
    George Maxwell, as President of American Society of Composers, Authors and Publishers, Appellant, v. Faust Company, Inc., Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1915.)
    Contracts — construction of — when not relieved from obligation of agreement — custom of restaurants and hotels giving gratuitous musical performances.
    Where defendant, a restaurant keeper, agreed to pay plaintiff a certain sum monthly for the right of performance of certain musical compositions controlled by plaintiff, the fact that defendant gave no performance for profit, as it might have done under its contract, did not relieve it from the obligation of its agreement.
    There being no ambiguity in the contract, it will not be construed in the light of the custom of restaurants and hotels of giving gratuitous musical performances, so as to render it invalid under the Copyright Act of 1909, as licensing the right to perform the composition not for profit.
    Appeal by plaintiff from a judgment of the Municipal- Court of the city of New York, borough of Manhattan, ninth district, after a trial by a judge without a jury.
    Nathan Burkan, for appellant.
    Benjamin Shapiro (Harry Schulman, of counsel), for respondent.
   Bijur, J.

This appeal raises only a question of law. Defendant operates a restaurant. Plaintiff controls the right of performance of certain musical compositions. The plaintiff, by a written contract, granted defendant the license to perform any work in the repertory of the plaintiff for one year, October 1,1914, to 1915, on the premises No. 1823 Broadway. The licensee accepted the license, and agreed to pay the plaintiff the sum of ten dollars monthly. This action is brought to recover certain of the monthly installments.

The learned judge below found for defendant on the" authority of John Church Co. v. Hilliard Hotel Co.,221 Fed. Rep. 229. In that case the owner of the copyright applied for an injunction against the performance by an orchestra in a hotel of a certain musical composition. It was held that as the hotel proprietor charged no admission fee for the performance the latter was not a performance ‘ ‘ for profit ’ ’ as prescribed in the Copyright Act of 1909, section 1, subdivision E, and section 25; but that decision is quite irrelevant to plaintiff’s cause of action here. He is suing for the agreed compensation, payable monthly, for rights granted by him to defendant, and these rights, under the contract, include performances for profit as well as gratuitous performances. The mere fact that defendant has not chosen heretofore to give performances for profit does not relieve it from the obligation of its agreement.

Defendant urges that the contract should be construed in the light of what both parties must have known as to the custom of restaurants and hotels of giving gratuitous musical performances. But there is no ambiguity in the contract and no reason for its construction to mean other than what it says. But if there were, it seems to me that defendant, in urging that the contract is void for want of consideration because it grants to defendant only that which it already can enjoy under the law (namely, the right to perform these compositions not for profit), has itself suggested the need of construing the contract differently from what it claims. It is a familiar canon of construction tó "construe a contract, if it may consistently be done, to be effective rather than ineffective. Therefore if any construction were necessary, it would be to read it into the contract that defendant was licensed to give these performances for profit as well as gratuitously, since, if the latter alone were meant, the agreement would be void for want of consideration.

Judgment reversed, with costs, and judgment for plaintiff directed, with appropriate costs in the court below.

Guy and Page, JJ., concur.

Judgment reversed, with costs.  