Crosney v. Edward Small Productions

• Decision Date: 17 December 1942
• Citation: 52 F. Supp. 559
• Parties: CROSNEY v. EDWARD SMALL PRODUCTIONS, Inc.
• Court: U.S. District Court — Southern District of New York

52 F. Supp. 559

CROSNEY v. EDWARD SMALL PRODUCTIONS, Inc.

District Court, S. D. New York.

December 17, 1942.

I. Gainsburg, of New York City (Samuel Gottlieb, of New York City, of counsel), for plaintiff.

Friend & Reiskind, of New York City (Arthur S. Friend and Edwin M. Reiskind, both of New York City, of counsel), for defendant.

LEIBELL, District Judge.

The defendant, Edward Small Productions, Inc., has moved under Rule 12 (b), Federal Rules of Civil Procedure, 28 U.S. C.A. following section 723c, to dismiss the plaintiff's complaint herein on the ground that it fails to state a claim upon which relief can be granted.

It is alleged in the complaint, that plaintiff is administratrix c. t. a. of one Sam Bernard, deceased, under an appointment of the Surrogate's Court, New York County (Par. First); that the defendant, Edward Small Productions, Inc., is a California corporation (Par. Second); that the matter in controversy exceeds the jurisdictional requirements of $3,000 (Par. Third).

It is also alleged that prior to the commencement of this action, a play entitled "Friendly Enemies" was written by Aaron Hoffman and Samuel Shipman and copyrighted by them on January 25, 1918 (Par. Fourth); that in and by an agreement dated January 14, 1918, one Albert H. Woods acquired from the playwrights a one-half interest in the motion picture rights, and all other rights with respect to said play, and in the income, benefits and profits derived therefrom (Par. Fifth). That on or about February 20, 1918, Sam Bernard, plaintiff's testator, became jointly interested with Albert H. Woods in and to said play and all rights appertaining thereto, and in the income, benefits and profits derived therefrom, pursuant to a certain written agreement, dated February 21, 1918, of which a copy is annexed to the complaint (Par. Sixth); that in certain bankruptcy proceedings where Albert H. Woods was the alleged bankrupt, in the United States District Court for the Southern District of New York, an order was duly made on May 4, 1932, directing the sale of the alleged bankrupt's assets, and that on or about said date, pursuant to notice, there was offered for sale, in the course thereof: "Plays in which Mr. Albert H. Woods claims to have an interest in the silent and/or talking motion picture rights, and/or plays in which Mr. Woods claims to have an interest in releases for stock production." (Par. Seventh.)

It is also alleged that such rights as Albert H. Woods then had remaining in and to and with respect to said play "Friendly Enemies" were sold to and acquired by one, Jacob J. Schwebel at the bankruptcy sale, and that the sale was duly confirmed by an order made in the bankruptcy proceedings on or about May 31, 1932 (Par. Eighth); that Jacob J. Schwebel, the purchaser in said bankruptcy sale, acquired only such interest as Albert H. Woods then had, and did not acquire the interest of plaintiff's testator nor any part thereof (Par. Ninth); that thereafter, and prior to the commencement of this action, Jacob J. Schwebel sold and assigned such rights as he had acquired in and to said play as a result of his purchase in the bankruptcy proceedings, to the defendant Edward Small Productions, Inc. (Par. Tenth); that at no time did the defendant, Edward Small Productions, Inc., acquire the rights of plaintiff's testator, Sam Bernard, in and to the play, or the testator's interest in and to the income, benefits and profits derived therefrom (Par. Eleventh).

The complaint further alleges that heretofore, and in and about 1942, the defendant Edward Small Productions, Inc., undertook to and did produce a certain sound motion picture photoplay entitled "Friendly Enemies" based upon the aforesaid play, without the consent of plaintiff's testator, Sam Bernard, or of this plaintiff, and in violation and disregard of the rights acquired by Sam Bernard in and pursuant to the aforesaid agreement dated February 21, 1918, and that said defendant, Edward Small Productions, Inc., has misappropriated and usurped such rights (Par. Twelfth); that the defendant has received and is receiving from the production and use of the motion picture photoplay, income, profits and royalties, the amount of which is unknown to the plaintiff, and unascertainable except by an accounting, and that plaintiff has no adequate remedy at law (Pars. Thirteenth and Fourteenth.)

Plaintiff demands judgment that a trust be declared of plaintiff's right and interest in said motion picture photoplay "Friendly Enemies", and that defendant account to the plaintiff for all profits and income received therefrom and be directed to pay to the plaintiff the proportion thereof to which plaintiff may be and is entitled.

On a motion, such as this, to dismiss the complaint for failure to state a valid claim for relief, all properly pleaded allegations of the complaint are accepted as true.

The first thing to consider is what the plaintiff's testator received under the February 21, 1918 letter agreement with Mr. Woods. The opening paragraphs of the letter agreement read as follows:

"Confirming our oral arrangements to date in the contemplated production of the play for the present entitled `Friendly Enemies', and in...