The plaintiff was severely injured, and the verdict for $1,500 is not excessive. Upon the entire case, the judgment must be affirmed, with costs. MCADAM, Ch. J., McGown and FITZSIMONS, JJ., concur. THE LAWRENCEVILLE CEMENT Co., Resp't, v. SAMUEL WEBBER PARKER, App'lt. (City Court of New York, General Term, Filed June 3, 1890.) BILLS AND NOTES-DISCOUNT BY CORPORATION. In an action upon promissory notes one of the defenses was that plaintiff was not a banking corporation and had discounted the notes. Defendant was the only witness. The notes were made to one S., who was plaintiff's president, who gave its checks to his order therefor, and there was no proof that the corporation authorized or ratified his act. The court found that S., without authority, misappropriated the corporate moneys and made reparation by delivering the notes to plaintiff. Held, that as the transaction admitted of two interpretations, it was for the court to determine which was correct; that it was not bound to believe defendant, as he was interested, and that a case was not made out sufficiently clear to warrant a finding that the statute applied and the notes were void. APPEAL from judgment rendered at special term, by the court, without a jury. B. Doran Killian and M. H. Cardozo, for app'lt; Arnoux, Ritch & Woodford, for resp't. PER CURIAM.-This is an appeal from judgments rendered at trial term, in four actions, the defenses being similar. The first defense is usury, but no corrupt agreement was proved, and the difference between the interest exacted and the legal rate was so slight that the error may well be attributed to mistake in calculation, rather than to intention or to criminal misconduct. The real defense is that the plaintiff is not a banking corporation and discounted the notes in suit. The answer does not refer to the statute, but it is evidently intended that by force of the statute the discount was invalid. The difficulty we encounter in respect to this defense is twofold. First, the defendant was the only witness, and being directly interested in the result, the trial judge was not bound to believe him. Next, there is no legal evidence showing a discount of the notes by the plaintiff. The transaction was had by the defendant on the one hand and David Scott, the payee of the note, on the other. True, Scott was the president of the corporation and gave the defendant its checks, but they were signed by him alone, and there is no direct evidence that the corporation authorized, sanctioned or approved of his act, and the act being an illegal one, the presumption would naturally be against such authority or approval. Scott's knowledge is not imputable to the plaintiff. See Atlantic State Bank v. Savery, 82 N. Y., 291. The conduct of Scott, the payce, admits of two interpretations; one that he did the act for the corporation under what he supposed to be his authority as such; next, that it was not a corporate act, but an individual act of his own, (the notes not being payable to the corporation, but to his own individual order, and bearing his individual endorsements on which he was individually liable), and that he, without authority from the corporation, misappropriated its moneys by giving them to the defendant, in which case the corporation might have sued him for the misappropriation or might have traced the funds so misappropriated by the trustee into the hands of the defendant, or into any security to which they could be identified. Such is the fact as found by the trial judge, and as the transaction admits of two interpretations it was for the trial court to determine which was correct. The trial judge also finds that Scott subsequently made reparation for the wrong, by delivering the notes over to the plaintiff. The facts admit of this construction. The checks were also payable to Scott's order, so that the documentary proofs show an individual transaction between Scott and the defendant. It was neither alleged nor proved that the transaction was to evade the statute, or that the plaintiff was privy to any such intent. The law favors an innocent rather than a wrongful construction of the acts of parties. It does not avor forfeitures, and equity often relieves from them. The defendant seeks by technical pleas to defeat the collection of honest obligations to pay, and is entitled to no especial favor from the court in aid of his design. The defense is devoid of merit, and has no equity to commend it. As we remarked before, the defendant was the only witness, and being interested, the trial judge was not bound to accept his interpretation of the transaction through which he sought to avoid the payment of money he ought to have restored, and that promptly, at maturity. This is particularly so in view of the fact that Scott, the payee, is dead. The court of appeals has shown a disposition to relieve from the penalties of the statute where it can consistently be done. See Rome Savings Bank v. Krug, 102 N. Y., at p. 335; 1 N. Y. State Rep., 694. The evidence in the present instance fails to make a case sufficiently clear to warrant us in holding that the statute is applicable, and that the notes are void. Upon the entire record, we find that no injustice was done, the result is sufficiently sustained by the proofs, and the judgments must be affirmed, with costs. McGown and FITZSIMONS, JJ., concur. JOHN S. WORMAN, Resp't, v. JOSEPH FRANKISH et al., App'lts. (City Court of New York, General Term, Filed June 9, 1890.) MOTIONS AND ORDERS.