
    Lew Dockstader, Respondent, v. Gus Reed, Appellant.
    First Department,
    November 22, 1907.
    Master and servant—contract employing'singer —injunction restraining employee from rendering other-services refused,.
    Although a contract employing a singer provides thatdi-is services are special, unique and extraordinary ” so that he cannot be replaced, and that on a breach of the contract the employer will suffer irreparable injury which cannot be ascertained in an action at law, and that an injunction may issue restraining the employee from rendering services to other persons, the court should not grant such injunction' pendente lite when the contract allows the employer .to discharge the employee without recourse and the recitals as to the services being extraordinary are not true and it is quite probable that another singer can he found to fill' the place. . ,
    Parties to an agreement cannot contract .that a court will exercise its discretion against or in favor of themselves. Whether dr not a court will so exercise its power is for the court to say.
    An application for equitable relief restraining an employee from serving another during the period of employment, is addressed to the sound discretion- of the court and will not he granted whore the -party seeking the relief is not spe cifjcally hound by the contract so that the obligations. are reciprocal and enforcible.
    Whether equity will grant an injunction in such cases depends in a large measure i upon whether a substitute for the employee can he readily obtained who will . substantially answer the purpose of the contract.
    
      Appeal by the defendant, Gus Reed, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of October, 1907, as enjoins the defendant during the pendency of the action from rendering any professional services as actor for any other person than the plaintiff.
    
      Charles Goldzier, for the appellant.
    
      Henry J. Goldsmith, for the respondent.
   Houghton, J.:

The plaintiff is the proprietor of a minstrel troupe and on the 19th day of March, 1907j the defendant contracted by written agreement ,with him at a stipulated salary per week, to sing and play until the end of the season of 1909.'

The defendant entered upon his employment and continued until September, 1907, when he abandoned his contract, claiming that his health was such that he could not continue singing and traveling about the country and parading the streets in inclement weather. The record contains an affidavit by his physician that to continue in such work and to expose himself to varying climate throughout the .country would greatly endanger defen dan t’.s health, which is not robust.

The part to which defendant was cast in plaintiff’s troupe was a bass singer in a quartet, rendering several songs during the performance.

The court granted an injunction during the pendency of the action, restraining the defendant from rendering any services to any other person than the plaintiff or giving any theatrical performance in public as an actor.

The contract which the defendant signed is the usual unique one which theatrical managers often demand from actors whom they emplojr, and in it the defendant confessed that the services which he was to render were “ special, unique and extraordinary,” and admitted that.he could not be replacedand agreed that in the event of its breach the plaintiff would suffer irreparable injury which could not be ascertained or estimated in an action at law, and consented that an injunction might be issued against him restraining him from rendering services for any other person.

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. , '

The contract gave the plaintiff'the right to discharge the defendant without recourse, if. Ins services were, unsatisfactory, and also ■the absolute right of discharge .without cause, upon two weeks’ notice, and it is quite improbable that a bass singer in a minstrel' quartet cannot be found to take defendant’s place. '

Notwithstanding the agreement of 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.

While equity will often restrain an actor - under contract to perform for one and not to perform for another, from performing for another during the period of the contract, an application’for equi-' table relief, is addressed to thq sound discretion of the court, and will not be granted where the party seeking relief is not specifically bound by the contract, so that the obligations are reciprocal and enforcible. (Lawrence v. Dixey, 119 App. Div. 295; 104 N. Y. Supp. 516.) "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, arid whether .such substitute will substantially answer the purpose of 'the contract. (Strobridge Lithographing Co. v. Crane, 12 N. Y. Supp. 898.) In Shubert v. Angeles (80 App. Div. 625) an- in junction was granted against an actress appearing for a rival house in violation of her contract, but it there appeared that she was engaged by the plaintiffs because of her special talent as a mimic of other actresses and' actors, and that her part could not be taken by another.

The salary agreed to be paid defendant was quite moderate, and, indicates -that his part was quite ordinary,-and, manifestly could be easily filled. It is undisputed that.he was ill arid that a, continuance under the contract with plaintiff would endanger his health and be likely to destroy his voice altogether:

The court below felt constrained to grant'tfie injunction because of the peculiar provision of the agreement. We are of opinion,. however, upon all the facts disclosed, that the plaintiff was not entitled to an injunction during the pendency of the action, and that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.'

Patterson, P. J., Ingraham, McLaughlin and Scott, JJ., concurred. ' ■

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