214 A.D. 455 | N.Y. App. Div. | 1925
Lead Opinion
The action grew out of the authorship and production of a play known as “ Cheating Cheaters.” Plaintiff’s intestate was an author and playwright of some experience and reputation. He conceived and originated the idea and plot of a play which he intended to write, involving two bands of crooks posing as respectable society people; neither band being aware of the character of the other, and the leading character being an attractive woman
The defendants answered separately, denying the material allegations of the plaintiff's complaint, and finally took the position that the .defendant Marcin was the sole originator and author of the play and that he had conceived and written it in every respect and that the plaintiff was not entitled to any share in the proceeds therefrom.
The issues came on for trial at Trial Term, and upon motion of the defendants, plaintiff’s complaint was dismissed. On appeal to this court (Ongley v. Marcin, 180 App. Div. 685) the judgment at Trial Term was reversed, and this court unanimously held that plaintiff’s intestate and the defendant Marcin were engaged in a joint venture, and that Marcin, in violation of his duty to his coadventurer and to the plaintiff, appropriated the play, the plot of which was originated by plaintiff's intestate, completed the writing thereof and claimed sole authorship thereof and ownership therein; that the defendant Woods co-operated with the defendant Marcin in producing the play in disregard of plaintiff’s rights; and that the plaintiff was entitled to an accounting as against the defendant Marcin. In the opinion of this court it was stated: “ Doubtless for the additional work performed by Marcin after
The order of reversal of this court directed a new trial of the issues. Thereafter, by stipulation of the parties, Hon. Edward W. Hatch, a former justice of this court, was duly appointed a referee to hear, try and determine all the issues of fact and law arising in said action. The matter was heard before ex-Justice Hatch and he made and filed his decision thereon, deciding that the contract between plaintiff’s intestate and the defendant Woods was not a contract for personal services of the plaintiff’s intestate, but was a contract to write and deliver a play, which was not abrogated by the death of Ongley; that plaintiff’s intestate and the defendant Marcin became and were engaged in a joint adventure in the writing of said play; that the defendant Marcin wrongfully and in violation of his duty as coadventurer and to the plaintiff as personal representative of her deceased husband, appropriated the play “ Birds of a Feather,” claiming the sole authorship thereof; that the defendant Woods, with full notice and knowledge of all the rights of the plaintiff and her intestate, wrongfully and in violation of said rights and interests connived and co-operated with the said defendant Marcin in appropriating and producing the play “ Birds of a Feather ” as “ Cheating Cheaters ” and as the sole creation and literary work of the defendant Marcin, and in advertising the said Marcin as sole author of said play and paying him all royalties from the production thereof; that the said defendant Marcin had no right, title or authority to sell, transfer or assign to the defendant Woods the said play or any interest therein to the exclusion of the plaintiff from participation therein as the representative of her deceased husband. The learned referee also found that the plaintiff was entitled to judgment and that the defendants, and each of them, should account for the moneys and profits made and •received by each of them as royalty or otherwise from the production and presentation of the play “ Cheating Cheaters; ” and that the defendants “ pay over to the plaintiff her just and lawful proportion of the royalties accruing from the production and presentation of said play, as the same may be determined by the final judgment of the court herein.” The learned referee upon such decision directed that an interlocutory judgment be entered and “ that the final judgment therein determine and adjudge the amount of the recovery, or proportion of the profits which has accrued and been received by the defendants * * * which shall be awarded to and paid to the plaintiff and the portion accruing from future productions thereof shall be awarded to and paid to her, and that
I do not think it can be said that the interlocutory judgment herein in anywise precluded the defendant Marcin from thereafter asserting his claim. On the contrary, the whole matter of the accounting between the parties was left open for further determination when the claim of Marcin might be passed upon under such evidence as might be presented, and when the plaintiff might be awarded the “just and lawful proportion of the royalties,” as
There is no dispute as to the amount of the royalties received, as the account thereof was stipulated at the trial before the last referee. The referee found that, under the account as rendered by the defendant Woods and corrections made, the royalties and revenues due to the estate of Ongley and the plaintiff, less $500 advance royalties paid by Woods to Ongley, amounted to the sum of $28,915.72; and that Woods was indebted to the plaintiff in that amount, with compound interest. The referee also found that Woods’ liability for said amount was secondary to that of the defendant Marcin to the extent of $24,731.17, with compound interest, and that for the difference after the addition of compound interest to each of the principal sums, Woods was primarily liable to the plaintiff; that when he paid'to Marcin the aforesaid $24,731.17, Woods knew that the money was payable to the plaintiff and that Marcin claimed and received it for himself and not for or on account of the plaintiff, and that in making the payments Woods colluded with Marcin to defeat the plaintiff’s rights; that the difference between $28,915.72 and $24,731.17, or $4,184.55, was the sum payable to the plaintiff which was retained by Woods. The referee stated the account with Marcin as follows: That he was indebted to the plaintiff in the sum of $24,731.17, with compound interest, and was entitled to no credits. The referee found as the aggregate sum to which the plaintiff was entitled the sum of $28,915.72, and that the plaintiff was entitled to interest on $24,731.17 thereof at six per cent per annum calculated with annual rests upon each item from the date of its receipt by the defendant Marcin to the date of entry of final judgment.
The court in making the order appealed from, in an opinion rendered, held that the referee had exceeded his authority in making
The court at Special Term, by the order appealed from, on refusing to confirm the report of the referee, referred the matter to Hon. M. Warley Platzek, an official referee, to take and state the account between the parties. We are of the opinion, for the reasons hereinbefore stated, that the court below properly sent the accounting to a new referee. Inasmuch as the amount of royalties received and for which an accounting is to be had is agreed upon, the duties of the official referee will not be onerous, all that need be litigated being as to the work done by Marcin following Ongley’s death, for which he should be compensated, and the amount which he should be allowed therefor, thereby enabling the referee to determine the just proportion of the accrued profits to which the plaintiff is entitled.
