Brick v. Cohn-Hall-Marx Co.

CourtNew York Court of Appeals
Writing for the CourtCRANE
Citation11 N.E.2d 902,276 N.Y. 259
PartiesBRICK et al. v. COHN-HALL-MARX CO.
Decision Date07 December 1937

276 N.Y. 259
11 N.E.2d 902

BRICK et al.
v.
COHN-HALL-MARX CO.

Court of Appeals of New York.

Dec. 7, 1937.


Action by George H. Brick and another, doing business under the firm name and style of Brick & Ballerstein, against the Cohn-Hall-Marx Company. From a judgment of the Appellate Division (251 App.Div. 300, 296 N.Y.S. 342), reversing on the law a judgment of the Special Term dismissing the complaint, defendant appeals.

Order of the Appellate Division reversed, and judgment of the Special Term affirmed.

[11 N.E.2d 903]

Appeal from Supreme Court, Appellate Division, First Department.
Milton C. Weisman and Melvin A. Albert, both of New York City, for appellant.

Eugene L. Bondy and Norman Winer, both of New York City, for respondents.


CRANE, Chief Judge.

On the 13th of May, 1924, the plaintiffs and the defendant entered into a contract regarding royalties to be paid upon the use of a certain package for marketing bolts of cloth. Both parties claimed patent rights, and the agreement was made to permit the use of the package pending patent litigation. The agreement provided for payment as follows:

‘First. The first party agrees to pay to the second party 7 1/2¢ per package for each package of bolted cotton or other goods described in said application sold or otherwise disposed of by said corporation, and 7 1/2¢ per package for each package sold or otherwise disposed of by any of its allied and/or subsidiary firms or corporations, and one-half of all sums of money received from all persons, firms and corporations to whom or to which licenses shall be granted to use such invention, and first party agrees to pay to the second party said amount, but it is agreed that the said one-half of the receipts to be paid to the second party by the first party shall not be less than 7 1/2¢ per package for each package used. * * *

‘Third. The first party agrees to keep accurate books and records showing clearly the number of said packages which shall be sold or otherwise disposed of by the first party and its allied and/or subsidiary corporations or businesses, which books shall be open to the inspection of the second party and their accountants, and the first party further agrees to render to the second party every three months, when payments shall be made as aforesaid, verified statements showing the number of packages sold or disposed of by it and/or by its affiliated and/or allied corporations and businesses during said period.

‘The first party further agrees to exhibit to the second party all contracts made by the first party for the use by others of said package and all licenses which shall be granted by it, and shall also render verified statements each three months showing the sums of money received by it for said manufacture and/or use of said package during said period, and shall also at the time of making payments as hereinbefore provided pay to the second party the sums due to the second party by reason of any and all...

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232 practice notes
  • In re State Street Associates, L.P., Bankruptcy No. 04-63673.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Northern District of New York
    • 23 March 2005
    ...the only purpose that serves the plaintiff in pleading fraud is to avoid a statute of limitations defense. Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 11 N.E.2d 902, 904 (N.Y.1937). If the fraud allegation is only incidental to the claim, courts will not apply the fraud statute of limitation......
  • Okure v. Owens, No. 171
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 6 April 1987
    ...Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 459, 280 N.Y.S.2d 641, 227 N.E.2d 572 (1967) (quoting Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902 (1937)). Thus, in Schulman v. Krumholz, 81 A.D.2d 883, 439 N.Y.S.2d 160 (1981) (mem.), the court reasoned that a cause of......
  • United States ex rel. Bilotta v. Novartis Pharm. Corp., No. 11 Civ. 0071PGG.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 30 September 2014
    ...the form in which it is pleaded.” Cortelle Corp., 38 N.Y.2d at 86, 378 N.Y.S.2d 654, 341 N.E.2d 223 (citing Brick v. Cohn–Hall–Marx Co., 276 N.Y. 259, 263–64, 11 N.E.2d 902 (N.Y.1937) (“Whether the defendant deliberately refused to make payment, thus breaching its contract, or whether throu......
  • United States v. Novartis Pharm. Corp., No. 11 Civ. 0071(PGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 30 September 2014
    ...the form in which it is pleaded.” Cortelle Corp., 38 N.Y.2d at 86, 378 N.Y.S.2d 654, 341 N.E.2d 223 (citing Brick v. Cohn–Hall–Marx Co., 276 N.Y. 259, 263–64, 11 N.E.2d 902 (N.Y.1937) (“Whether the defendant deliberately refused to make payment, thus breaching its contract, or whether throu......
  • Request a trial to view additional results
232 cases
  • In re State Street Associates, L.P., Bankruptcy No. 04-63673.
    • United States
    • United States Bankruptcy Courts. Second Circuit. U.S. Bankruptcy Court — Northern District of New York
    • 23 March 2005
    ...the only purpose that serves the plaintiff in pleading fraud is to avoid a statute of limitations defense. Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 11 N.E.2d 902, 904 (N.Y.1937). If the fraud allegation is only incidental to the claim, courts will not apply the fraud statute of limitation......
  • Okure v. Owens, No. 171
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 6 April 1987
    ...Morrison v. National Broadcasting Co., 19 N.Y.2d 453, 459, 280 N.Y.S.2d 641, 227 N.E.2d 572 (1967) (quoting Brick v. Cohn-Hall-Marx Co., 276 N.Y. 259, 264, 11 N.E.2d 902 (1937)). Thus, in Schulman v. Krumholz, 81 A.D.2d 883, 439 N.Y.S.2d 160 (1981) (mem.), the court reasoned that a cause of......
  • United States ex rel. Bilotta v. Novartis Pharm. Corp., No. 11 Civ. 0071PGG.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 30 September 2014
    ...the form in which it is pleaded.” Cortelle Corp., 38 N.Y.2d at 86, 378 N.Y.S.2d 654, 341 N.E.2d 223 (citing Brick v. Cohn–Hall–Marx Co., 276 N.Y. 259, 263–64, 11 N.E.2d 902 (N.Y.1937) (“Whether the defendant deliberately refused to make payment, thus breaching its contract, or whether throu......
  • United States v. Novartis Pharm. Corp., No. 11 Civ. 0071(PGG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • 30 September 2014
    ...the form in which it is pleaded.” Cortelle Corp., 38 N.Y.2d at 86, 378 N.Y.S.2d 654, 341 N.E.2d 223 (citing Brick v. Cohn–Hall–Marx Co., 276 N.Y. 259, 263–64, 11 N.E.2d 902 (N.Y.1937) (“Whether the defendant deliberately refused to make payment, thus breaching its contract, or whether throu......
  • Request a trial to view additional results

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