278 A.D. 931 | N.Y. App. Div. | 1951
Lead Opinion
The contract between the parties, while perhaps at variance with the usual pattern of contracts between author and publisher, is a complete and unconditional grant by the plaintiff to the defendant of the right to publish the plaintiff’s literary works in book form, in such style and manner as the defendant shall deem expedient and at such time or times as it shall see'fit, in consideration for an outright fixed payment, with the specific provision that no further money shall be payable or paid to the plaintiff on earnings on such works in volume form in America or Canada. We see no triable issue on plaintiff’s claim to additional payments on account of reprinted issues, and the defendants’ motion for summary judgment should have been granted.
The order appealed from is reversed, with $20 costs and disbursements to appellants, and the motion for summary judgment granted and judgment is directed to be entered herein dismissing the complaint, with costs to defendants.
Dissenting Opinion
(dissenting). Essential issues of fact are involved which require a trial of this action and Special Term properly denied defendants’ motion for summary judgment. Among those issues is the distinction recognized in the contract and, plaintiff alleges, in the trade between the broad right of original publication in book form and the special reprint right to republish cheap editions.
Moreover, it is not disputed that the provisions of the contract form authorizing the publisher to publish cheap editions were expressly deleted before execution. Further, the nature of the numerous payments eoneededly made by defendants also presents issues of fact.
Accordingly, I dissent and vote to affirm the order denying defendants’ motion for summary judgment.
Peek, P. J., Yan Yoorhis, Shientag and Heffernan, JJ., concur in Per Curiam opinion; Dore, J., dissents and votes to affirm, in opinion.
Order reversed, with $20 costs and disbursements to the appellants, and the motion for summary judgment granted, and judgment is directed to be entered dismissing the complaint herein, with costs to the defendants. Settle order on notice.