-MOTION CANNOT BE REHEARD WITHOUT LEAVE. A motion cannot be reheard without permission from the judge before whom it was originally made, even though the new application is made upon additional proofs. APPEAL from order vacating order requiring security for costs. Johnston & Johnston, for app'lts; Theal & Beam, for resp't. PER CURIAM.-The point upon which the order requiring se curity for costs was vacated was that the matter had been theretofore decided by Mr. Justice Van Wyck adversely to the defend ants. This decision was on the merits, and after a full hearing. True, the new application was on additional proofs, but the ground of the application was the same, viz.: the non-residence of the plaintiff. The defendants ought to have applied to Justice Van Wyck for leave to renew the motion. To allow motions to be reheard without permission might lead to uncertainty and to conflict of decision, results which should not be encouraged. Upon the entire record, and on the theory of res adjudicata, and without expressing any opinion on the facts now disclosed, we have concluded to affirm the order appealed from, without costs. MCADAM, Ch. J., McGown and FITZSIMONS, JJ., concur. JENNIE FISHER, Resp't, v. ROBERT B. MONROE et al., App'lts. (City Court of New York, General Term, Filed June 12, 1890.) MASTER AND SERVANT-DISCHARGE-EXCUSE FOR NON-ATTENDANCE. Physical exhaustion and consequent inability to attend is a sufficient excuse for an actress' non-appearance at a particular rehearsal, and such one excused non-attendance does not furnish ground for rescinding the contract and terminating her employment. APPEAL from judgment entered on verdict in favor of plaintiff. Action for wrongful discharge and consequent breach of con tract. W. H. Phelps (Hoover, Sulzer & Foster, of counsel), for app'lt S. Miller, for resp't. PER CURIAM. We recognize the fact that a party seeking to recover upon a contract must show performance of all the conditions precedent thereof, and that a servant, no matter how exalted the station, must obey the lawful commands of the master. Yet there are legal excuses, which are at times accepted for nonperformance, and which save a forfeiture of the right of re covery. The plaintiff was discharged for not attending a rehearsal of the theatrical company to which she was attached, and if the failure to attend was willful or intentional, the plaintiff was properly discharged and cannot recover. The defendants proved that the neglect to attend the rehearsal was intentional and inexcusable. The plaintiff, on the other hand, testified that the failure to attend was owing to physical exhaustion and consequent inability, and this we hold to be a sufficient excuse for the plaintiff's nonattendance at that particular rehearsal. Wolfe v. Howes, 20 N. Y., 197; Spalding v. Rosa, 71 id., 40. The ailment was only temporary, not permanent; did not seriously interfere with the defendants' enterprise; nor did it disable the plaintiff from rendering full performance of the substantial part of her contract. This one excused non-attendance (even if attendance at that time was required by the rules of the defendants' company, a fact about which the evidence is not clear), did not furnish ground for rescinding the contract and terminating the plaintiff's employment. The theories of the respective parties were submitted to the jury, and they adopted the one advanced by the plaintiff. The verdict was based upon conflicting evidence, and it was the province of the jury to weigh the proofs and arrive at a result. The verdict is satisfactorily sustained by the evidence, and, as we find no error in the rulings at the trial, it follows that the judg ment appealed from must be affirmed, with costs. MCADAM, Ch. J., and FITZSIMONS, J., concur. CHARLES F. BENJAMIN, Pl'ff, v. THE PUBLIC SERVICE PUBLISHING CO., Def't. (City Court of New York, Trial Term, Filed April 24, 1890.) CONTRACT-JOURNALISTIC CORRESPONDENCE-CONSTRUCTION. A contract to furnish correspondence for a newspaper or journal at a certain amount per week, on the basis of averaging a certain number of words, is one for weekly service at a fixed compensation and not for an indefinite quantity of matter at a certain rate per word, and the correspondent is not entitled to increased pay where his articles exceed the specified number of words. On March 28th, 1887, the plaintiff entered into an agreement with the defendant, the publishers of a weekly journal known as "The Public Service Review," whereby the plaintiff was to act