28 Misc. 2d 359 | N.Y. Sup. Ct. | 1960
Defendant General Music Publishing Company, Inc., had assumed and acted upon its claim of right to the subject musical composition by virtue of the assignment to it by one Norman Span as the claimed writer. Plaintiff Duchess Music Corporation and, through it, others had assumed and acted upon the claim of right to exploit the composition of one Harry Thomas. Defendant General instituted an infringement suit against the plaintiff Duchess and others, which resulted in discontinuance by a stipulation of discontinuance and settlement. General’s claim arose out of Span’s assignment, dated April 2,1957 and the affidavit of Span, dated March 22, 1957. The action was settled in April, 1959. Thereafter there was claimed discovery of the alleged fact that General had no basis of claim of right in the work, for prior to April 2, 1957 Span had made assignment of his rights to another by a document, dated February 25,1955. Upon the basis of that discovery, this action was brought to set aside the settlement agreement on the ground of mistake of fact or fraud. Defendant General now moves for summary judgment dismissing the complaint.
It clearly appears that all the parties to the prior action having a concern in the uninterrupted and undisturbed exploitation of the composition without loss of realizable profit had engaged in the compromise agreement and that pursuant to the arrangement as thereby provided there has been full operation of the copyright and without eviction or interference in the use by any paramount title. In fact, by the agreement General undertook to hold plaintiffs harmless against claim by Norman Span, his representatives or assigns. The present claim is that the source of this defendant’s copyright by assignment had nothing to give to General at the time of such assignment. There is no contention that any of the parties to the prior action made any mistake as to any fact known to them or considered in reaching the compromise or in reducing to writing the agreement reached or that any belief in reliance upon facts as stated or reduced to writing resulted from a representation known to be false. In fact, in defense of the prior action, this plaintiff urged acquisition of the basic right some two years before it is now claimed that Span had parted with his rights to another before his assignment to General. Moreover, it is conceded that General’s acquisition was never the subject of any negotiations which led to the settlement and thus the claims made in the prior action were alone the basis for the settlement as reached enabling the
In Sears v. Grand Lodge of A. O. U. W. (163 N. Y. 374) the action was upon an agreement composing a disputed claim. One Charles B. Baumgrass became a member on July 31, 1886 and received a certificate providing for the payment of the sum of $2,000 to his wife in the event of his death. He disappeared on December 28, 1886. After a lapse of nine years, the wife brought an action against the defendant, which was settled on March 26, 1896. The defendant had undertaken to pay to the plaintiff $666 promptly “ not to be returned in any event.” The balance was placed in escrow until July 1, 1897 upon the condition that if before that time the defendant produced reasonable proof that the insured was alive, the money so deposited was to be returned to it and, failing such proof, plaintiff * ‘ shall take full title to the same.” Before payment of the sum of $666 and 20 days after the execution of the agreement, the insured was proved to be alive. The action was brought to recover the sum of $666. The court stated that the material facts were that the insured disappeared absolutely; that the beneficiary waited nine years and then brought action to recover the total insur
Quoting from section 849, of Pomeroy, Equity Jurisprudence, the court said further at page 379: “‘It should be carefully observed that this rule has no application to compromises, where doubts have arisen as to the rights of the parties, and they have intentionally entered into an arrangement for the purpose of compromising and settling those doubts. Such compromises, whether involving mistakes of law or fact, are governed by special considerations.’ ”
The court further stated:
‘ ‘ The agreement was in furtherance of a lawful compromise, and enforceable without regard to the validity of the beneficiary’s claim under the original certificate of insurance.
“ Compromises of disputed claims fairly entered into are final, and will be sustained by the courts without regard to the validity of the claims.”
The motion is granted.