
    Oscar Hammerstein, Respondent, v. Marguerite Mann, Sued Herein as Marguerite Sylva, Appellant.
    First Department,
    April 8, 1910.
    Injunction — contract to sing in opera —breach by singing for' Other persons — injunction denied.
    An opera-singer whose contract entitles her to $200 a week fpr services for which her managef-is accustomed to pay from $1,000'to $2,000 tq-other singers for a single performance,- will not he enjoined from singing for other persons in violation of her promise not to dp so, although the contract states that she acknowledges her vopal abilities to be unique-so, as. to give to-the-manager the right to obtain an injunction in case she attempts'to break the agreement. This, because in spite of the admission in the contract, the singer’s qualifications are not shown to be unique or extraordinary, which alone justifies an injunction. -
    Appeal- by the defendant, Marguerite Mann, from an ordér of the Supreme Court, made at' the Hew York Special Term and entered in the office of the clerk of the county of -Hew York on the 8th day of March, 1910, granting the plaintiff’s motion for an -. injunction pendente lite.
    
      
      Nathan Biw'Jean, for the appellant.
    
      I. M. Dittenhoefer of counsel [Dudley F. Phelps with him on the brief],' Dittenhoefer, Gerber & James, attorneys, for the respondent.
   Clarke, J.:

The plaintiff is an operatic impressario; the defendant a singer. They entered into a contract for the season of 1909-1910, beginning Monday, August 30, 1909, for thirty-one weeks, by the terms whereof the defendant was to receive a salary of - $200 a week for eleven weeks and $250 for twenty weeks. ■ She agreed to sing no less than fourteen times a month in her operatic and in such leading roles as might be given to her by plaintiff, in Italian or French, and which were within the compass and range' of her voice, and her repertoire was expressed to be Carmen, Faust, Cavaljeria, Pagliacci, etc. She agreed not to sing under any other management and not to sing without plaintiff’s permission “in, any.concert or churches or benefits or charities or phonographs.” She gave to plaintiff the right to renew the contract'for the seasons of 1910-1911 and 1911-1912 at a specified salary, notice of such desired renewal to be given by plaintiff six weeks before the expiration of each .season. The contract also contained the . following clause, “ Marguerite Sylva, acknowledging her vocal and dramatic abilities to be unique gives Oscar Hammerstein the right to obtain legal injunction in case she attempts to break or breaks tins agreement.”

The complaint alleges that the plaintiff has performed all the conditions of the contract on his part to be performed,'and that the defendant rendered services under' said contract until the 21st ■ of November, 1909,. when, without just cause or provocation, and • without any warning to the plaintiff, tlié defendant abandoned and deserted her said contract and refused and neglected, and still réfuses to render services for the plaintiff herein, and asked judgment that defendant be enjoined and restrained from rendering services to or for any other person, company or corporation, or from singing or performing until the expiration of the term mentioned in the contract.

Notwithstanding the fact that in the contract defendant acknowledged her vocal and dramatic abilities to be unique, and gave the right to the plaintiff to obtain legal injunction in case she attempted to break or broke the contract, she now avers in her answering affidavit, “ I deny that my services are special, unique and extraordinary and that I cannot be replaced, and that he cannot secure any other artist of like ability to fill my place in his company.” She then enumerates the roles in which she had appeared under the plaintiff’s, management and the names of numerous artists who had sung the same parts during this season in the same company and avers that the above-mentioned artists sang the defendant’s roles with great satisfaction, and that each of them was in the employ of the plaintiff during the time of the defendant’s employment and thoroughly familiar with and competent to sing said roles; and she enumerates the amounts paid to said artists, said payments ranging from. $1,000 to $2,000 for single performances, while, as shown, defendant’s contract was for $200 a week for the first eleven weeks and for $250 a week thereafter.

Without passing-upon other questions raised upon this appeal, we are satisfied that the order should be reversed, because the services of the defendant are not shown to be of that unique and extraordinary quality which alone justifies an injunction jpendente lite. This court, in Dockstader v. Reed (121 App. Div. 846), had under consideration a contract which contained similar clauses. to that at bar. We said: “This confession and defendant’s own estimate of himself is the only proof in the case that his services were unique, and-that he could not be replaced; * * * Notwithstanding the agreement ox the defendant, we think the facts did not warrant the granting of an injunction. Parties to an agreement cannot contract that courts will exercise their functions against or in favor of themselves. Whether or not a court will so exercise its powers is for the court itself to determine. * * * Whether equity will intervene to restrain by injunction the violation of a restrictive covenant in relation to "personal services depends in large measure upon whether a substitute for the employee can readily be obtained, and whether such substitute will substantially answer the purpose of the contract. * * * The salary agreed to be paid defendant was quite moderate, and indicates that his part was quite ordinary, and manifestly could be easily filled.”

That language is apposite here. The cases relied upon by the respondent are clearly distinguishable. In Edwardes v. Fitzgerald (New York Law Journal, January 16, 1895) the court said: “ She has a charm peculiar to herself. By her grace, beauty and artistic methods she has become a special attraction. The plaintiff would undoubtedly find it difficult to procure a substitute who would be likely to produce a similar impression upon the public.”

In Shubert v. Angeles (80 App. Div. 625) the court said : “ She was employed because of her special talent as a mimic or imitator of other actresses and of actors.” In Ziegfeld v. Norworth (134 App. Div. 951) it appeared that the defendant was the real star around whom the whole production of the plaintiff’s play centered and that she had been heavily featured in announcements and advertisements so as to givé her chief prominence.

There .is nothing in the papers at all corresponding to the facts shown in the foregoing cases. The defendant has not been featured; she is not the central figure upon whom the whole action of the play depends of any one production prepared at great expense ;. she is but a singer of stock parts, at a moderate salary, which parts many other members of the company have sung.

For these reasons the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. '

Ingkaham, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  