
    HATTIE GRINNELL, Respondent, v. IMRE KIRALFY, Appellant.
    
      Contract of employment while the employer “ shall feel satisfied ” — right to discharge the employee, Turn fan' absolute.
    
    A contract, under •which one Hattie Grinnell was employed as a souhrette in a theatrical troupe for the seasons of 1887 and 1888, at a salary of forty dollars a week, provided, among other things, as follows:
    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.
    
      Held, that the words “in good faith” referred to the previous expression “shall feel satisfied,” and that the party employed was thereby protected from a capricious or arbitrary discharge from the employment.
    That the employer contracted affirmatively for the exercise of good faith on his part in discharging his employee. 
    
    Appeal by the defendant from a judgment, entered in the office of the clerk of the county of New York on November 19, 1888, in favor of the plaintiff and against the defendant, for the sum of $163.44 damages and costs; and also from an order, entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial upon the minutes.
    The action was brought to recover damages arising from the alleged illegal discharge of the plaintiff from her employment as an “ ingenue ” and soubrette by the defendant.
    
      Stephen O. Baldwin, for the appellant.
    
      August KoJm, for the respondent.
   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 :

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

Tbe plaintiff was tbe party of tbe second part, tbe defendant of the first. Tbe defendant contends that as there was no comma in tbe original instrument after tbe word “ contracted,” tbe good faith referred to, was bis in making tbe contract. Tbe plaintiff, on tbe other band, claims that tbe words “ in good faith ” refer to tbe previous expression “shall feel satisfied,” and that thus she was protected from a capricious or arbitrary discharge. "We think the latter is tbe fair and reasonable construction of this contract. It was superfluous for tbe defendant to affirm bis good faith in entering into tbe contract. On bis 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 be meant that tbe plaintiff was not to be discharged at bis mere pleasure. If a discharge at will bad been intended, it would have been easy to say so in a few words. But clearly it was not intended to give tbe defendant this absolute power. Tbe plaintiff was an experienced actress of seventeen years’ standing, and she bad served tbe defendant in that capacity during a prior season. Thus be was well acquainted with her capacity. Tbe engagement, consequently, was not an experiment nor a mere trial.

It contemplated tbe steady employment, for a full season, of a person of recognized qualifications, but with a reasonable check upon inattention or carelessness. Tbe jury have found that tbe plaintiff performed her duties fairly and properly, and tbe defendant bad no right to discharge her upon a pretense of dissatisfaction, which, as tbe verdict necessarily establishes, was neither genuine nor honest. • We need not, therefore, consider whether, even upon tbe defendant’s construction of tbe contract, be could have discharged her at his pleasure, in other words, whether tbe case comes within tbe general principles laid down in Duplex Safety Boiler Compamy v. Garden (101 N. Y., 389) and Doll v. Noble (22 N. East. Rep., No. 16, p. 406; S. C., 116 N. Y., 230), 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.

Bajjtlett, J., concurred.

Van 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.

Judgment and order affirmed, with costs.  