
    Theodora de Gellert, Resp’t, v. John F. Poole et al., App’lts.
    
      (City Court of New York, General Term,
    
    
      Filed November 23, 1888.)
    
    Notice—To terminate contract relations—When it must be personally SERVED.
    The defendants agreed with the plaintiff that she should perform services as a ballet dancer during the run of a play, or for the season, at a fixed weekly compensation, stipulating that they should have the right to determine when the season should begin and terminate, which they might do upon two weeks notice to the plaintiff. Neld, that there being no agreement for a different mode of service of notice, the object being to terminate the plaintiff’s rights under the contract, it should be made, personally.
    
      Appeal from judgment rendered by the jury in favor of the plaintiff.
    
      A. J. Dittenhoefer, for app’lts; Jeroloman & Arrowsmith, for resp’t.
   Per Curiam.

The defendants, who are theatrical managers, by contract, dated May 5, 1884, employed the plaintiff as an artist, in the character of the star of the ballet, during the run of the “Seven Ravens.” Services under the contract, were to commence August 18, 1884, and were to be continued during the run of the play, unless sooner terminated by the notice hereinafter mentioned. The salary was to be $125 per week, when the services were rendered in the city of New York, and $150 when rendered outside of the city, together with railroad fares and transportation of her baggage. The action is for services from December 8, 1884, till January 17, 1885, aggregating $900, less $134, paid on account thereof, leaving $766 due, and for this amount the jury awarded the plaintiff a verdict.

The defendants claimed that the season terminated at Niblo’s Garden, November 8, 1884, and that they have not since produced the play, and are not responsible to the plaintiff for services rendered after that time. The contract required the plaintiff to perform services, not only at Niblo’s Garden, New York, but at such theatres, opera houses and halls throughout the United States and Canada as might be required.

After closing at Niblo’s on the 8th of November, 1884, the defendants’ company, with their scenery and wardrobe went on the road, November 16, 1884, and the plaintiff remained with the company until January 17, 1885, having received her pay in full till December 8, 1884, a month after the play closed at Niblo’s and $134 on account of her salary thereafter.

The company was put upon the road, under a contract made by the defendants with one Mendum, but the plaintiff had no knowledge of this contract, for she telegraphed on to the defendants for her salary, and demanded from them, the balance due her, upon her return. She testified that she asked Mr. Gilmore, if he or Mr. Poole were going on the road with the play, and that Gilmore said he never went on the road, but sent a responsible manager with the company.

The contract provides that two weeks’ notice shall be given, of the opening and closing of the season. The provision is in these words: “It is further agreed, between the parties hereto, that said parties of the first part shall have the lawful right to determine when the season mentioned herein, shall begin and terminate, and in order to begin or close said season, said parties of the first part shall give two weeks’ notice in advance of such commencement or termination, and should the said parties of the first part, give such two weeks’^ notice to the said party of the second part, of the termination of said season, then such notice, after the expiration of sa'id two weeks, shall have the effect of dissolving said agreement, and freeing the parties hereto from the obligations contained herein.”

The question to be determined, is whether, under this provision, the notice required to terminate the plaintiff’s engagement, should have been brought home to her, or whether posting it on the door of the greenroom, according to what the defendants call their custom, was sufficient, without being called to the plaintiff’s attention. We think the notice should have been brought home to her, in some form. She swears that she never saw the notice posted up and never heard of it. The sufficiency of notice, whenever it is required, must, in the nature of things, depend much upon the circumstances of each case. Where personal notice is difficult or impossible, the law is sometimes satisfied if the next best mode of communicating it is adopted, for as was said by the court of appeals in Vatable v. N. Y., L. E. and W. R. R. Co. (96 N Y., 62), “Where a contract requires a notice to be given, without expressing what kind of notice, then the provision as to notice must be construed like any other provision of the contract, so as to effectuate the intention of the parties.”

The contract is silent, as to the mode of communicating notice, and it is not going too far to hold that the parties contemplated a personal notice, such as is usually given by an employer on discharging an employee.

In Wachtel v. Noah Widows, etc. (60 How. Pr. 424), the court of appeals hold, that in the absence of any agreement for a different mode of service, it should be made personally, as reqniredby common law, when the object is to deprive a party of his rights or property.

The notice required in the present case, was intended to terminate the plaintiff’s rights under her contract, and should have been given in a form that brought the facts to her attention. We think the word notice was not used in a special or limited sense, and that the parties intended that their contract in respect thereto should be interpreted by the legal force of the language used, rather than by custom.

The answer alleges, that notice was duly and regularly given, which inferentially means personal notice. Custom is not pleaded, nor are the regulations of the defendant’s theatre pleaded, nor is any excuse, for not giving personal notice, stated. Notifying a lady of confessed talent, that she is discharged, by posting the fact in the green-room, would hardly be an agreeable form of notification to an artist of ordinary feelings, nor do we believe that the plaintiff ever contemplated that such a form of notice should be given to her under the contract. It would be unreasonable to expect every chorister or member of the ballot to be daily scanning the walls of the green-room, for notices of their discharge, when the more agreeable and easy method of personal communication was at all times present.

The. plaintiff was a member of the defendant’s company under their constant command and direction, and personal notice was so easy of communication, that we are satisfied, that both parties contemplated it.

Under our construction of the contract, the notice not having been brought home to the plaintiff, was insufficient to effect her discharge from employment under the contract; hence there is no error in the charge of the trial judge, of which the defendants can legally complain.

True, the plaintiff knew that the season at Niblo’s closed November 8, 1881; but when the defendant’s company went on the road, she had the right to assume, that under her contract she was obliged to follow it, in the absence of the two weeks’ notice to the contrary, Even if the plaintiff had seen the notice, the defendants claim to have posted up, she might well have entertained and acted on this belief. If the defendants had intended to substitute Mendum, as the plaintiff’s future paymaster, she ought to have been informed of the fact. We emphasize this feature of the case.

We have examined all the exceptions taken, and they are without merit.

The telegram testified about at fols. 27 to 29, was sent to the defendants, it was presumably in their possession, and they ought to have produced it under the notice requiring its production, and not having produced it, secondary evidence of its contents was properly received.

Upon the entire case, we think the judgment ought to be affirmed with costs.

Me Ad am, Ch. J., McGown and Pitshke, JJ., concur.  