De Bekkee v. Frederick A. Stokes Co. — 157 N.Y.S. 576

Majority

p. 576

DE BEKKEE v. FREDERICK A. STOKES CO. et al.

(Supreme Court, Appellate Division, Second Department.

February 28, 1916.)

Headnote

Literary Property <@=»9—Contract for Publication—Rights of Author.

Where an author and publisher made a contract for publication of a work under a certain name, providing a royalty on all copies sold in the regular trade way and the allowance of a specific sum if the publishers should sell the work by subscription or other similar methods, an agreement between the publisher and another publisher for publication of the work in connection' with several other volumes under a different name was a breach of the author’s contract, and he is entitled to recover of both publishers the damages flowing from such breach.

[Ed. Note.—For other cases, see Literary Property, Cent. Dig. § 8; Dec. Dig. @=>9.]

cgzxoFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

On reargument. Former opinion ( 168 App. Div. 452 , 153 N. Y. Supp. 1066 ) modified, and interlocutory judgment modified to conform to findings as amended, and, as modified, affirmed.

Argued before JENKS, P. J., and THOMAS, STAPLETON, MILLS, and PUTNAM, JJ.

Edmund L. Mooney, of New York City, for appellants.

Harold G. Aron, of New York City, for respondent.

Upon the reargument the conclusion is reached that the sixteenth finding of fact should be reversed, and it is found :

“That the plaintiff has been damaged by the publication of the work pursuant to the contract between the defendants.”

The first conclusion of law is reversed, and it is decided:

“That the contract made by the defendant Stokes Company with the University Society on October 5, 1910, was made in violation of the plaintiff’s rights under his contract with the defendant Frederick A. Stokes Company, and was • entered into without the knowledge, consent, or approval of the plaintiff herein, and was a breach of the contract of July 19, 1907.”

The second, third, fourth, fifth, seventh, and eighth conclusions of law are reversed. It is decided:

p. 577

“That the plaintiff is entitled to final judgment against the defendant Frederick A. Stokes Company for the amount found due plaintiff on said accounting, but the defendant Frederick A. Stokes Company is entitled to be credited upon such accounting with the sum of $600 advanced by it to the plaintiff upon the contract of August 20, 1908,” and “that plaintiff is entitled to judgment against the defendants and each of them for such damages as flow from the breach of the contract.”

It is further decided that the plaintiff is entitled to receive royalties as prescribed by the contract on sales to the entry of the interlocutory judgment herein, and that the defendant Frederick A. Stokes Company should account for the same. The former opinion is modified, so far as it directs different disposition of the appeal, or method of accounting, or ascertainment of royalties or damages.

As the plaintiff has not appealed from the judgment, the court’s direction as to costs is unaffected.

The interlocutory judgment should be modified, to conform to the findings as amended, and, as so modified, affirmed, without costs.

Settle order before TFIOMAS, J.