The order appealed from, in so far as it sets aside the referee’s
Dowling and McAvoy, JJ., concur; Clarke, P. J., and Martin, J., dissent.
Dissenting Opinion
This is an action in equity for an accounting and an injunction. Upon the first trial the complaint was dismissed upon the opening. The judgment rendered thereon was reversed by this court in 180 Appellate Division, 685, and a new trial ordered. The new trial was had before the late former Justice Edward W. Hatch, as referee, who made a decision in favor of the plaintiff. Said decision contained the following conclusions of law:
“ 1. That the contract between George Byron Ongley and the defendant, Al H. Woods, dated January 20, 1915, and set forth in the.Seventh finding of fact hereof is not a contract for the personal ervices of said Ongley, but is a contract to write and deliver a play and it was not abrogated by the death of said Ongley. * * *
“ 3. That plaintiff’s intestate, George Booth Ongley (George Byron Ongley) and the defendant, Max Marcin, became and were engaged in a joint adventure in the writing of the play referred to and described in the foregoing findings of fact.
“ 4. That the defendant, Max Marcin, wrongfully and in violation of his duty to his co-adventurer and to the plaintiff as personal representative of the latter, appropriated the play ‘ Birds of a Feather ’ claiming the sole authorship thereof.
“ 5. That the defendant, Al H. Woods, with full notice and knowledge of the rights and interests of plaintiff and her intestate, wrongfully and in violation of said rights and interests, connived and co-operated with the defendant, Max Marcin, in appropriating and producing the play ‘ Birds of a Feather ’ as 1 Cheating Cheaters ’ and as the sole creation and literary work of the defendant, Max Marcin, and in advertising said Max Marcin as sole author of said play and paying him all the royalty accruing from the production thereof.
“ 6. That the defendant, Max Marcin, had no right, title, or authority to sell, transfer or assign to the defendant, Al H. Woods, the play ‘ Birds of a Feather,’ or any interest therein and exclude
“ 7. That the plaintiff is entitled to judgment; that the defendants and each of them account for the moneys and profits made and received by each of them, as royalty or otherwise, from the production and presentation of the play ‘ Cheating Cheaters,’ and pay over to the plaintiff her just and lawful proportion of the royalties accruing from the production and presentation of said play, as the same may be determined by the final judgment of the Court herein; enjoining and restraining the defendant, Al H.' Woods, from hereafter paying to the defendant, Max Marcin, any money, as royalty or otherwise, received or accruing from the production and presentation of said play, ‘ Cheating Cheaters,’ and enjoining and restraining the defendant, Max Marcin, from receiving any of such money from the defendant, Al H. Woods, or from any other person; enjoining and restraining the defendant, Al H. Woods, from hereafter advertising, or causing to be advertised, the name of the defendant, Max Marcin, as sole author of the play ‘ Cheating Cheaters,’ and directing that in all advertising of said play hereafter, and in all advertising used in connection with the production or presentation of said play in relation to the authorship thereof the names of both George Booth Ongley and the defendant Max Marcin shall appear as authors.
“ I direct that an interlocutory judgment be entered accordingly, with costs of the action, which are hereby awarded to the plaintiff against the defendants, to be taxed and entered in the final judgment; that the final judgment therein determine and adjudge the amount of the recovery, or proportion of the profits which has accrued and been received by the defendants from the production of the play ‘ Cheating Cheaters,’ which shall be awarded to and paid to the plaintiff and the portion accruing from future productions thereof shall be awarded to and paid to her.”
Judgment was entered thereon directing that the defendants and each of them account to the plaintiff for the moneys and profits received by each of them as royalty or otherwise from the production and presentation of the play “ Cheating Cheaters ” and that the defendants and each of them pay over to the plaintiff herein her just and lawful proportion of the royalties accruing from the production and presentation of said play, as the same may be determined by the final judgment of the court herein.
In his opinion the learned referee stated: “ The result of the conclusion arrived at in these cases seems to establish that the plaintiff is entitled to an accounting of the profits which have been made from the production of this play. The Appellate Division
In my opinion the interlocutory decree settled the facts and the law of this case and the only matter thereafter open was the taking of the account in pursuance of the provisions of the interlocutory judgment. Thereafter an order was entered appointing a referee to take the account as provided for in that interlocutory judgment. The figures were presented to the referee and he made a report which the learned Special Term has set aside and made a new order of reference. I think this was error and that the court should have corrected the account so far as two matters were concerned which presented questions of law only. The referee allowed compound interest. We find no warrant in law for this and the account should have been corrected in that regard. He also certified that it was a difficult and extraordinary case and ordered an extra allowance of $1,800. This he had no authority to do. Application for an extra allowance could only have been granted by the court and it was not within the province of the referee to do more than certify that in his opinion it was a difficult and extraordinary case. The attempt was made before him to retry questions which in my opinion were finally decided by the interlocutory judgment, and the order setting aside the referee’s report and ordering a new reference is for the purpose of taking evidence of matters which in my judgment were completely and definitely settled by the interlocutory judgment. I think an end should be put to this litigation. It already has been very costly and long drawn out. The court can and should correct the two errors pointed out in the report of the last referee. I dissent from the affirmance of the order appealed from and vote to correct the referee’s report as indicated, and, as corrected, to affirm the same.
Martin, J., concurs.