
    ROSS et al. v. WACKE et al.
    (Supreme Court, Appellate Term, First Department.
    May 14, 1914.)
    Appeal from Municipal Court,
    Borough of the Bronx, Second District. Action by Arthur S. Ross and another against "Herman Wacke and another. Judgment for plaintiffs, and defendants appeal. Reversed, and complaint dismissed. Stephen O’Brien, of New York City, for appellants. Edward S. Napolis, of New York City, for respondents.
   GUY, J.

Defendants appeal from a judgment in favor of plaintiffs, entered by the court after a trial without a jury, in an action to recover damages for breach of contract of employment. Plaintiffs were engaged by defendants at a salary of $40 for a four-day theatrical performance of a play produced by plaintiffs. The contract provided that “either party may cancel this agreement after the first performance, without any liability whatsoever, if unsatisfactory for incompetency, vulgarity, inebriety,” etc. After the first performance defendants notified plaintiffs that they elected to cancel the agreement because of the vulgarity and incompetency of the performance. The sole question at issue is whether defendants acted in good faith in canceling the contract, and whether such cancellation was made on any of the grounds provided for in the contract. The evidence clearly establishes that the production was inherently vulgar and that defendants acted in good faith in canceling the contract. The judgment must be reversed, with costs, and the complaint dismissed, with costs.

BIJUR and PENDLETON, JJ„ concur in result.  