APPEAL by the plaintiff, Florenz Ziegfeld, Jr., from an order of the Supreme Court, made at the New York Special
Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1911, as resettled by an order entered in said clerk's office on the 18th day of April, 1911.
David Gerber of counsel [Dittenhoefer, Gerber & James, attorneys], for the appellant.
Benjamin N. Cardozo of counsel [William Klein, attorney], for the respondents.
This is an appeal from an order of the Special Term denying a motion to punish the defendants for contempt in disobeying an injunction pendente lite, granted September 21, 1909, restraining them from performing upon the stage except under the management of the plaintiff. This injunction order was affirmed (134 A.D. 951); motion for reargument or leave to go to the Court of Appeals denied November 12, 1909 (Id. 969).
On the 22d of November, 1909, a motion was argued before the Special Term on an order to show cause why an order should not be made modifying the order of September twenty-first, to the extent of vacating that portion thereof which restrains and enjoins the defendants herein until the final hearing and determination of this action from performing in vaudeville and rendering services to or for any other person, company or corporation and performing in any other theatre, place of public amusement or in connection with any other company or theatrical entertainment except that of the plaintiff herein. In other words, this court having affirmed the injunction granted by one judge at Special Term, the ingenious scheme was devised of getting another Special Term judge to reverse it. But upon the offer and consent of the plaintiff, who wanted the defendants back at work, the court made an order, dated December 1, 1909, providing as follows: 'Ordered, that the motion to modify the said injunction in the respects prayed for is in all things granted, unless the plaintiff shall duly pay to the defendants the sum of Nine hundred ($900) dollars per week, the salary named in the contract between the
plaintiff and the defendants, which shall commence from the 22d day of November, 1909, inclusive, and the plaintiff shall in addition to paying the salary mentioned in the contract, actually put the defendants and each of them to work, pursuant to the terms of the contract, and in the play mentioned in the contract and under the conditions stated in the contract no later than the evening of the 6th day of December, 1909, and it is further ordered that in the event that the plaintiff performs the conditions above named, that is to say, pays the salary mentioned and reserved in the contract for the defendants, commencing from the 22d day of November, 1909, and puts the defendants to work as above stated, not later than the evening of the 6th day of December, 1909, and in that event the said motion in all things denied. And it is further ordered, that this order shall be deemed to have been made, and is made, without prejudice to the rights of any party, plaintiff or defendants, as they existed at the time of the making of this application, and up to the time of the making of this order.'
The plaintiff paid to defendants $900 for the week begining November twenty-second, although under the contract the defendants were not entitled to pay for time used in rehearsals, and expended $293.20 in advertising and made all plans to put the defendants at work on December sixth, but before that time arrived the defendant Nora Bayes Norworth had refused to be measured for her costume, had neglected to attend rehearsals, had refused to sing songs and had generally acted in such manner as made it quite evident that all the pretenses of the defendants had been made in bad faith, and that they were striving for a breach of the contract by the plaintiff. The result was that plaintiff did not put them on They thereupon immediately appeared in the play known as 'The Jolly Bachelors,' produced by a rival manager, and received $1,000 a week.
The trial was had on April 27 and 28, 1910, and on May eleventh the court signed the final decree finding for the plaintiff and granting a permanent injunction. In its opinion the court stated: 'This controversy which has been a source of annoyance and pecuniary loss to all persons concerned, has been caused by the defendants' failure to appreciate the binding
obligations imposed by a contract. Their conduct has been unreasonable, without legal justification and in disregard of the letter and spirit of the provisions of the agreement of April 19, 1909. Their claim that the plaintiff discharged them is not sustained.' And in the findings of fact the court found as follows: 'That after the affirmance by the Appellate Division of the said order continuing the injunction, a motion was made on behalf of the defendants for a re-argument, or in the alternative for leave to appeal to the Court of Appeals from the said order continuing the said injunction, which motion was submitted on November 5th, 1909. That on the same day and before any decision was rendered upon the said motion, these defendants, by letter prepared after conference with their counsel, indicated a desire to perform for the plaintiff under the said contract, conditional, however, upon this litigation continuing and the action being tried, and further that in the event of the action being decided in favor of the defendants, that the defendants hold plaintiff liable for all damages caused by the injunction. 17. That the said offer to return to work for the plaintiff was not made in good faith. 18. That plaintiff, on the 17th day of November, 1909, informed the defendants, through their attorney, that if they desired to perform under the contract, they could report for duty on the following Monday, November 22nd, from which time their salary will commence at the rate and as specified in the contract, and that they report early enough to the stage director, to enable him to rehearse them and arrange for the appearance of the defendants, and at the same time sending to the defendants, through their attorney, two songs for the defendant, Nora Bayes Norworth, to sing. 19. That on representation of the defendants that they were ready to perform under their ...