as the Washington correspondent of that journal. The terms were twenty dollars per week for a weekly resume of the military situ ation, the article to be about 1,500 words in length. A new contract was made by correspondence June 1, 1887. The parties differ as to its interpretation. The portion material to the question in dispute is contained in a letter sent by the plaintiff to the defendant on May 31, 1887, in which he writes: "The pay can continue at twenty dollars per week, upon the basis of my averaging 2,000 words per week, which is better than your proposal of 1,500 words per week." The proposition was accepted by letter sent to the plaintiff June 1, 1887, in which the defendant writes: "Your suggestion of 2,000 words a week of correspondence is satisfactory at $20." This arrangement was continued until August 31, 1887, when it terminated. The defendant paid and the plaintiff accepted twenty dollars per week during the continuance of both agreements. Under the first contract the plaintiff was to write gossip, a theme that became distasteful to him, and under the new arrangement he was to be a critic and commentator. After both agreements terminated, the plaintiff claimed that there was still a balance owing to him; that the new contract entitled him to twenty dollars for every 2,000 words furnished; that the articles written exceeded 2,000 words per week, and that, for the excess, he was entitled to recover at the contract rate of one cent a word. The defendant contends that the twenty dollars per week was the fixed stipend, and as the amount has been paid regularly there can be no recovery. A. H. Ely, for pl'ff; Nichols & Bacon, for def't. MCADAM, Ch. J.-"The Public Service Review" was a weekly publication, and the contract contemplated a weekly contribution of literary matter, the compensation for which was to be twenty dollars a week, and the payment of that sum discharged every obligation owing by the defendant under the contract. The expression "averaging 2,000 words per week" was to regulate the size of the article. A substantial performance of this condition was all that was required. For example, an article containing 1,900 words one week and 2,100 the next would probably answer the legal requirement. One hundred words one week and 3,900 the next would not. The entire weekly publication could not well be devoted to the plaintiff's article, no matter how interesting. "The Review," like other publications, evidently had a corps of writers, each of whom was entitled to his share of space to suit journalistic requirements. The fact that the plaintiff's articles greatly exceeded 2,000 words per week did not increase his compensation, nor could the regular weekly stipend of twenty dollars per week be varied or enlarged by any extra exertion of the plaintiff. The hiring was a contract for weekly service at a fixed compensation, and not for an indefinite quantity of matter at one cent a word. This construction is in accord with the acts of the parties, and is evidently what they understood. Their intention, as gathered from the writings, the nature of the subject-matter and their acts must prevail. Even when the actual terms of the agreement contradict the manifest intention, the intention governs. Story on Con., §8 636, 638. "The best construction," says Gibson, Ch. J., "is that which is made by viewing the subject as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it. result thus obtained is exactly what is obtained from the cardinal rule of intention." Schuykill N. Co. v. Moore, 2 Whart., 491. While there is force and merit in the ingenious argument of the plaintiff's counsel, it has failed to change these views. It follows that there must be judgment for the defendant. EDGAR STRAKOSCH, Pl'ff, v. CARL STRAKOSCH, Def't. (City Court of New York, Trial Term, Filed June 24, 1890.) CONTRACT-THEATRICAL-MEANING OF TERM A 66 UNTIL CLOSE OF SEASON. Plaintiff was employed by defendant as advance agent of an opera company, "until the close of the season, which will not last longer than the middle of May." Plaintiff filled up the contracts with sub-performers, which provided that they should be cancelled in case of serious illness of the leading soprano. On account of such illness defendant closed the season January 26, and the performers were paid off, plaintiff assisting in doing So. Held, that the terms of the contract showed that the duration of the season was uncertain, and left to be determined by future events, that it was effectually brought to an end on January 26, and that plaintiff could not recover damages for not being permitted to perform services thereafter. On June 11, 1888, the plaintiff and defendant entered into an agreement whereby the defendant employed the plaintiff to act as advance agent and business manager of an English opera company, of which the defendant was proprietor, and in which Clara Louise Kellogg was the principal artist. The employment was to commence June 18, 1888, at $25 per week, until November 4, |