Opinion
March Term, 1896.
Benno Loewy, for the appellant.
A.H. Hummel, for the respondents.
We do not think that it can be said that there were any advertisements upon the curtain which would be generally considered objectionable under a fair interpretation of the language used in the contract. It may seem to some people that any advertisement placed upon the drop curtain in a first-class theater would be generally considered objectionable, but first-class theaters did expose such curtains both in this country and in Europe before this contract was made. The defendants had a right to make the contract and they did make it. The plaintiff expended $250 in preparing the curtain and $76.90 in hanging it, and paid defendants $600 for the first month's rent. Under these circumstances the defendants were under obligation to carry out the contract, and they should not be heard to allege as a reason for not carrying it out that any advertising curtain would be generally regarded as objectionable in a first-class theater. Giving the language used in the contract a fair construction, and such meaning as the parties evidently intended when they executed the contract, it cannot be said that any advertising matter upon the curtain was such as would generally be regarded as objectionable. The advertisements were, all of them, printed matter and illustrations, the same as had already repeatedly appeared in the daily newspapers and in theater programs in New York city, and no one ever regarded them as objectionable when so placed before the public. The objections made by the defendants to the advertising matter upon the curtain were mere pretenses, and furnished no excuse for refusing to carry out the contract by exposing the curtain as therein provided; nor was it a sufficient reason for refusing to expose the curtain as agreed that some of the spaces upon it were not filled with advertisements, and that there was upon the curtain a notice that persons desiring to advertise thereon should apply to the plaintiff's agent at a place designated. The undertaking was a new one and could not be expected to be in complete working order at first. Persons might well be unwilling to contract for advertising space until the curtain had been tried and exhibited a fair prospect of success. The contract itself recognized the fact that changes in the advertisements would become necessary by providing that proper opportunity should be afforded plaintiff to make changes in the advertisements from time to time as it became necessary.
We see no reason why the defendants, having entered into the contract, and thereby led the plaintiff to expend his money in preparing and hanging the curtain to the amount of $326.90, and having received from the plaintiff $600 more in payment of the first month's rent, should not have carried out their part of the contract by exposing the curtain as the contract provided they should do. The plaintiff has not only expended $926.90 in money as stated, but he has entered into advertising contracts with various parties for the violation of which he may be held liable for damages. We see no reason why he should not be protected by some adequate remedy against the violation of the contract by the defendants. He could maintain an action at law against them for damages, but they are apparently irresponsible so that any judgment he might recover would be uncollectible. And besides this, an action for damages would be entirely inadequate as a remedy because the actual damages could not be ascertained or decided even approximately. The only remedy at all adequate under the circumstances would be the remedy by injunction. The case in this view is within the rules laid down in Davis v. Zimmerman (91 Hun, 492); House v. Clemens (24 Abb. N.C. 381); Christie v. Shankey (12 N.Y. St. Repr. 657). We think an injunction should have been granted by the Special Term protecting the plaintiff under the contract so far as an injunction could do it, requiring the defendants, if they conducted the theater at all, to use the plaintiff's curtain and forbidding their use of any other curtain in the place it was provided by the contract this curtain should be used.
The order appealed from should be reversed, with costs of appeal, and the injunction order granted, with ten dollars costs of motion.
VAN BRUNT, P.J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.
Order reversed, with costs of appeal, and injunction order granted, with ten dollars costs of motion.