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THE LAW OF MOTION PICTURES
Where the relationship is that of employer and employe the remedy for a breach is an action at law in damages.212
But where the contract provided that defendant furnish the building and pay certain of its expenses, and the plaintiff was to give his time and skill in carrying on a theatre therein and act as manager thereof, the defendant to receive a fixed sum as rent, and in addition thereto one-half of the net profits, losses to be borne equally by the parties, this was held to create a partnership, and it made no difference that the parties referred to themselves throughout as lessor and lessee.213
Popular Pictures Corp. (1917), N. Y. Law Journal, Jan. 20. The appeal taken in the action and reported in (1917), 178 A. D. (N. Y.) 86, was not from the order made in pursuance of the motion above reported.
212McLellan v. Goodwin (1899), 43 A. D. (N. Y.) 148; 59 N. Y. Supp. 290. Plaintiff, a theatrical manager, agreed to conduct a tour of the defendant, an actor. Defendant was to receive 50% of the receipts and was to pay his company of players and for costumes out of such moneys. Plaintiff agreed to pay other expenses out of his share of the receipts. Plaintiff did not conduct a tour for defendant and defendant earned moneys by employment elsewhere. The action was brought for an accounting of
moneys earned by defendant. Held plaintiff was not in any event entitled to share in earnings of defendant as such earnings were not received by defendant from a tour conducted by plaintiff; that plaintiff’s remedy, if at all, was one at law for damages for breach of contract.
213 Leavitt v. Windsor Land & Investment Co. (1893), 54 Fed. (C. C. A.) 439.
See also: Cole v. Rome Savings Bank (1916), 96 Misc. (N. Y.) 188; 161 N. Y. Supp. 15. Defendant Rome Savings Bank made an agreement with one Edwards whereby R. gave the use of a theatre which it owned for one year upon the following conditions:
E. agreed to deduct from the gross receipts a specified sum to