
    John E. Ince et al., Respondents, v. Louis Weber et al., Appellants.
    (Supreme Court, Appellate Term,
    October, 1896.)
    Evidence — Custom.
    Where an actor sues for his wrongful discharge, and the defendants’ claiming that a theatrical contract is terminable upon two weeks notice from either party," asks the plaintiff, upon cross-examination, what meaning, in theatrical circles, the expression “ subject to all rules and regulations of the company ” had when used in such con-, tracts, and the court .excludes the answer, but the witness subsequently testifies that there is no custom with respect to notice being given or received under such a contract, the exclusion of the evidence is not erroneous, because it is clear that the answer of ’the plaintiff would not have assisted the defendants.
    Appeal by the defendants from the judgment of the justice of the Ninth District Court in favor of the plaintiffs for damages for .a wrongful discharge under an employment as a member of a theatrical company. The contract was as follows: “ New York, January 14, 1896. Mr. and Mrs. John E. Ince. We hereby engage you to join our “ Trolley Party Company ” for a season of nine weeks, or longer, commencing on or about March 1st, at a salary of $77.75 weekly, railroad fares and transportation and baggage. We also agree to pay yoyr fares from New York to starting point. This engagement to be subject to all rules and regulations of the company. It is also understood that you will rehearse one week prior ■ to your opening, without any claim for salary for the same. Yorirs truly, Weber & Field. Accepted by Weber & Field.”
    Charles L. Hoffman and Samuel Hoffman, for appellants.
    James F. Milliken, for respondents.
   Daly, P. J.

The judgment was for a sum equal to one week’s salary, on the ground that plaintiffs were discharged without right, before the termination of the agreement; and the question of#fact in the case was, whether they received two weeks’ notice of the termination of the contract, under an alleged custom in the theatrical business, that engagements should be terminated upon such notice. ¡

The judgment is attacked for alleged errors of the trial justice iu the admission and exclusion of evidence; but we find none which calls for reversal. The objection to the contents of the posted notice or paper styled the Theatrical Call ” was not specific; any error in disallowing the question put to the plaintiff, John E. Ince, upon cross-examination, as to what, in his experience, was the meaning of the theatrical expression, “ subject to rules and regulations ” when used in contracts of employment, was cured when he was allowed afterward to. answer the question. The appellants claim that he should have been allowed to have an answer in order to show that the phrase signified that the contract was terminable upon two weeks’ notice from either party. That he was not prejudiced by the temporary exclusion of the evidence is clear, because after a few intervening questions, the question was asked: “ You testify here, as I understand you, that there is no custom with respect to. notice being given or received under this contract; is that so? ” To which the witness replied: “ Yes.” The appellants would have been in no better position had this question, as first asked, been allowed. As to whether the judgment was against the weight of evidence, we fail to see in the record sufficient reasons for ordering a new trial upon the facts.

It was on Saturday night, May 2d, while the company was playing in Philadelphia, that the defendants notified them that the season was to close then and there. Plaintiffs had then been playing ■ eight weeks, and one week remained of the contract. Mrs. Ince testified that she had not received any previous notice of the close of the season, but, inasmuch as she admitted that the week before she had written to try and secure other employment, it is argued that she must then have had such notice. The inference would be plausible if it were not for the fact that the contract of nine weeks had then but a week and some days to run; and that her writing at that time is consistent with an effort to get employment after the nine weeks, and was without reference to an earlier termination of the contract.

Judgment affirmed, with costs..

McAdam and Bischoff, JJ., concur.

Judgment affirmed, with costs.  