
    Arena Athletic Club, Appellant, v. William L. McPartland (sued as “ Kid ” McPartland) and Jack Everhart, Respondents.
    
      Breach of a contract to give an exhibition on a specified day or a day to which it “maybe mutually postponed"—equity will not, after the specified day, enjoin the exhibitors from giving exhibitions at other places, until the contract is performed— damages not awarded by a court of equity in a suit of which it has not equitable jurisdiction.
    
    Two professional boxers entered into a contract with an athletic club to give an exhibition at its club house on March 39,1897, “ or upon such day or days and-hour to which such exhibition, for any cause, may be mutually postponed,” it being agreed between the parties that the boxers should not give an exhibition at any other place until after the contract with the club had been fulfilled. They failed to appear on the day named, and were advertised to appear on the next day before a rival club.
    In an action brought by the first-mentioned club to restrain the boxers from giving a public exhibition until they had performed the contract, and for damages, it was ■ -
    
      Held, that as the time of the performance of the contract, after the date set, depended upon the mutual agreement of the parties, the court would not grant an injunction, as to do so would enable the plaintiff, by refusing to agree upon the time when the exhibition should be given, to deprive the defendants indefinitely of their right to employ their talents in gaining a livelihood; ^
    That as the court had no equitable j urisdiction in the matter, it was not authorized to retain the case for the purpose of awarding damages.
    
      Semble, that the court might have restrained the defendants from giving exhibitions at any other place than the plaintiff’s club house before March 39, 1897.
    Appeal by the plaintiff, the Arena Athletic Club, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 10th day of June, 1898, upon the decision of the court rendered at a trial at the New York Special Term, dismissing the complaint at the beginning of the trial, upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    This appeal was transferred from the first department to the second department.
    The action was brought to restrain the defendants from giving public sparring exhibitions until they had performed the contract referred to in the following opinion, and to recover $5,000 damages.
    
      
      M. G. Holstein, for the appellant.
    
      Louis J. Vorhaus [A. H. Parkhurst with him on the brief], for the respondents.
   Woodward, J.:

The plaintiff in this action is an athletic club, and on or about the 12th day of March, 1897, it entered into a contract with the defendants, who are professional boxers, to give an exhibition of sparring at the club house on the 29tli day of March, 1897, “ or upon such day or days and hour to which such exhibition, for any cause, may be mutually postponed.” It was agreed between the parties that the defendants should not give an exhibition at any other place until after the contract with the plaintiff had been fulfilled. On the twenty-ninth day of March, the defendants, for some reason, did not appear at the time and place mentioned in the contract, and on the thirtieth day of March they were advertised to appear in a rival club house. On that date this action was commenced, and upon the trial the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action entitling the plaintiff to an injunction or other e"quitable relief against the defendants. In this conclusion we are satisfied that the trial court is right. The contract was to give an exhibition on the 29th day of March, 1897. If at that time the exhibition should for any reason be postponed by mutual agreement, the defendants were to perform at some other time; but it must be clear that this is all too uncertain to justify a court of equity in applying the harsh remedy of injunction. The terms of the contract called for a mutual agreement; and for this court to enjoin the defendants from performing at any other place until the plaintiff should agree with them as to the time of performing the contract, would leave it in the power of the plaintiff to seriously embarrass the defendants, and to deprive them of their natural rights of employing their talents in gaining a livelihood. The court has no authority to make a contract for these parties, and it would be an abuse of its equitable jurisdiction to place in the hands of the plaintiff a power to indefinitely suspend the earning capacity of the defendants.

There is no doubt that this court might have restrained the defendants from, performing at any other place prior to the twenty-ninth day of March, bnt after that time the contract was too indefinite; it then depended for its force upon a mutual agreement between the parties, and it does not appear from the pleadings that there was any such mutual agreement, and without some fixed and definite time, this court cannot interfere. To do so would be to to make a contract for these parties to which they have not agreed, and it was never the purpose of equity to make contracts, but to aid in the enforcement of those of perfect obligation.

It is urged, however, that even if the plaintiff was not entitled to equitable relief, the court owed it the duty of determining the amount of damages which may have been sustained by reason of the breach of the contract. While it is true that a court of equity, having gained jurisdiction of a cause, will generally retain it for the purpose of disposing of the entire controversy, we find no authorities which make it the duty of a court to retain a cause for the exclusive purpose of determining damages, where it clearly appears that the plaintiff is not entitled to the equitable relief demanded. The defendants set up in their answer that the plaintiff had a complete remedy at law, thus bringing them within the rule laid down in Town of Mentz v. Cook (108 N. Y. 504), and if there were not sufficient facts alleged in the complaint to give the court jurisdiction in equity then there could be no authority for retaining the case to determine the amount of the damages which the plaintiff may have sustained. The rule is that if a court of equity has jurisdiction and entertains the case, it will ordinarily retain it until the whole subject is disposed of. (Taylor v. Taylor, 43 N. Y. 578, 584; Ostrander v. Weber, 114 id. 95, 102.) In the case at bar the court determined that it had no jurisdiction in equity, and refused to entertain it. Its incidental power of fixing the plaintiff’s damages depended upon its having jurisdiction in equity, and as this issue was raised by the pleadings, the court properly dismissed the complaint.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  