The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1869-04-02
SIXTH DISTRICT CIVIL COURT.


Constitutes nm Orchestra.
Car, Anscn,az us. Joseph g. Boowni,sg ana Isaac
Aoo'e.-The following opinion has been rendered by
Judge Lane In this case:-On about the Sd day Of
January, 1869, the plaintiff entered into written
agreement with the defendants, who were copartners
and owners or lessees Of Cosmopolitan Hall, Third
avenue Fifteenth street, to conduct the orches
ira therein every night In the week and twice
on Sundays, for the term of four weeks
from the Sd Of January, 1859, until the
3lat OF the same month, at salary Of seventy five
dollars per week. On the same day. and simultane
ously with this contract the def endants in presence
OF the plaintiff, and by mutual understanding, en-
tered into another contract IN writing with one
Henry Baeder to furnish for this orchestra certain
musicians manning the different instrumental In all
twenty-five. This number Of musicians was duly
furnished by Eaeder on the Cd day OF January,
1859, and the plaintiff entered upon his duties as
leader or conductor Of this orchestra, and con-
to no 70 up TO and Tuesday
or six Of the performers were absent. The
plaintiff thereupon refused to conduct Q less num-
Der than what he termed ian orchestra" Of twenty
two musicians, but rendered his services daily for
the balance Of the week to lead or conduct proper
or suitable orchestra or such he had previously
conducted until Tuesday evening. He also advised
the defendants to discharge Baeder and his mu.
sicians asserting that they Lad broken their con-
performers who would attend to their duties On
the 9Th OF January the defendants discharged
Baeder and the musicians he had furnished, but
failed to procure new orchestra OF the same
number, rendering the services OF some ten or
twelve persons In their place. whom the
Der was increased to at least twenty, with
the proper instruments. There was considerable
conflicting testimony on the trial az to whether or
musicians informed the defendants that he v0lunta-
rlly rescinded his contract AS matter Of fact, find
that he did not do but on the Contrary rendered
his services daily; until the end or the week. to carry
out his original contract and at the end OF the week
ne demanded ms salaryEseyenty,hve dollars. ON
that an orchestra consisted or no definite NUMBER
that 1t was merely arbitrary, and that the plaintiff
was bound by the terms OF MS contract 10 conduct
any number Of musicians be the same more or less.
He also objected 70 the introduction of the contract
between the defendants and Baeder evidence, con-
tending that IL had nothing to with that between
them and the plaintiff. The term or word "orches-
tra Is OF Greek origin and means the place in front
Of the auditorium allotted to the 'chorus for their
Dances and afterwards and by the Romans occupied
by the Senate. But IN modern times IL has gradu-
musicians. The encyclopedia Britannica" under
ing account of The origin GIN nature ''' and and
known at the present day. According to this au-
thority, "A complete orchestra consists OF number
OF stringed and wind instruments and few instru-
OF percussion the latter being chiefly Kettle
drums. The nature and magnitude OF an orchestra
must be regulated by the locality, since large
chestra in small theatre or concert room or the
converse would be inefectual though from different
causes. The relative proportion OF instruments In
All OTCueStTd IL VI muCu UupOTAnCc dS W us
erect" The orchestras in different localities
are then described varying from forty-seven
to 100 performers. Although there was no
evidence offered on the trial to the precise num-
Der that should constitute orchestra 1t can readily
be perceived that. in order 10 produce the requisite
concord OF sweet sounds" certain number of in
struments IS essential. II one part predominates
the other the harmony is at an end. But, aside
from this view OF the case, 1t appears to me to be
clear that the contract between Baeder and the de-
PENDANTS should be admitted In evidence as demon
strating what the parties at bar meant by the or
chestra to be conducted according to the terms of the
contract. II Is well settled that, IN constituting writ
ten instrument 1t Is proper to look at the surround
ing circumstances and parole evidence Is always
admitted in order to ascertain the subject 10 which
instrument refers. blossom vs.. Griffin, 10 n Y,
500; Greeneaf ev., $780, Technical terms are always
susceptible OF explanation IN written instrument;
and In this view / think 1t eminently proper aud
more imperative TO admit the Baeder contract TO
ascertain the true intent and meaning OF the word
"Orchestra," as mentioned In the contract In ques
ton, well as the meaning attached to IL by the
parties themselves. / think, according to the con-
tract the planti was not bound To lead or conduct
a less number VI performances than Twenty-Five
and that the defendants were bound 10 provide them
Judgment, must, therefore, be rendered Tor the
plantin for seventy-nve dollars, VITA interest aud
costs, and the usual allowance.