Rose v. Bourne, Inc.
| Decision Date | 22 April 1959 |
| Citation | 172 F. Supp. 536 |
| Parties | Billy ROSE, Ray Henderson and Mel Torshin, as Executors of the Estate of Mort Dixon, Plaintiffs v. BOURNE, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Hays, St. John, Abramson & Heilbron, New York City, for plaintiffs.
Phillips, Nizer, Benjamin & Krim, New York City, for defendant, Walter S. Beck, Simon Rose, Albert F. Smith, New York City, of counsel.
This is a motion by plaintiffs for a voluntary dismissal with prejudice. Plaintiffs are assignors of the copyright of a song, "That Old Gang of Mine". They bring this action against the assignee for infringement. The action is based on the theory that the assignment conveyed only the original term, that the original term has expired and that the assignors have renewed the copyright for their own benefit.
Defendant counterclaimed for a judgment declaring that defendant was the legal owner of the renewal copyright or declaring that defendant was the beneficial owner of the renewal copyright and directing plaintiffs to specifically perform the assignment.
On the trial counsel for plaintiffs stated that the action was a test case as to the effect of an assignment in the form here used. I indicated a disposition to hold that the assignment conveyed the right of renewal. Plaintiffs then urged that equitable considerations such as inadequacy of consideration and change of circumstances ought to be given effect. Defendant thereupon withdrew its counterclaim in order to eliminate the counterclaim's prayer for specific performance as a basis for importing equitable considerations into the solution of the problem.
The trial proceeded and I indicated my disposition to hold that the renewal right had been conveyed as before and that equitable considerations were not relevant. I said, however, that, since a test case was being submitted, I would take the testimony for the benefit of the appellate courts in the event that my view proved to have been incorrect. After the midday recess and before the direct testimony of the first witness had been completed, plaintiffs asked leave to dismiss without prejudice. I adjourned the continuation of the trial indefinitely and took the motion under advisement. Eventually I denied the motion with the statement that I would proceed with the trial at the conclusion of another case which I was then trying and which I said would occupy about another thirty days.
In the meantime plaintiffs have brought this motion for a dismissal with prejudice. Defendant asks that I make findings.
The opinion in Lawlor v. National Screen Service, 349 U.S. 322, 327, 75 S.Ct. 865, 868, 99 L.Ed. 1122, teaches that a dismissal with prejudice, even in the absence of findings, will...
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