
    Hans Bartsch, Appellant, v. Al. H. Woods, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1914.)
    Contracts — for production of operetta — action to recover “ advance royalties.”
    Defendant by a contract for the production of an operetta owned by plaintiff acknowledged the receipt of $1,000 “ as an additional consideration for the making of the agreement, which sum shall be considered as an advance upon royalities ” and it was provided that such sum should belong exclusively to plaintiff whether the royalties reached that amount or not, or whether the operetta was produced. Defendant agreed that should he fail to produce the play prior to April 1, 1913, he would pay plaintiff a further sum of $1,000 as “ advance royalties ” and extend the date for the production of the play to November 1, 1913, and in that event to continue the public performance for a period of at least ten weeks during the season. On defendant’s failure to produce the play prior to the earlier date, an action was brought to recover the second $1,000. Held:
    That the provisions of the contract for the payment of the amount sued for was absolute.
    The fact that the amount was denominated “ advance royalties ” merely indicated that it as well as the first payment of $1,000 was to be deducted from royalties when earned, and in nowise militated against the absoluteness of defendant’s promise to pay.
    Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered after a trial by a judge without a jury.
    Ernst, Lowenstein & Cane (Melville H. Cane, of counsel), for appellant.
    Henry J. and Frederick E. Goldsmith, for respondent.
   Bijur, J.

There was no dispute as to the facts, the trial involving merely the interpretation of an agreement between the parties. Plaintiff, called the pro-, prietor,” thereunder granted to defendant, denominated “ manager,” the right to produce' a certain play. The agreement was dated September 20,1912. Clause 6 provided that the manager should pay $1,000 on or before the making of the contract, receipt whereof was acknowledged, as an additional consideration for the making of this agreement, which sum shall be considered as an advance upon royalties * * *. Said sum, however, shall belong absolutely to the proprietor whether the royalties under this agreement reach said sum or not or whether * * * said operetta is performed * * * or not.” Under the seventh clause the manager agrees to produce the play prior to April 1, 1913, and to give ten weeks of performances during that season. Then follows this provision: “ In the event that the manager shall fail to produce the said opera before April 1st, 1913, then the manager agrees to forthwith pay to- the proprietor a further sum of One thousand ($1000.00) Dollars as advance royalties, and said date for production shall be extended to November 1st, 1913, and in this event the manager agrees to continue the public performances and representations of the American version of the said operetta for at least ten weeks during the theatrical season 1913-14. ’ ’

The manager having failed to produce the play prior to April 1,1913, this action was brought for the second payment of $1,000. The learned judge below seemed to be of opinion that, because the second $1,000 was denominated “ as advance royalties ” and because there was no provision as in the sixth clause that the said sum should belong to the proprietor absolutely, etc. ’ ’ — the meaning of the seventh clause was that the manager should have an option, if he so desired, to reserve to himself the continued rights to the play and thus be able to produce it during the next theatrical season on payment of the second $1,000. In this view I do not concur.

The requirement that the second $1,000 be paid is absolute. The fact that it is denominated advance royalties ” indicates to my mind merely that this sum, as well as the first payment of $1,000, was to be deducted from the royalties when earned, but that proviso in nowise militated against the absoluteness of the promise of the manager to pay. In this respect I think the agreement signed is on all fours with that common form of agreement in cases involving the employment of an agent or salesman, to whom it is frequently provided that there shall he advanced” a weekly sum for a definite period, the sum to be deducted from the commissions earned. The employer must pay the advance” leaving repayment to the contingency of the earning of commissions. Schlesinger v. Burland, 42 Misc. Rep. 206; Lobsitz v. Leffler, 140 App. Div. 14.

Nor do I think that the omission to repeat in clause 7 the language of clause 6, that the sum should belong to the proprietor whether performances were given or not, is sufficiently significant to be entitled to any weight in view of the precision with which the obligation to pay is expressed.

•Judgment reversed, with costs, and judgment directed for the plaintiff, with costs. ' .

Seabury and Page, JJ., concur.

Judgment reversed, with costs.  