to a prior engagement, which has entirely come to an end, are to be regarded as part of the terms of the new employment which arose under the telegram above referred to. He has, accordingly, brought suit, not only for his arrears of salary, but also for his railroad fare back to New York, amounting to twenty-five dollars, and seventy dollars, as damages for the failure of the defendants to give him two weeks’ notice of the termination of his employment.

Assuming, for the purposes of argument, that the telegram was broad enough to import a re-employment, upon the same terms as the old one, we are of the opinion that the construction of the clauses in question, contended for by the counsel for the plaintiff and adopted by the trial court, is erroneous. It is clear that the parties were contracting, with respect to a termination of the contract of employment, while the play was in the field, and before the termination of the season. This is obvious, upon the very face of the stipulations in question, notably where the plaintiff himself agrees that, if he terminates the contract, he will not only pay his own expenses back to New York, but also the railroad expenses of his successor toc join the company. It is, therefore, perfectly apparent that, upon no reasonable construction, can the duly of giving two weeks’ notice in the case above mentioned refer to notice of the termination of the season. The engagement of the plaintiff was for the “ season ” of the play. When that season was to end was in no' way a matter of stipulation between the parties, and when it ended the contract of employment terminated by its own terms. It was conceded, upon the trial, that the season came to an end on the 18th day of March, 1899, when the company was broken up, and the question of the defendants’ liability to the plaintiff is, therefore, to be determined by the measure of their duty towards the latter upon the normal termination of the contract; and, as upon the termination of the *“*season ” the defendants are under no agreement to give any previous notice of the same, or to pay the plaintiff his railroad fare back to New York, it was error for the trial justice to award judgment for *98more than the arrears o-f salary and interest.' These arrears amounted to fifty-five dollars, upon which the plaintiff was entitled to interest from March 18, 1899, to the date of trial, to wit, the sum of four dollars and sixty-seven- cents. The judgment will, therefore, be modified by reducing the same to the sum of seventy-four dollars and thirty-nine cents, and, as so modified, affirmed, without costs.

Judgment modified by reducing the same to the sum of seventy-four dollars and thirty-nine cents, and as so modified, affirmed, without costs.

Gieoerich and O’Gorman, JJ., concur.

Judgment modified, and as modified, affirmed, without coste.