
    Jesse L. Laskey Feature Play Co., Inc., Plaintiff, v. William Fox Vaudeville Co., et al., Defendants.
    (Supreme Court, New York Special Term,
    January, 1916.)
    Contracts — for personal service — termination of — breach of — injunctions — pleading.
    A stranger to a contract for personal services who induces the termination or other breach thereof is liable only when he has been guilty of unlawful means.
    S., who had never posed for motion pictures, contracted with plaintiff for her services in a proposed picture play to be ' staged and produced. by plaintiff, such services to cover a period of four weeks for which S-. was to receive a certain sum, and in consideration of such employment she agreed not to sign with a motion picture play for any other eon¡pany prior to the termination of said contract, but before that time arrived, upon defendant’s false representation that said contract was not binding upon her and that plaintiff was not preparing the necessary preliminaries for the production of any play which would employ the services of S., and that plaintiff did not intend to perform its agreement with her, S. was induced to agree to perform similar services for the defendant. Such representations rendered defendant as guilty of fraud as if force or coercion were used, and it appearing that the services of S. were so unique and exceptional as to make plaintiff’s remedy at law for a breach of the contract inadequate, it will be granted an injunction restraining defendant from producing any picture play in which S. appears, and from advertising that she will appear in any play of his.
    A complaint stating a cause of action at law but praying for equitable relief is good as against a demurrer.
    Motion for judgment.
    Wise & Lichtenstein (Nathan Burkan, of counsel), for plaintiff.
    Rogers & Rogers, for defendants.
   Hotchkiss, J.

Defendants demur to the complaint, and plaintiff moves for judgment. Briefly the facts are that plaintiff is a producer of motion picture plays. One Suratt is a popular actress of unusual and unique skill who, before contracting with plaintiff, had never posed for motion pictures. The privilege to be the first to exploit such an actress in motion pictures lends an additional value to the contract. In October, 1914, Suratt contracted with plaintiff for her services in a proposed motion picture play to be staged and produced by plaintiff, such services to cover a period of about four weeks, beginning on or about June 15,1915, for which she was to receive the lump sum of "$5,000, of which $500 was paid down. In consideration of her employment Suratt agreed “ not to sign for a motion picture with any other picture company prior to June 15,1916.” For the purpose of utilizing Suratt’s services plaintiff arranged to produce a play and incurred large expense in that behalf. In March, 1915, Suratt agreed with defendant to perform for it services similar to those contracted to be performed for plaintiff, which services were to begin in April, 1915. Suratt was induced to enter into this latter contract because defendant falsely represented to her that (1) plaintiff’s contract was void and not binding upon her; (2) that plaintiff was not preparing the necessary preliminaries for the production of any play which would employ Suratt’s services and that plaintiff did not intend to perform its agreement with her; (3) that such failure on plaintiff’s part to prepare released Suratt from her obligation to plaintiff. Subsequently Suratt proceeded to fulfill her contract with defendant, but, discovering the fraud which had been perpetrated upon her, she recognized her obligation to the plaintiff and is now engaged in performing her contract with it. Defendant is about to produce the play for which Suratt posed while performing her contract with defendant, all to plaintiff’s damage, etc. For relief plaintiff prays that (1) defendant be restrained from producing "any” picture play in which Suratt appears; (2) from advertising that Suratt “ will appear” in any play save plaintiff’s; (3) for accounting and general relief. Whether or not plaintiff’s demands for relief are not too broad is not necessary to determine. The question is whether the complaint states a cause of action. Whether the contract between Suratt and the plaintiff was or was not enforcible for want of mutuality is not a question which can be raised by this defendant. At most the contract was voidable, and so long as Suratt elected to recognize it as a binding obligation it is none of defendant’s business that she might have elected not to perform it. At least, until she made such an election voluntarily as distinguished from an election induced by illegal acts on defendant’s part, the question of mutuality is one defendant cannot raise. Rice v. Manley, 66 N. Y. 82. Even in the case of the class of servants covered by the Statute of Laborers, the decision in Lumley v. Gye, 2 El. & Bl. 246, has not been accepted in this state. De Jong v. Behrman Co., 148 App. Div. 37, 39; Rogers v. Evarts, 17 N. Y. Supp. 264, affd. sub nom. Reynolds v. Everett, 67 Hun, 294, 144 N. Y. 189. In this jurisdiction interference by a stranger with a contract of service by any class of employees gives rise only to such remedies as exist under like circumstances in the case of other contracts the parties to which have assumed mutual obligations. For inducing the termination or other breach of such a contract a third party is liable only when he has been guilty of unlawful means. De Jong v. Behrman Co., supra; Ashley v. Dixon, 48 N. Y. St. Rep. 430. Defendant contends that the only act for which a third party can be made responsible is such as arises where the defendant has induced the breach by physical violence, intimidation or threats amounting to coercion, and that the allegations of the complaint are insufficient. Whether the allegations that Suratt was induced to violate her contract with plaintiff because of defendant’s representation that the same was void and not binding I do. not determine. The further allegation that defendant represented that plaintiff was not making the necessary preparations to fulfill its contract and did not intend to fulfill the same is an allegation of material facts which, if false, constituted actual fraud. Although the question has commonly arisen in cases where the circumstances involved intimidation, threats or other coercion, the principle deducible from the authorities is that a stranger is not liable when he induces the breach of contract by argument and persuasion, because these—the motive being proper—are lawful means. But where the breach is induced by false representations of material facts or other fraud, the means are as unlawful as if force or coercion were used. Rice v. Manley, supra; Ashley v. Dixon, supra. The gist of the wrong lies in overpowering or circumventing the freedom of will and the intent of the one obligated to perform, as distinguished from procuring him by fair means to elect not to perform. The contract between plaintiff and Suratt gave the plaintiff the exclusive right to the services of Suratt until June 15, 1916. Ordinarily plaintiff’s remedy would be one at law for damages. But the remedy at law must in such cases be adequate, and it is upon this ground of inadequacy that equity assumes jurisdiction to enforce negative covenants in actions involving’ personal services—the inadequacy in such cases commonly consisting of the unique and peculiar character of the services to be rendered and the inability to substitute the services of others. In this case, the complaint shows that the services of Suratt were exceptional and unique. It would seem to follow that the photographic product of her services would be similarly unique. This fact, together with the other allegations, shows the existence of exceptional circumstances rendering plaintiff’s legal remedy inadequate. The foreg*oing treats the complaint as one for equitable relief only, but as against demurrer it is good if it states a cause of action at law. Tuomey v. Walsh, 160 App. Div. 795. That such a cause of action is stated is scarcely open to argument. Motion granted with ten dollars costs, and with leave to answer, etc.

Motion granted, with ten dollars costs.  