Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Pub. Co.

• Citation: 306 N.Y.S.2d 599,33 A.D.2d 766
• Parties: VAN VALKENBURGH, NOOGER & NEVILLE, INC., Plaintiff-Respondent and Cross-Appellant, v. HAYDEN PUBLISHING COMPANY, Inc. and Hayden Book Company, Inc., Defendants-Appellants and Cross-Respondents.
• Decision Date: 18 December 1969
• Court: New York Supreme Court — Appellate Division

Page 599

306 N.Y.S.2d 599

33 A.D.2d 766

VAN VALKENBURGH, NOOGER & NEVILLE, INC. Plaintiff-Respondent and Cross-Appellant, v. HAYDEN PUBLISHING COMPANY, Inc. and Hayden Book Company Inc., Defendants-Appellants and Cross-Respondents.

Supreme Court, Appellate Division, First Department.

Dec. 18, 1969.

E. London, New York City, for plaintiff-respondent and cross-appellant.

J. E. Haigney, New York City, for defendants-appellants and cross-respondents.

Before STEVENS, P.J., and EAGER, CAPOZZOLI, NUNEZ and McNALLY, JJ.

PER CURIAM.

These are two appeals which for purposes of convenience are consolidated for disposition. In the first, defendants appeal from an interlocutory judgment entered December 10, 1968 in favor of the plaintiff and against the defendants after a non-jury trial. Plaintiff cross-appeals from so much of the judgment as denied the plaintiff punitive damages. In the second, defendants appeal from so much of an order entered April 27, 1967 as granted plaintiff's motion for a protective order terminating the defendants' examination before trial of the plaintiff and to the extent that such order denied defendants' renewal motion for a bill of particulars. The order granting the protective motion and denying defendants' renewal motion for a bill of particulars was properly entered and is unanimously affirmed.

The interlocutory judgment appealed from is modified, without costs or disbursements, on the law and the facts as follows: In the first ordering paragraph the words 'forever enjoined and restrained' which appears at lines 9 and 10 of the first ordering paragraph are stricken, and the following words inserted: 'are temporarily enjoined and restrained pending the hearing before and report of the referee herein, after which such injunction shall terminate, from.' The second ordering paragraph is stricken in its entirety. The third ordering paragraph is modified as follows: to insert after the words 'shall account' which appear in the third line the following: 'as an item for the ascertaining and calculation of damages.'

We find and conclude that no fiduciary relationship exists between the parties. We find and conclude that this was a purely commercial relationship and a purely commercial transaction. The action more properly may be considered an action for breach of contract with demonstrated failure by defendants to use their 'best efforts', as they agreed to do under the publishing contract, for the continued promotion and sale of plaintiff's books (cf. Wood v. Lucy, Lady Duff-Gordon 222 N.Y. 88, 118 N.E. 214; Nelson v. Mills Music, Inc., 278 App.Div. 311, 104 N.Y.S.2d 605, aff'd 304 N.Y. 966, 110 N.E.2d 892). As such damages will afford the plaintiff adequate relief. The destruction of the Mileaf books as directed in the interlocutory judgment would destroy Mileaf's rights and Mileaf is not a party to this action. Moreover, this is not an action for copyright infringement. Indeed if it were relief would necessarily be sought in another forum. Plaintiff's cross-appeal from the denial of punitive damages is affirmed. Punitive damages were properly withheld since no public right is involved here, only private wrongs (see American Electronics, Inc. v. Neptune Meter Co., 30 A.D.2d 117, 290 N.Y.S.2d 333). To the extent that the findings and conclusions made by us are in conflict or contradiction to those made by the Trial Justice, such finding and conclusions of the Trial Justice are overruled and rejected and set aside, and new findings and conclusions made as herein stated.

All concur except McNALLY, J., who dissents and votes to affirm on the appeal from the interlocutory judgment entered December 10, 1968 in the following memorandum:

I dissent and vote to affirm.

The issue presented involves two sets of books, the plaintiff's 'Basic Electricity' and 'Basic Electronics', and the defendant's books, 'Electricity 1--7' and 'Electronics 1--7' prepared by one Mileaf. Plaintiff claims, and, in my opinion, the proof sustains its contention that the defendants as publisher of plaintiff's books have misappropriated them without disclosure to the plaintiff, utilizing them in the development, production and publication of the Mileaf series, using the plaintiff's form and substance of teaching the theory of the science of electricity, and in so doing used the same methods and devices of illustrations as plaintiff's books, all of which constitute unfair competition. The form used is in the nature of an abbreviated, progressive presentation, a discussion with accompanying illustrations of separate topics in sequential order, from theory to practice. The record, as I view it, is that the defendants' product is an expanded and updated version which was surreptitiously arrived at by the defendants taking unfair advantage of their contractual relationship with the plaintiff. As I view if, the defendants violated their obligation to deal fairly and honestly and in good faith with the plaintiff and violated...