134 N.Y.S. 655 | N.Y. App. Div. | 1912
The action is brought to recover damages for breach of a contract claimed to have been made January 21, 1908, by which defendant, the'publisher of two newspapers in the city of New York, known as UAraldo Italiano and Telégrafo, agreed that plaintiff should have the exclusive use, at his option, of 3,000 inches of space in either or both of said newspapers, at the price of twenty-eight cents an inch for plaintiff’s own advertisements and forty cents an inch for those of third parties procured by plaintiff. Plaintiff claims that he had made use of but 898 inches of the total amount reserved to him, when he tendered to defendant, between the 23d and 25th days of October, 1909, certain political advertisements aggregating 1,098 inches for which plaintiff was to receive the sum of $7,135, but which defendant refused to publish, to plaintiff’s damage in the sum of $6,696.80.
The original order was incorrect in form,, for it directed the examination of John Vicario, president of defendant, and not the examination of the party defendant by its president, which was the proper procedure. (Jacobs v. Mexican Sugar Refining Co., Ltd., No. 2, 112 App. Div. 658.) But this was an irregularity which was properly cured by the cotirt at Special Term by an amendment of the original order. (Meade v. Southern Tier Masonic Relief Association, 119 App. Div; 764.) The particulars as to which the defendant’s examination is sought are, however, too broad, and have no application to the issues as presented by the pleadings. Thereunder the plaintiff is bound to establish the making of the contract, its breach by defendant by its refusal to. accept the political advertising on the dates mentioned in the complaint (October 23 to 25, 1909), that plaintiff then had under his option a sufficient amount of -unused space in defendant’s newspapers to cover the advertising tendered, and the damage he sustained by reason of the breach.
The order appealed from must, therefore, be reversed with ten dollars costs and disbursements, and the application to modify the original order of examination granted, without costs, to the extent of directing the examination of the defendant by John Vicario, its president, upon the following
been charged by defendant against plaintiff’s said option down to the date last mentioned, with the amount of space allotted to him or to plaintiff, the date of each advertisement and the amount of space it occupied and the rate charged by defendant therefor.
Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion, without costs. Order to be settled on notice.