Mercury Record Corp. v. Glazer

• Court: United States State Supreme Court (New York)
• Writing for the Court: THOMAS A. AURELIO
• Citation: 29 Misc.2d 567,213 N.Y.S.2d 231
• Decision Date: 07 March 1961
• Parties: MERCURY RECORD CORP., Plaintiff, v. Tom GLAZER, Defendant.

Page 231

213 N.Y.S.2d 231 29 Misc.2d 567 MERCURY RECORD CORP., Plaintiff,
v.
Tom GLAZER, Defendant. Supreme Court, Special Term, New York County, Part I. March 7, 1961.

Page 232

[29 Misc.2d 568] Paul J. Kern, New York City (Rhoda Hendrick Karpatkin, New York City, of counsel), for plaintiff.

I. Jack London, New York City, for defendant.

THOMAS A. AURELIO, Justice.

Defendant moves to vacate and cancel a record judgment in the sum of $1,721.89 entered against him. The judgment is, in fact, a 'record' judgment since it is based on defendant's failure to repay, according to a settlement reached between the parties, monies he mistakenly received as an overpayment for royalties due on a record he had made for plaintiff's assignor. Because of a series of errors, made by various of the parties and their attorneys, a comparatively simple case has been ballooned out of all proportion to its real importance. The court is now called upon to exercise its equitable powers to bring the matter to some definitive conclusion.

The facts are briefly as follows: In 1954, plaintiff sent defendant a royalty check for $2,499.75. About four years later, plaintiff discovered a bookkeeping error and demanded a return of $1,987.24 as an overpayment. Defendant refused, claiming legal and tax expenses and that the entire sum had been spent. Plaintiff brought suit and, with the help of Mr. Justice Nathan, the case was settled for $1,375. The settlement provided for payment in two installments, and it gave plaintiff the right to enter judgment for the full amount sued for on any default, after 10 days written notice of default to defendant's attorney. The first installment was duly paid. The final installment was due on October, 1960. Defendant was then out of town on a tour. Plaintiff's attorney sent a certified notice to defendant's attorney announcing the default. Defendant's attorney, in the interim, had moved his offices and, although the letter was signed for by one of his secretaries, defendant's attorney swears that he never received the notice and, therefore, never informed r defendant. Plaintiff thereafter recorded the judgment in question in early November. Late that same month, defendant returned and sent plaintiff a check for the full final installment (still allegedly without knowledge of the judgment). On the face of this check, defendant wrote the words, 'Final payment in full to settle claim re: overpayment of royalties'. Plaintiff admittedly crossed...