
    Brooklyn Majestic Theatre Company, Respondent, v. Vitagraph Company of America, Appellant.
    
      Contract — agreement for exhibition of moving picture — violation of provision that owner would not permit exhibition of picture in same city within stipulated time — action to recover liquidated damages — defense of mutual mistake.
    
    
      Brooklyn Majestic Theatre Co. v. Vitagraph Co. of America, 196 App. Div. 961, affirmed.
    (Submitted May 5, 1922;
    decided June 6, 1922.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 17, 1921, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. Plaintiff and defendant entered into a written contract for the exhibition. by plaintiff of a motion picture belonging to defendant, which contract contained the following provision: “ The party of the second part further agrees that without the written consent of the party of the first part he will not allow said .combination, star or any member of this company to play or to be advertised to play or perforin at any theatre in the said city of Brooklyn during the term herein contracted for, nor to allow said combination, star or any member of said company to play or perform, or to be advertised to play or perform at any theatre in said city within six weeks before or eight weeks after the period herein contracted for, to be played, except on agreement endorsed on this contract. In case the party of the second part violates this condition he hereby agrees to pay said parties of the first part as liquidated, stipulated and agreed damages, and in no wise as a penalty, the sum of three thousand dollars per week as partial damages. * * * ” Alleging that defendant had violated this provision by leasing said picture to be shown at other theatres within the prohibited time in the city of Brooklyn, plaintiff brought this action to recover the amount stipulated as liquidated damages. The defense was mutual mistake.
    
      William Marston Seabury for appellant.
    
      George Edwin Joseph and Leon Laski for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Hogan, Cardozo, Pound, McLaughlin and Crane, JJ. Dissenting: Andrews, J.  