Tobias v. Joy Music, Inc. — 46 Misc. 2d 951

Majority

p. 951

Charles Tobias et al., Respondents, v. Joy Music, Inc., Appellant.

Supreme Court, Appellate Term, First Department,

April 22, 1965.

Julian T. Abeles and Robert C. Osterberg for appellant. Jack M. Ginsberg and Norma Hack for respondents.

The award by the United States District Court for the Southern District of New York, in the prior action, of reasonable attorney’s fees to defendant, apparently pursuant to section 116 of the Copyright Law (U. S. Code, tit. 17) is not res judicata as to the extent of plaintiffs ’ liability. That award was based upon a statute providing for the award of “ a reasonable attorney’s fee ”, not, as in the instant case, upon a contract between the parties which provided for payment of “ all of the expenses so incurred”. (Cohen Furniture Co. v. Consolidated Edison Co., 160 Misc. 941 .) The prior award was based upon

p. 952

an exercise of judicial discretion under the Copyright Law, and was not concerned with the agreement which forms the basis of this action.

The judgment and order should be reversed, with $10 costs, and motion denied.

Concur — Tilzer, J. P., Gold and Capozzoli, JJ.

Judgment and order reversed, etc.

Cases cited

J. & K. Cohen Furniture Co. v. Consolidated Edison Co. of New York, Inc. 160 Misc. 941 N.Y. Mun. Ct. 1936-10-31 p. 951