
    Jennie Fisher, Resp’t, v. Robert B. Monroe, et al., App’lts.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed December 17, 1891.)
    
    1. Contract—Theatrical—Evidence.
    In an action for breach of contract by defendants in discharging plaintiff, an actress, for refusing to appear at a final rehearsal, the plaintiff was allowed to testify that she had performed all the duties called ■ for by the contract on her part. Beld, error; that it was for the jury to say from all the evidence whether such was the fact.
    2. Same—Expert.
    In such an action, evidence cf an expert as to whether a failure of a member of the cast who held an important part or who was cast with the leading lady in an important situation to attend a final rehearsal would be a material matter under the circumstances, is admissible, and a refusal to admit it is error.
    Appeal from judgment in favor of plaintiff and from order denying motion for a new trial.
    
      W. H. Phillips, for app’lts; S. Miller, for resp’t.'
   McCarthy, J.

Plaintiff brings an action for breach of contract by which she was to render services as an actress fendants’ theatrical company. The contract is set forth p. 4, case. The action was tried before a jury with judgment for plaintiff and appealed to the court of common pleas from a judgment of general term of the city court affirming the judgment, and was by common pleas court reversed and new trial granted. The action was tried before the court and jury in June and a verdict rendered for $565 in favor of plaintiff.

This appeal is from an order denying defendants’ motion for a new trial and from the judgment.

The following facts are not controverted: Plaintiff entered into the performance of the contract. The company were playing at Columbus, Ohio, and while so playing were holding rehearsals by reason of the engagement of a new leading lady, who was to appear on the following Monday evening for the first time.

A rehearsal was called in the usual manner on Friday night, after the performance, for the following (Saturday) morning at 10:30 o’clock A. M. Plaintiff asked to be excused on the ground that she was tired and nervous, not, however, claiming to be sick; she was not excused, defendants declining to excuse her.

This rehearsal was, in fact, a “ final ” rehearsal.

The fact was generally known throughout the company.

A final rehearsal is one where not only are the lines rendered but the action of the play is rehearsed as at an actual performance. If the part requires a person to be thrown down, he is grasped and thrown down.

Plaintiff did not attend the rehearsal. She did attend a matinee that Saturday afternoon, and after the performance that evening was discharged by defendants for not attending the rehearsal.

Plaintiff admits that it is part of the general duty of an actress to attend rehearsals and it is so understood, and that the piece could not be properly presented till the new leading lady had been rehearsed in her part. It was a rule of the defendants also and so understood in the company. Defendants have paid plaintiff for her services in full to the date of discharge and this action is only for damages for the alleged breach growing out of the discharge.

Plaintiff denies she knew of any rule requiring her attendance at rehearsal. This was unnecessary, as she knew it was her duty. See supra. She denies she knew this was a final rehearsal, though admitting she knew the new leading lady was to commence on the Monday night. Her answers were a practical admission of the fact, and she did not know of any other opportunity to rehearse before then.

Plaintiff expressly denied being sick and at this trial there was no claim of physical exhaustion amounting to sickness. She said she was not sick, but she was very tired. On the contrary it is admitted by plaintiff it was the ordinary and usual fatigue attending the labors of her profession, and that she had been an actress since she was three years old.

It is contended by defendants that the plaintiff was in her usual state of health on the Saturday morning, and that she appeared at breakfast at the usual time and was there seen by persons.

On page ten, folios 28, 29, the plaintiff was asked these questions under objection and exception: Q. Had you in the meantime performed your part of the covenant of the contract?

A. Yes sir.

Q, Did. you perform all the duties called for in the contract on your part? A. Yes sir.

This was clearly error. It was for the jury to say from all the evidence whether such was the fact. Again at folio 93, p. 31, a witness was called for the defendant who testified as-follows:

Frank B. Murtha, a witness called on behalf of the defendant, being duly sworn, testified: _ .

My business is manager of the Windsor Theatre I have been a theatrical manager pretty near twenty years; the attendance of the full cast is absolutely necessary at the holding of a final rehearsal in order to prepare a company properly to present a piece, . and this where we may be rehearsing even the leading man only or the leading lady.

Q. And a piece could not be properly staged before the audience before such final rehearsal was held? A. I should not think so.

Q. Would you regard the failure of a member of the cast holding an important part or being in an important situation in the play to attend as material or immaterial ? •

Objected to; objection sustained; defendants except.

Q. Assuming that you were rehearsing a leading lady in her part, or rehearsing so as to perfect her in her part, that you were about to hold a final rehearsal and that one of the members of the troupe who was cast with her in an important situation failed to attend, would that failure be a material matter under the circumstances ?

Plaintiff’s counsel objects; objection sustained; defendants except.

This was error. Among the questions to be ascertained by the jury was: Did the plaintiff under her contract violate any rule.in regard to attending a rehearsal, and, if so, was such a violation or failure to attend material or immaterial to the proper production of the play.

At folio 100, p. 34, one Rosenquest was called as a witness for the. defendant, but his testimony was ruled out as cumulative.

Ro exception having been taken by the appellant he cannot obtain the benefit of such ruling even if it was erroneous. At folio 106, p. 36, defendants’ counsel said: I offer Mr. Murray to corroborate the evidence of Mr. Murtha; and upon the same points, excluded. Defendant excepts.

This offer was proper and the evidence should have been allowed. It was important as corroborating the expert testimony of Mr. Murtha upon the question as to whether the plaintiff's absence from the rehearsal, if she was not sick, was material or immaterial in the proper production of the plajq and thus whether or not there was a breach of the contract by the plaintiff which gave the defendant the right to discharge.

This was a proper question for the jury and was not cumulative, but corroborative.

For these reasons the judgment should be reversed and new trial granted, with costs to the appellant to abide the event.

Van Wyck and Fitzsimons, JJ., concur.  