
    (69 Hun, 337.)
    MINER v. DALY.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    False Representations—Evidence—Dismissal oe Complaint.
    In an action for alleged false representations by defendant that he was the owner of the sole right to produce a certain play in America, which right defendant had sold to plaintiff, it was not shown that defendant knew the alleged representations to be false, nor was any evidence introduced that defendant was not the owner of such sole right, except that others produced a similar play of the same name, nor was there any evidence of damage beyond proof of payment of the purchase price. Held, that the complaint was properly dismissed for failure to prove a cause of action.
    Appeal from circuit court, New York county.
    Action by Henry C. Miner against Augustin Daly. From a judgment dismissing the complaint on the merits, entered on the decision of the court, plaintiff appeals.
    Affirmed.
    Argued before VAH BRUHT, P. J., and FOLLETT and BARRETT, JJ.
    Howe & Hummel, (A. H. Hummel, of counsel,) for appellant.
    Olin, Rives & Montgomery, (Stephen H. Olin, of counsel,) for respondent.
   FOLLETT, J.

In the autumn of 1888 the plaintiff was in Paris, France, where he saw a play acted at the City Theater and at the Ambergu Theater, known as “Roger La Honte.” He called on Mr. Chizzola, the manager of the Ambergu Theater, and asked if he could purchase the right to produce the play in America. Mr. Chizzola told him that he had sold the right to the defendant. Afterwards the plaintiff entered into negotiations with Mr. Dorney, Mr. Daly’s manager, who told the plaintiff that Mr. Daly had purchased the play of Mr. Chizzola, and had the sole right to produce it in this country. On the 5th of February, 1889, the parties to this action entered into a written contract, in which it was recited:

“Whereas, the said Daly has the sole right to produce in the United States and Canada a certain play entitled ‘Roger La Honte:’ * * * Now, this agreement witnesseth that, in consideration of the sum of five thousand dollars paid by the said Miner to the said Daly, the receipt whereof is hereby acknowledged, and of the covenants hereinafter contained on the part of the said Miner to be performed, the said Daly hereby agrees to sell, and by these presents does sell, assign, and set over, unto the said Miner, all the right, title, and interest of the said Daly in and to the said play ‘Roger La Honte,’ together with the exclusive right to produce the same, but only for one year, commencing on the 11th day of November, 1889.”

The plaintiff expended moneys (the amount was not shown) in preparing to produce the play, which was acted by his troupe in various cities of the United States. While it was so being acted by the plaintiff’s company, a similar play, bearing the same name, was also acted in various cities of the United States. The plaintiff called on the defendant to protect the right which he had purchased. This the defendant declined to do, placing his refusal on the ground of want of power. The plaintiff did not rescind the contract and sue for the return of the consideration paid and damages, but continued to produce the play, and afterwards brought this action to recover damages on the ground that the defendant falsely and fraudulently, and with intent to deceive the plaintiff, represented that he had the sole right to produce the play in the United States and Canada. It is also alleged in the complaint that Daly had not this right. On the trial the plaintiff testified that the alleged representations were made by the defendant’s business manager, but did not show that they were known to be false by the defendant or by his manager. The plaintiff failed to show that the defendant did not have the exclusive right to produce the play in this country, but rested his case on showing that others produced a similar play. Whether they had a right to produce it, or were mere violators of the plaintiff’s right, was not shown. Ho evidence of any damages was given, beyond proof of the payment of the purchase price. How much the plaintiff lost, if anything, by his purchase, or by the production of a similar play by others, was neither shown nor attempted to be shown. Under this state of the evidence it is clear that no cause of action was established, and that the court did not err in dismissing the complaint.

The judgment should be affirmed, with costs. All concur.  