
    The Ben B. Hampton Company, Appellant, v. Maurice F. Schlesinger, Respondent.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Advertising contracts — Short rates.
    Independent contractors — Who are independent contractors — Advertising agent.
    Where an advertising agent contracts with an advertiser for the sale to him of newspaper advertising space and afterward settles with him and is paid for the space used, and where the newspaper publisher recovers a judgment against the advertising agent for short rates during the period such advertisement was • published, in consequence of the terms of the contract for such space between the publisher and the agent, to which the advertiser was not a party, the agent may not recover from the advertiser the excess which it was compelled to pay the publisher under its contract with such publisher.
    Appeal by the plaintiff from a judgment in favor of the defendant, rendered in the Municipal Court of the city of Hew York, fourth district, borough of Manhattan.
    T. H. McKee, for appellant.
    W. L. Bunnell, for respondent.
   Davis, J.

The defendant is a druggist and an extensive advertiser. The plaintiff is a general advertising agent. In October, 1902, plaintiff and' defendant made a verbal contract, under which the plaintiff was to buy advertising space and sell it to the defendant and, furthermore, to take entire charge of defendant’s advertising. In December, 1902, the plaintiff, in order to carry out its agreement with the defendant, entered into a contract with the Springfield Union, under which it bought certain advertising space to be used for the defendant’s advertisements. The defendant was not a party to this latter agreement and incurred nv obligation thereunder, either to the Springfield Union or to the plaintiff. This contract provided for the payment to the newspaper of what is known as-a “short rate” in case the whole amount of space was not used by the other party to the contract. A short rate is an increased rate for the space actually used and is to bo paid in case of failure to use the whole space contracted for. In the case at bar the contract between the Spring-field Union and the plaintiff' provided for 156 insertions of the defendant’s advertisement, occupying two inches, or more of space. Failing to use that amount of space, the plaintiff, not the defendant, was to pay the increased or “short rate.” The plaintiff and defendant severed business relations February 17, 1904. On that date the defendant Schlesinger went to plaintiff’s office and went over all matters in difference between the plaintiff and defendant, the plaintiff being represented by Hr. Lorenso. They came to an agreement as to what sum was due from defendant to plaintiff down to January 1, 1904, and the defendant gave the plaintiff a check for $1,099.10 in full to January 1, 1904. At this time defendant’s advertisement had appeared fifty-seven times in the Springfield Union, and there was no further insertion in that paper. There being thus a failure to use the whole space contracted for under the agreement between the newspaper and the plaintiff the newspaper had a claim against this plaintiff for a short rate or an increased rate on the fifty-seven insertions referred to. This claim, amounting to $170.35, was' subsequently collected by the newspaper from the plaintiff by suit. In the case at bar the plaintiff sought to recover this amount of $170.35, together with its commissions thereof from the defendant, but judgment was rendered against it in favor of the defendant. We think this judgment should not be disturbed. It appears that, subsequently to the making of the oral agreement and on or about November, 1903, the parties herein entered into a written agreement which embodied substantially the details of their oral agreement. In neither of these agreements as proved does it appear that the defendant was to pay short rates; and, moreover, when the parties had their settlement on February 17, 1904, nothing was said about charging the defendant with short rates, although at that time the plaintiff knew that it would have to settle with the Springfield Union upon the basis of short rates for the defendant’s space. Again, when the defendant settled with 'the plaintiff for advertising done between January 1, 1904, and February 17, 1904, by giving it a check for $511.90, nothing was said by the plaintiff as to collecting a short rate from the defendant, nor were short rates included in either of these settlements. From all the evidence in the case we think there is nothing to justify the plaintiff’s claim against the defendant for the short rates paid by plaintiff to the newspaper.

The judgment and order appealed from should be affirmed, with costs.

Gildebsleeve and Clinch, JJ., concur.

Judgment and order affirmed, with costs.  