
    Blanche Weaver, Resp’t, v. Marc Klaw and Abraham L. Erlanger, App’lts.
    
      (City Court of New York,
    
    
      General Term,
    
    
      Filed December 29, 1891.)
    
    1. Contract—Services—Satisfaction of employer.
    Where a person is to work for another or to perform services for another ■ so long as such work or services prove satisfactory to the employer, the. question of competency is not material.
    2. Same. •
    In an action by an actress for breach of contract of employment, the judge charged that if the jury found that the contract was that she was to give a satisfactory performance for the purpose of ascertaining whether they should enter into contract for a season, that if the jury find that she was not competent to fill the part assigned her and that defendants informed her of that fact, they would not be liable. Held, error; that the question of competency was not at issue.
    
      Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for a new trial.
    
      M. L. Erlanger, for app’lts; Howe & Eummell, for resp’t
   McCarthy, J.

This is an appeal from a judgment for $699.04 in favor of plaintiff entered on a verdict, and also from an order denying a motion for a new trial.

The action was brought to recover the sum of $1,500, on an alleged contract claimed to have been made October 12, 1889, whereby the defendants are alleged to have employed plaintiff as an actress in one of their companies for the period of twenty-three weeks at $50 per week to commence October 18, 1889. The answer is a general denial.

On the issues so raised the action was tried before Mr. Justice Van Wyck and a jury of six men. The plaintiff was her sole and only witness in support of her demand. She testified,. in substance, that she was employed on October 12th, for twenty-three weeks, at the rate of $50 per week. That she attended several rehearsals, and on Friday evening, October 18th, 1889, she-gave a, performance, immediately after which she was told her services were no longer wanted. The defendants, on their part, claimed that plaintiff having refused to sign a contract containing a two weeks clause, which reserved the right to either party to terminate the contract on two weeks notice, they declined to employ her; that she thereupon volunteered to give a trial performance. That she was told, if her trial performance was satisfactory, the subject of her engagement would be discussed later. That on October 18th she gave a performance which was unsatisfactory, and she was told that she was unfitted for the part Both defendants testified to that effect, as well as a third person who was present at the conversation, and who was in no manner interested in the result. The jury found for the plaintiff.

The appeal brings up for review the facts of the case, and raises various questions of law on the exceptions taken during the trial.

These exceptions are of five kinds:

(A) The one directed to the refusal of the court to direct a verdict for the defendants.

(B) Those to the admission of improper evidence.

(0) Those to the exclusion of proper evidence.

(D) Those to the charge of the court, and refusal to charge.

(E) The one directed to the refusal of the court to grant the motion for a new trial.

At the end of the trial the judge was requested by the defendants’attorney to charge the jury: “Second. If the jury shall find from the testimony that plaintiff undertook to give a satisfactory performance of the part which she played on the evening of the 18th of October, 1889, defendants could terminate employment at their pleasure without assigning any reason therefor."

“The Court: You mean for the purpose of entering into the contract ?"

“ Defendants’attorney: Yes.”

“ The Court: I so charge.”

The Court: I charge the jury that if they should find that the •contract made by Miss Weaver and the defendants was that she was to give a satisfactory performance for the purpose of ascertaining whether they should enter into a contract for her engagement for a season of twenty-three weeks at fifty dollars per week, that if the jury find she was not competent to fill the part assigned her, and that they informed her of that fact, they would not be "liable.

“ Defendants’ attorney: I except to that part of your charge in which you used the word 1 competent,’ and I ask you to charge in the language of my second request

“ The Court: I charge as modified.

“Defendants’ attorney: I except."

This modification of the second request was error. The •question of incompetency was not at issue.

Where a person is to work for another, or to perform services for another, so long as such work or services proves satisfactory to the employer, the question of competency is not material.

If her or his work is not satisfactory to the employer, and particularly when it is a matter of taste, fancy or judgment, he may at any time discharge him without subjecting himself to further claim. Johnson v. Bindseil, 31 St. Rep., 280.

Where one party agrees to do a thing to the satisfaction of the other, and the excellence of the work is a matter of taste, such for instance as a portrait, bust, suit of clothes, dramatic play, the employer may reject it without assigning any reason for his dissatisfaction. Gray v. Alabama National Bank, 30 St. Rep., 824; Glenny v. Lacy, 16 St. Rep., 798, 800; Peverly v. Poole, 19 Abb. N. C., 271.

The defendant was entitled to have this question properly submitted to the jury.

Without passing upon any of the other questions involved, we think this was sufficient error and for which the judgment should be reversed and new trial granted, with costs to the appellant to -abide the event.

Ehrlich, Oh. J., and Eitzsimons, J., concur.  