#### Hattie Grinnell, Resp’t, *v.*Imre Kiralfy, App’lt.

*(Supreme Court, General Term, First Department,*

*Filed January 24, 1890.)*

Contract—Services—Discharge.

A contract for services in an operatic troupe provided “ that if the party *363of the first part shall feel satisfied that the party of the second part is incompetent to perform the duties for which said party of the first part has contracted in good faith, or is inattentive to business, etc.,” the contract could be annulled. *Held,*that the words “in good faith" referred to the expression “ shall feel satisfied,” and protected plaintiff from a capricious and arbitrary discharge; that the omission of a comma after the word “contracted” did not affect this construction of the provision.

Appeal from a judgment in favor of plaintiff rendered upon a verdict at circuit, and also from an order denying a motion for a new trial upon the minutes.

*Stephen C.*Baldwin, for app’lt; *August*Kóhn, for resp’t

Barrett, J.

The single question in this case is, whether the defendant had a right to discharge the plaintiff at his pleasure. The material part of the contract was in these words:

HI. The said party of the second part further agrees, that if said party of the first part shall feel satisfied that the said party of the second part is incompetent to perform the duties for which said party of the first part has contracted in good faith, or is inattentive to business, careless in rendering of characters, or guilty of any violation of the rules, then the said party of the first part may annul this contract by giving one week’s notice to said party of the second part to that effect, and said party of the second part shall have no further claim upon said party of the first part.

The plaintiff was the party of the second part; the defendant of the first. The defendant contends that as there was no comma in the original instrument after the word “contracted,” the good faith referred to was his in making the contract. The plaintiff, on the other hand, claims that the words “ in good faith ” refer to the previous expression “ shall feel satisfied,” and that thus she was protected from a capricious or arbitrary discharge. We think the latter is the fair and reasonable construction of, this contract. It was superfluous for the defendant to affirm his good faith in entering into the contract. On his contention these words “ in good faith ” have no contractual force, and simply amount to an unnecessary assurance of honesty. They are, however, both relevant and important if he meant that the plaintiff was not to be discharged at his mere pleasure.

If a discharge at will had been intended, it would have been easy to say so in a few words. But clearly it was not intended to give the defendant this absolute power. The plaintiff was an experienced actress of seventeen years’ standing, and she had served the defendant in that capacity during a prior season. Thus he was well acquainted with her capacity. The engagement consequently was not an experiment nor a mere trial.

It contemplated the steady employment for a full season of a person of recognized qualifications, but with a reasonable check upon inattention or carelessness. The jury have found that the plaintiff performed her duties fairly and properly; and the defendant had no right to discharge her upon a pretense of dissatisfaction which, as the verdict necessarily establishes, was neither genuine nor honest.

We need not, therefore, consider whether, even upon the de*364fendant’s construction of the contract, he could have discharged her at his pleasure; in other words, whether the case comes within the general principle laid down in *Boiler Co.*v. Garden, 101 N. Y., 389; 1 N. Y. State Rep., 51; and *Doll*v. *Noble,*North Eastern Rep., vol. 22, No. 16, p. 406; 26 N. Y. State Rep., 629; or within the rule which governs as to contracts made “ to gratify taste, serve personal convenience or satisfy individual preferences.”

The defendant, in our judgment, contracted affirmatively for his own good faith, and'he must be held to his bargain.

There is nothing in the exception with regard to the programme. That was introduced simply to show that the defendant kept the plaintiff’s name on his bills for some time after the discharge. It was read in evidence without objection, although the proof that *it was*one of the defendant’s programmes was objected to.

Being in the case without objection, it was proper to be considered. It showed at least that the defendant’s company was performing at 'its date, and that such date was embraced within the season. It also showed that the week covered by that date was not one of those when the defendant did not play. It was a circumstance too upon the question of his good faith. And at all events it was plainly harmless.

The judgment and order appealed from should, therefore, be ■affirmed, with costs.

Yan Brunt, P. J.

I concur. The addition of the words “ in good faith ” in the contract in no manner changed the relation of the parties to it The defendant, even if the words had not been there, could not have discharged the plaintiff at his pleasure.

Bartlett, J., concurs.