Misc.]

Supreme Court, Appellate Term, June, 1915.

Katz & Sommerich, for appellant.

Thompson & Ballantyne (Raymond Ballantine, of counsel), for respondents.

BIJUR, J. The subject of the action is a block of marble. Only a question of law is involved in this appeal. One Feeney, on October nineteenth, sold to plaintiff a lot of marble (including this block) then lying in Shuttleworth's yard. Feeney was not at the time the owner of the marble, but was negotiating for its purchase from defendants, who subsequently sold it to Feeney. Defendants were fully cognizant of the sale by Feeney to plaintiff. Shortly thereafter defendants told Feeney that this particular block and others could be sold at a considerable profit to the Etna Marble Company, and Feeney testified that one of the defendants" asked me did I think it would be all right, and I said I do not think there is any question about its being all right. The Tompkins Kiel Marble Company (plaintiffs) are not anxious for the 20 blocks that is in Shuttleworths. I do not think they would object to receiving a profit on their sale.'" Thereupon defendants sold the entire lot to the Etna Marble Company, and plaintiff claims that such act was a conversion.

It is not necessary to determine whether the mere acquisition of this block by Feeney after he had sold it to plaintiff did not in and of itself vest the title thereto in plaintiff (see Rochester Distilling Co. v. Rasey, 142 N. Y. 570) because both sides seem to be willing to rest their claims on the need of some further step by Feeney, plaintiff-appellant, claiming that that should amount to "an appropriation for the benefit of the plaintiff." Respondent insists that such appropriation must be in the form of an act, citing

Supreme Court, Appellate Term, June, 1915. [Vol. 90.

Langton v. Higgins, 28 L. J. Exch. 252; Burrows v. Whitaker, 71 N. Y. 291, and many other cases.

Bearing in mind the fact that no rights of creditors intervene or are even suggested in the present case, and that defendants were familiar with every detail of the transaction, so that whatever bound Feeney bound them, I am unable to find in the conversation testified to by Feeney anything other than an express acknowledgment that he considered the marble (including this block), all of which was specified and well known to each party, to be the property of the plaintiff. So far as creditors of the parties might be concerned, some overt act might have been required to publicly emphasize and effect the vesting of the title in the plaintiff, but, as between the parties themselves, I cannot understand why an act should be required since the only legal effect of the act would be to permit therefrom, as an inference, the thought expressly spoken by Feeney to defendant, namely, that the marble belonged to plaintiff.

GUY and PAGE, JJ., concur.

Judgment reversed and a new trial ordered, with costs to appellant to abide event.

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

Misc.]

Supreme Court, Appellate Term, June, 1915.

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 "for profit" as prescribed in the Copyright Act of 1909, section 1, sub

Supreme Court, Appellate Term, June, 1915. [Vol. 90, Misc.]

division 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 to 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.

INDEX.

ACCOUNTING.

See Executors and Administrators.

ACTIONS.

1. Trustee sued as individual Demurrer.- Where the relief de-
manded in an action brought against a trustee for creditors indi-
vidually, by one of said creditors to restrain payment to the others
of a fund alleged to have been placed in the trustee's hands by the
debtor, is that the defendant personally shall perform the duties of
trustee in respect to the fund which it is alleged he received as
trustee, the complaint is demurrable on the ground that there was a
defect of parties, and also on the ground that it did not state facts
sufficient to constitute a cause of action against defendant; a cause
of action against an individual being distinct from a cause of action
against him as trustee or representative. The insolvent debtor hav-
ing the right to be heard on the question of his liability to plaintiff
and the other creditors having the right to have that question liti-
gated between plaintiff and the insolvent debtor the latter is a
necessary party to the action. Fisher v. Johnson, 46.

-

-

2. To set aside separation agreement Insufficiency of evidence
to sustain finding of fraud - When wife has right to obtain amount
sufficient to maintain reasonable standard of living — Discontinuance
of action previously brought – When wife not chargeable with
laches. Where in an action brought by a wife to set aside a separa-
tion agreement the evidence is insufficient to sustain a finding of
actual fraud or duress by any of the parties, but it is clear that the
terms of the contract were never satisfactory to plaintiff and that
she agreed to them under protest and her assent thereto was pred-
icated upon a misapprehension of her husband's income and cir-
cumstances, and it is conceded that she was never satisfied with the
amount allowed and asserted that it was insufficient for her support
and that of her child, based upon the standard of living theretofore
maintained by defendant and the station in life which was the
reasonable right of plaintiff and her child, and the evidence shows
that she will be unable to live as well under the contract as she did
before it was made, and the amount allowed thereby was only about
one-fourth of defendant's income, plaintiff will be awarded judgment
setting aside the separation agreement. A reasonable standard of
living having been adopted, a wife has the right to obtain, when
living apart from her husband under a separation agreement, if his
income warrants it, an amount which will permit her to live accord-
ing to that standard. The money which plaintiff received under
said agreement and which it is contended should be returned as a
condition precedent was undoubtedly all necessarily spent for the