223 A.D. 388 | N.Y. App. Div. | 1928
The action is brought to recover one-third of the gross receipts which plaintiff claims are his due in a joint venture entered into between the plaintiff and the defendant. The judgment appealed from was upon the verdict of a jury upon a second trial of the issues. The plaintiff obtained a verdict at the first trial and the judgment entered thereon was unanimously reversed by this court on appeal, upon the ground that the verdict of the jury was against the weight of the evidence. (220 App. Div. 156.)
The plaintiff testified that for twenty or more years prior to the making of the alleged contract with the defendant he had been engaged, under the nom de plume of T. C. Bigelow and doing business under the trade name of New York Illustrated Press Association, in obtaining photographs of people of prominence in this country and throughout the world for sale to newspapers and periodicals as they might require the same, and in supplying news matter and news photographs of prominent people to newspapers and magazines. Plaintiff testified that on or about February 8, 1922, he entered into a verbal contract with the president of the defendant corporation whereby the defendant agreed to give plaintiff office room in its studio and to furnish the apparatus for taking photographs and to photograph people of prominence produced by the plaintiff; that the negatives of such photographs should be the property of the plaintiff, although they were to be left indefinitely at the defendant’s studio; that the plaintiff should receive shiny prints from the negatives for disposition to newspapers as he might see fit; that upon such prints there was to appear the advertisement of the Champlain Studios, Inc.; that all expenses of the taking of the photographs was to be borne by the defendant;
Defendant’s president denied that the plaintiff and defendant entered into any such arrangement as that to which the plaintiff thus testified. The defendant’s president testified that the plaintiff came to him out of work, stating that he had been unemployed for five weeks, and asked the defendant’s president if he could not give him a position as clerk in his studio. The defendant’s president testified that he finally hired the plaintiff as general helper in and about his studio and for the purpose of soliciting customers, at a salary of thirty-five dollars a week, which salary the plaintiff was regularly paid each week. Defendant’s president also testified at the trial as to the loans made by defendant to plaintiff during his service, and that payments upon such loans were made in small amounts by deductions from the plaintiff’s weekly salary of thirty-five dollars.
The testimony presented a sharp question of fact between the plaintiff and the defendant’s president, the plaintiff testifying as to the making of the contract of joint venture, and defendant’s president denying the same in all respects. The jury was called upon to determine which was telling the truth. In the opinion of this court upon the
The contract upon which the plaintiff depends was oral, no note or memorandum thereof being in writing subscribed by the party to be charged therewith or by its lawful agent. The contract, according to the testimony of the plaintiff, was in no event to be performed until after the expiration of two years, at which time, the plaintiff testified, the defendant was to account to him and he was
The judgment appealed from, therefore, should be reversed, with costs, and plaintiff’s complaint dismissed, with costs.
Dowling, P. J., Martin, O’Malley and Proskauer, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.