104 N.Y.S. 1099 | N.Y. App. Div. | 1907
This action is brought to recover about $800 royalties alleged to be due the plaintiffs under an agreement with one Raymond, by which he was given the exclusive.license to produce a certain play in the United States and Canada, and furnished for that purpose “ the manuscripts, scores, music, musical numbers, music parts and orchestrations ” of such play. According to the allegations of the complaint, Bonheur, after he was. appointed trustee in bankruptcy of Raymond, acting under such agreement, produced the play and thereupon became obligated to pay royalties to the amount for which judgment is demanded. The amended, answer denies the material allegations of the complaint, except the appointment of Bonheur as trustee in bankruptcy of Raymond, and then as a separate and distinct" defense, and as a counterclaim, alleges in substance ■the appointment of the defendant as trustee and that prior to such appointment Raymond was engaged in producing the play referred to in the 'complaint at the time and places therein stated, and under the agreement therein referred to;. that Raymond entered into the agreement by reason of fraud and misrepresentations prácticéd upon him by the plaintiffs, "to- the effect that “ Outcault was the'- author, inventor and designer” of the play and that the plaintiffs had the. exclusive ownership; that the plaintiffs did not, nor did either of them, have the title or ownership of the play, or of the trade mark or copyright, nor was either of them the author, but that the same
Nor are the facts .pleaded sufficient to establish a counterclaim. Neither Baymond nor his trustee, while producing the play under the license and permission from the plaintiffs, can question plaintiffs’ right to receive the royalties stipulated in-the contract. This can only be done by surrendering the license and giving back to the plaintiffs what has been received from them. (Saltus v. Belford Co., 133 N. Y. 499.)
The judgment appealed from, therefore, must be reversed, with costs, and the demurrer sustained, with costs, with leave to the defendant to serve an amended answer on payment of the costs in this court and in the court below. ■
Patterson, P. J., Laüghlin, Houghton and Soott, JJ., concurred.
. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to defendant to amend on payment of costs-in this court and in the court below.