(dissenting): I dissent on the ground that the contract sued on does not impose an obligation on the defendant to pay for a definite number of weeks. By the express provisions of the contract, the plaintiffs are designated therein as “ artists.” It then provides that “ The manager engages the artists [plaintiffs] to render professional services at such times and in such performances and plays as may be required of artists, and in such places of entertainment in the United States and Canada as the manager may designate, and in such characters to which artists may be assigned during the theatrical seasons 1913-1914 — said season commencing on or about August 25, 1913, and to consist of thirty-five weeks as laid out *403by the Columbia Amusement Company.” The “ artists ” accept such engagement, and “ agree to render to the manager said professional services *" * * and to attend and take part in any performance whenever called upon so to do by the manager,” and the manager “ agrees to pay to the artists $175.00 a week for each week during which artists shall have rendered such services.”
I fail to see in the above any promise or agreement to pay for any specific number of weeks, either express, or fairly to be implied. On the contrary, the provision as to payment expressly limits it to so much a week “ for each weeh during which artists shall have rendered such services/’ i. <?., the professional services to be rendered at such times, etc., as the manager may designate. This expressly excludes the idea that payment was to be made for each of the thirty-five weeks. Such being the clear import of the express contracting clause of the agreement, I do not think it can be extended by possible inferences to be drawn from subsequent clauses of the contract, or other extraneous considerations. The provision as to a pro rata deduction from the salary based upon the number of performances given in any week was evidently intended to cover broken weeks, while the first two preceding lines of that clause accentuate the above construction. If it had been intended to provide for a specific or minimum number of performances, it would have been easily competent to insert such a provision. Its absence is significant.
The question in this action is not as to lack of mutuality, but as to the terms of defendant’s promise. In any event, lack of mutuality could scarcely be predicated of this contract, as the agreement to pay a percentage of the profits of the “ show,” whether plaintiffs played or not, would seem to be ample con*404sideration for plaintiffs’ promise. A contract giving a manager a call on the services of an artist, if supported by a consideration, does not lack mutuality. The clause as to the option to suspend performances, without liability for salaries, might have been shown, if the question of the validity of contract had been involved, to have been incorporated in the contracts with all employees, and to be for plaintiffs’ benefit in connection with this profit arrangement, and thus not even by inference in any way inconsistent with the above construction of defendant’s promise. Any person has the right to make such contract as he chooses, and the courts are bound, if for a consideration and valid, to enforce it. Feinsot v. Burstein, 161 App. Div. 651, 662.
Judgment and order appealed from should be affirmed, with costs.
Order reversed and judgment modified, and, as modified, affirmed, with costs.