Didier v. Macfadden Publications, Inc.
| Decision Date | 14 April 1949 |
| Citation | 85 N.E.2d 612,299 N.Y. 49 |
| Parties | DIDIER v. MACFADDEN PUBLICATIONS, Inc., et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, First Department.
Action by John P. Didier, doing business under the name of Didier Publishers, against Macfadden Publications, Inc., and others for breach of a contract granting plaintiff the right to publish in book form certain articles previously published in named defendant's magazine. From an order of the Appellate Division of the Supreme Court, in the first judicial department, entered June 7, 1948, 274 App.Div. 757, 79 N.Y.S.2d 521, which affirmed, by a divided court, an order of the Supreme Court at special term, 80 N.Y.S.2d 409, Botein, J., entered in New York County, granting a motion by defendant pursuant to rule 112 of the Rules of Civil Practice, for judgment on the pleadings dismissing the complaint, plaintiff appeals by permission upon a certified question.
Order affirmed. Milton E. Mermelstein and Jay I. Julien, all of New York City, for appellant.
Henry E. Schultz, Joseph Schultz and Joseph E. Ginn, all of New York City, for respondents.
This is an appeal by permission of the Appellate Division, First Department, from its order affirming an order of the Special Term, Supreme Court, New York County, dismissing the plaintiff's complaint, in a contract action, for insufficiency under rule 112 of the Rules of Civil Practice with leave to plaintiff to amend and upon the following certified question: ‘Does the first cause of action of the complaint, together with the bill of particulars, contain facts sufficient to state a cause of action?’
The complaint alleges two causes of action, the first against defendant, Macfadden, and the second against defendant, Colbert, but as the latter has not been served and has not appeared, only the first cause of action is being considered.
The plaintiff alleges in substance for the first cause, that it is a book publisher; that on July 11, 1946, it entered into a written contract with the defendant Macfadden by which the latter assigned and granted plaintiff the sole and exclusive right to publish or have published in book form, a series of articles written by Claudette Colbert which had appeared in its magazine, Photoplay, entitled ‘What Should I Do?’ The contract is annexed to the complaint and is incorporated by reference. It appears to be a stock form in common usage among authors and publishers, of which many clauses were inappropriate to the present transaction and were lined out, the margin being initialed by the respective parties. The approved recitals contained, among others, a warranty that the defendant was sole proprietor of the work and had full power and authority to enter into the agreement and a provision for indemnification of the plaintiff for its loss for breach prior to publication and a covenant to deliver any and all documents necessary to effectuate the terms of the contract. The contract is comprehensive in scope and appears to be complete on its face and in fact, recites that it is ‘the entire understanding of the parties.’ The complaint alleges that the plaintiff was ready, able and willing to perform and offered to perform, and includes:
‘Seventh: * * * but the defendant, Macfadden Publications, Inc., prevented due performance by the plaintiff of the said contract in that said defendant failed and refused to permit the plaintiff to publish the work described in said contract and threatened to bring injunction proceedings to restrain plaintiff from publishing said work.
‘Eighth: The defendant, Macfadden Publications, Inc., has breached and violated its said contract with the plaintiff in that it failed and refused to permit the plaintiff to publish the work described in said contract, and prevented plaintiff from publishing the said work by threatening to bring injunction proceedings to restrain the plaintiff from publishing the said work.’
The defendant filed its answer, generally denying such allegations and as a separate defense, alleged that the parties had entered into a separate coincident agreement to the effect that the plaintiff was to get the approval of Miss Colbert to the jacket of the proposed book and proofs of the manuscript before publication and this it had failed...
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