
    Frank V. Pollock, Respondent, v. The Shubert Theatrical Company, Appellant.
    First Department,
    October 20, 1911.
    Pleading — action for breach of contract employing actor — complaint not stating cause of action.
    A complaint in an action for breach, of contract which, merely alleges that the defendant employed the plaintiff as an actor and agreed tó pay him a certain sum weekly “for each and every week that the plaintiff publicly appeared and performed ” does not state a cause of action. This, because under the contract as alleged it was optional with the defendant whether it would give the plaintiff actual employment or not, and there is no. allegation showing that the plaintiff has not been fully paid for such time as he actually performed.
    Appeal by the defendant, The Shubert Theatrical Company, from 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 19th day of June, 1911.
    
      Max D. Steuer, for the appellant.
    
      Walter Loewenthal, for the respondent.
   McLaughlin, J.:

This appeal is from an order denying a- motion for judgment on the pleadings. I am of the opinion that the complaint does not state a cause of action and for that reason the motion should have been granted.

The action is brought to recover damages for the breach of a written contract of employment. The complaint alleges:

“HI. That heretofore and on or about the 3d day of August, 1909, the plaintiff made and entered into a contract or agreement in writing with the defendant, wherein and whereby the defendant engaged the plaintiff to appear in musical plays for the theatrical season of 1909-1910, beginning on or about the 1st day of September, 1909, and. terminating on or about the 1st day of June, 1910.
u LV*. That-the defendant, for and in consideration of such engagement, agreed and promised to pay to the plaintiff for such services, and the plaintiff agreed to accept Two Hundred and Fifty Dollars ($250) weekly for each and every week that the plaintiff publicly appeared and performed.”

Then follow allegations to the effect that the plaintiff duly entered upon the performance of the contract and performed such services as were required of him, until the 30th of October, 1909; that thereafter he was ready, able and willing to publicly appear and held himself in readiness and offered to perform said contract on his part to be performed, but that the defendant, without cause or reason therefor, failed to furnish musical plays in which plaintiff might publicly appear and perform under the contract and refused to accept his services; that by reason of that fact the plaintiff was entitled to recover from the defendant the sum of $250 per week from the 30th of October, 1909, to the 15th of February, 1910, when the plaintiff refused to further render any service because of the defendant’s failure to- pay him the amount then due; and that by reason of defendant’s failure to perform, plaintiff had been damaged in the sum of $3,750, for which judgment was demanded.'

From the facts alleged it appears that the defendant engaged the plaintiff to appear in musical plays for the season stated and agreed to pay him $250 weekly for each and every week that he publicly appeared and performed. There is no allegation, or any facts pleaded from which such allegation can be inferred, to the effect that the defendant bound itself to give the plaintiff employment or permit him to appear or publicly perform for any specified time. It simply agreed it would pay him for such time as he “ publicly appeared and performed; ” iñ other words, under the contract as. pleaded, it- was entirely optional with the defendant whether it would give the plaintiff actual employment or not, but if it did, it was to pay him the compensation agreed upon, and there are no allegation in the complaint to the effect that the plaintiff has not been fully paid for each and every week that he did appear and publicly perform. This being so, it seems to me a cause of action is not alleged.

It follows that the order appealed from must be reversed, with ten dollars costs and. disbursements, and the motion granted, with ten dollars costs, with leave to the plaintiff to serve an amended complaint on payment of such costs.

Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted,' with ten dollars costs, with leave to plaintiff to amend complaint on payment of such costs.  