This action is brought upon a contract of which the following is a copy: “$8.50 per week. New York, Sept. 23d, 1886. I hereby agree to pay Edward J. Hazzard the sum of $8.50 per week for publishing my advertisement in the Eifth Ave., Union Sq., and Lyceum Theater, to occupy one inch on programme page for the theater season. Season 1886-1887. Anna P. Hoxsie.” The cause of action alleged was for the publication of the advertisement for the period commencing May 1, 1887, until the end of the theatrical season of the theaters, respectively. The season of the Eifth Avenue Theater closed on the 28tli of May, 1887, and the plaintiff in the complaint made an allowance of $2.50 per week therefor; and the season of the Union Square Theater having ended on the 9th of July, another allowance of $2.50 was made; and the season of the Lyceum Theater ending on the 16th of July, only $3 was charged and claimed for the last week. In her answer the defendant denied each and every allegation in the complaint, and alleged that the theatrical season ended on the 1st of May, 1887, in support of which allegation no proof was offered.
It is clear that the contract in question was an entire contract, and there is no authority for an apportionment. Either it ended with the closing of the Eifth Avenue Theater, or it continued in its entirety until the closing of the Lyceum Theater. The contract was performed until the closing of the Eifth Avenue Theater on the 28th of May, 1887, and payment was made thereon up to the 1st of May, 1887, and the question arises as to whether any recovery can be had upon this contract subsequent to the 28th of May, the time of the closing of the Eifth Avenue Theater. It is clear from a reading of this contract that it was the intention of the parties that the defendant was to pay $8.50 for the publication of her advertisement in the programmes of the three theaters, and when it became impossible for the plaintiff to comply with the provisions of the contract by publishing in the three programmes, it seems to be equally clear that the contract terminated, as it evidently was not the intention of the parties that the defendant was to pay $8.50 a week for the publication in either one or two of these programmes. The contract, being an entirety, therefore terminated upon the closing of the theatrical season of the Fifth Avenue Theater, because subsequent to that time, as already stated,