
    POLLACK v. SHUBERT THEATRICAL CO.
    
    (Supreme, Court, Appellate Division, First Department.
    October 20, 1911.)
    Master' and" Servant (§ 4$)'—Employment Contract—Construction.
    A. contract engaging plaintiff, to appear "in musical plays for a'definite season at “$260 weekly for each "and every week that he publicly appears and performs’’ makes it optional with the employer whether he will give actual employment, and a complaint on the contract by the employs for failing to furnish employment does not state a cause of action.
    [Ed. Note.—Eor other cases, see Master and Servant, Cent. Dig. § 62; Dec. Dig. § 48.]
    Appeal from Special Term, New York County.
    Action by Frank V. Pollack against the Shubert Theatrical Company. Order denying motion for judgment on the pleadings, and defendant appeals. Reversed, and motion granted.
    Argued before INGRAHAM, P. J., and McRAUGHLIN, LAUGHLIN, CLARKE, and MILLER, JJ.
    Max D. Steuer, for appellant.
    Walter Loewenthal, for respondent.
    
      
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   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:

‘■III. 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.
“IV. That the defendant, for and in consideration of such engagement, agreed and promised to pay for such services, and the plaintiff agreed to accept, two hundred and fifty dollars (S250) 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”; in other words, under the contract as pleaded, it was entirely optional with the defendant whether it would give the plaintiff actual employment or not, b,ut, if it did, it was to pay him the compensation agreed upon, and there are no allegations 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 $10 costs and disbursements, and the motion granted, with $10 costs, with leave to the plaintiff to serve an amended complaint on payment of such costs. All concur.  