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18 Misc. 371

Standish v. Brady

City of New York Municipal Court

Decided October 15, 1896

City of New York Municipal Court · decided 1896-10-15

<p>Contract — Custom.</p> <p>Where an actress alleges a special agreement engaging her services to play an inferior part, for the theatrical season, at a salary named, the defendant has a right to prove a uniform custom in such cases that the parties shall execute a contract in writing containing a clause reserving the right to either party to terminate the contract on two weeks’ notice. Such evidence is not competent nor admissible to change the contract, but is admissible as proof of what the contract was and as bearing upon the probabilities. '</p>

Relies on Barney v. Fuller

Decided 1896-10-15

Schuchman, J.

¶1This is an appeal from a judgment, in favor of the plaintiff, entered upon the verdict of a jury on a trial before Mr. Justice O’Dwyer, and also from an order denying a motion for a new trial.

¶2... The plaintiff alleges in her complaint, and proves, at the trial, a special agreement engaging her services as an actress by the defendant,, for the season, from September 2, 1891, to April 5, 1895, or thereabouts, at a salary of $30 per week.

¶3The defendant in his answer and at the- trial denied that any such agreement was made;, and especially denied the duration of the said contract. .

¶4The defendant at the trial offered to prove a uniform custom in the ¡profession that when an actress: is engaged. for an inferior character, such as the plaintiff, and the engagment is for the season,, to have a contract in iviiting with the clause reserving the right to either party to terminate the contract on two. weeks’ notice.

¶5The offer was objected to, the objection sustained and the excep tion taken.

¶6The defendant, by the sixth request, requested the court to charge the substance of the said- offer, which request was denied and exception taken by the defendant.

¶7This brings up squarely the question, whether the evidence should have been admitted' or not.

¶8The rule of law seems to be, in Controversies whér'e a special agreement is alleged to have "been made on one- side and is denied on the other, that it is "relevant to put in evidence any circumstances which tend to make the proposition at issue, either more or less improbable; and this, not to "change the contract, but as evidence of what it was and the probability that the agreement or one or the.other was made. Barney v. Fuller, 133 N. Y. 605-607; Rubino v. Scott, 118 id. 662; Ostrander v. Snyder, 73 Hun, 378-382; Cornell v. Markham, 19 id. 275.

¶9' On that rule we think that the rejected evidence should have been admitted.

¶10The exception being an error, judgment and order must be reversed, with costs to the, appellant to abidé" the event.

¶11Van Wyck, Ch. J., and Fitzsimons, J., concur.

¶12Judgment and order reversed, with costa to- appellant, to abide event.

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