
    Annie Hazzard, as Executrix, etc., Resp’t, v. Anna P. Hoxsie, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed July 9, 1889.)
    
    «Contract—Apportionment—When not proper.
    The action was brought on the following contract: “New York, September 23, 1886 I hereby agree to pay Edward J. Hazzard the sum of $8.50 •■ per week for publishing my advertisement in the Fifth Avenue, Union Square and Lyceum theatres for the theatre season—season 1886-1887. Anna P. Hoxsie.” The cause of action was for the pu« lication of the advertisement for the period commencing May 1, 1887, until the. end of the theatrical season of the theatres, respectively. The season of the Fifth Avenue ceased May 28, 1887, for which a certain allowance was made; the season of the Union Square July 9th, for which another allowance was made, and the season of the Lyceum July 16th, for which another allowance was made. Held, that the contract was an entirety and terminated upon the closing of the theatrical season of the Fifth avenue; that there could he no apportionment of the amount to he paid, and that a verdict should have been directed for the amount due on May 28, 1887.
    Appeal from, a judgment entered on the verdict of a jury directed by the court.
    
      Jas. Flynn, for app’lt; F. Solinger, for resp’t.
   Van Brunt, P. J.

This action is brought upon a contract of which the following is a copy:

$8.50 per week.
New York, Sept. 23, 1886.
I hereby agree to pay Edward J. Hazzard the sum of $8.50 per week for publishing my advertisement in the Fifth Avenue, Union Square and Lyceum theatres to occupy one inch on programme page for the theatre season. Season. 1886, 1887.
ANUA P. HOXSIE.”

The cause of action alleged was for the publication of the advertisement for the period commencing May 1, 1887, until the end of the theatrical season of the theatres respectively. The season of the Fifth Avenue theatre closed on the 28th of May, 1887, arid the plaintiff in the complaint made an allowance of $2.50 per week therefor, and the season of the Union Square theatre having ended on the 9th of July, another allowance of $2.50 was made, and the season of the Lyceum theatre ending on the 16th of July, only $3.00 was-charged and claimed for the last week.

In her answer the defendant denied each and every allegation in the complaint, and alleged that the theatrical season ended on the 1st of May, 1887, in support of which allegation no proof was offered.

It is clear that the contract in question was an entire contract, and there is no authority for an apportionment. Either it ended with the closing of the Fifth avenue theatre- or it continued in its entirety until the closing of the Lyceum theatre. The contract was performed until the closing of the Fifth Avenue theatre, on the 28th of May, 1887, and payment was made thereon up to the 1st of May, 1887. And the question arises as to whether any recovery can be had upon this contract subsequent to the 28th of May, the time of the closing of the Fifth Avenue theatre.

It is .clear from a reading of this contract that it was the intention of the parties that the defendant was to pay $8.50 for the publication of her advertisement in the programs of the three theatres, and when it became impossible for the plaintiff to comply with the provisions of the contract by publishing in the three programs, it seems be equally clear that the Contract terminated, as it evidently was not the intention of the parties that the defendant was to pay $8.50 a week for the publication in either one or two of these programs. The contract being an entirety, therefore, terminated upon the closing of the theatrical season of the Fifth Avenue theatre, because, subsequent to that time, as already stated, the plaintiff co'uld not comply with the contract to publish in the three programs. There is no ground upon which there could be any apportionment because we do not know which was considered the most valuable by the advertiser, nor whether she would have desired to have continued the advertisement in two of the three publications.

It seems, therefore, that the most favorable construction for the plaintiff which can be placed upon this contract is that it terminated on the 28th of May, 1887, when the Fifth Avenue theatre closed, and it became impossible longer to continue the performance of the contract by publication in the programs issued by the three, theatres mentioned in the contract.

It appears, therefore, that the learned court below took an erroneous view of the contract, and instead of directing a verdict for the amount which he did, should only have directed a verdict for $37.25, the amount due on the contract on the 28th of May, 1887.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Daniels and Brady, JJ., concur.  