The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-29
THE COURTS.
Business Transacted in the
Surrogate's Office.
VICTORIEN SARDOU'S FERNANDO"
Purchasing Pennsylvania Goa
Lands.

In the matter Oh tue Will OF Slepueu H.
devising all his real and personal estate to his
widow, Jane, notice OF contest has been lodged
In the surrogate's once on benali OF the con-
testants, his CHILDREN, minors, who, through their
GUARDIAN claim that the will was Obtained by
fraud and circumvention.
In the matter OF the will OF Mary Elizabeth
Coyne notice OF contest is entered by Juiia
Grogan, eldest child of deceased, for whom no
provision was made, on the ground that the VIII
was obtained by undue influence. The decedenu
devised all her property to her husband In trust
for three other children, minors.
The Supreme Court. General Term, Judges, In
their recent decision in the Roliwagen will case,
entered an order directing payment OF costs by
the alleged widow OF the decedent Motion was
made yesterday before Judge Daniels to resettle
this order ana make the costs chargeabie upon
the whO.e. Judge Daniels took the papers, re-
serving his decision.
A suit has been commenced in the Supreme
Court by the Nassau Bank, OF this city, to
x32 900 from the National Bank OF Cook County
Illinois.
The Bar are notified that chambers OF the Court
OF Common Pleas Will be held to-day and onor-
row In the General Term room.
VICTORIEN SARDOU'S "FERNANDE.
An interesting theatrical case was argued yester-
day In the Supreme Court, General Term, before
Judges Brady and Daniels. James Schonberg
claims to have adapted from the French the
drama of hernandez by VIctorien Sardou, and
arranged with Arthur Cheney for its representa-.
ton at sewyn's Theatre, in Boston. Tue agree
ment was that the play was to be performed on
May 7, 1870, or within reasonable time thereaf-
ter and Mr.. Schonberg was to be paid $40 Tor each
night the play was performed, the latter, mean
time, furnishing the manuscript OF the
play and the scene plots The play was
not produced. and Mr. Schonberg brought suit
for $4,000 damages. The case was tried before
Judge Davis, at Supreme Court, Circuit, in April,
1873, and resulted in verdic. Of S527 for Mr..
Schonberg. motion for new trial was made
and denied, and, Judgment being entered. the
case was carried on appeal TO the General Term.
MIR. william d. Booth, counsel for MIR. Cheney
Insisted that the transaction between the parties
amounted only TO a license; that this was license
or permission to use the play at the rate of $50
per night. nothing more, and that no damages
were proven as required IN an acuon Tor damages
for breach Of alleged contract. He insisted,
further, that, assuming that contract was made
as alleged in the complaint, and that the plaintiff
had duly fulfilled all the terms and conditions Of
the contract on his part, aud that the defendant
never did produce the play, the plaintiff was not
entitled to receive Tor SUCH breach the contra ct
more than S20-the stipulated r0yalty-fOr one
night and that the Court erred IN holding and IN
structing the iury that the defendant was liable
TO pay for the whole season the same as II he mad
performed the pay every night ne also urged
ment that the defendant was TO continue It's per.
torrance. AS TO the plaintiffs right to recover
on the ground that the defendant kept the manu-
script as charged by the Court below, he claimed
that there was no agreement Tor It's return; that
1t would have been only the DEFENDANTS DUTY to
return II on demand; that no such demand was
made; that 1t was finally sent back without re-
not nave been any damage. ConceuiDg that 1t Is
that the plaint;ff did not make what he would
form the play it was contended that this Is no
more a cause OF action against the defendant than
1t would have been against any other or every
other theatre IN the country.
Mr.. charles Blondy. OF Hall Biondy. counsel
for MI. schonberg. made the opposing argument. He
side was purely discretionary matter, and could
not be reviewed on appeal; that the complaint
alleged contract, and that the answer OF the
making Of it. Upon this Issue the case came to
trial. and at the close OF the PLAINTIFFS case the
defendant asked leave to amend by denying what
his answer admitted and alleging license IN
stead OF a contract. On This state OF facts he
commended that it would nave been manfestly
just II on the trial leave had been gwen 10 so
ages was limited TO $40 Tor one performsnce he
insisted that the proper measure OF damages was
such as the parties may be fairly supposed to nave
contemplated at the time the contract was en-
tered into as likely to result from it. They are
presumed 10 nave been taken into considera-
lion and deliberatcd upon before the contract was
made and formed. as IN this case, The only induce
ment TO the arrangement. 1t was clear, ne urged
contemplated producing the play as long as 1t
proved q success; Tor having Jailed TO produce 1t
underlined for the 10th and again for the 23d, but
was never produced. The plantin had reason TO
suppose the play would be produced on one or
other OF these days, and the correspondence
showed that the parties contemplated q success
full run. The piece was a new one had never
been produced III This country up TO this period,
ana owing 10 the defendants breach Of hts con-
tract revision from the same work, but by an
other author. was produced at rival theatre with
every success. and that by retention of the manu-
script and scene plots the plaintiff was prevented
from contracting with other managers Tor the
production OF the piece, and that though the
plaintiff had received 1927 damages It did not
commence TO compensate him for his loss, the
rule OF law not permitting the recovery OF pros
pective damages.
the Court took the papers, reservlng its decis-
ion.