153 N.Y.S. 1066 | N.Y. App. Div. | 1915
Lead Opinion
In July, 1907, the plaintiff and the Stokes Company made a contract concerning a work for which they established the name “ Stokes’ Encyclopedia of Music.” The work at the outstart was treated as existing, and the plaintiff was in terms related to it as author and proprietor, a characterization which may not now be impugned, nor is it proper to question the merit of the production, in view of the preface with which the Stokes Company introduced it. If the work at the time of the contract was existent at all it was incomplete for publication, and for that purpose the plaintiff agreed to have it ready in eight monthly installments, beginning September 1, 1907. It
The Stokes Company, concurrently with sales in the usual trade way, undertook to sell the work by subscription, not, however, as its own publication and under the name of the Stokes’ Encyclopedia of Music and Musicians, under which name the Stokes Company published. But the Stokes Com
Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., concurred in separate memorandum.
Concurrence Opinion
I concur. It was contended that there was injury in that the name of the plaintiff was not associated with his work by the publishers. But there is no provision therefor in the contract. I think there is no implication of such right when a contract is silent, especially when the work is of the character of an encyclopedia. But this contract is not only silent, but specifically provides that the work is “at present entitled Stokes’ Encyclopedia of Music.” The name of an editor is not necessarily a part of the title. (See Crookes v. Petter, 3 L. T. Rep. [N. S.] 225, which is also an authority upon the general proposition.)
Interlocutory judgment reversed, without costs, and new trial granted, costs to abide the event.