92 N.Y.S. 1052 | N.Y. App. Div. | 1905
Lead Opinion
In this action the plaintiffs seek to perpetually enjoin the defendants from acting under or enforcing certain agreements between the defendants by which it was intended to maintain the retail prices of books, and to prevent competition in the sale thereof. The defendants demurred to the complaint. The demurrer was sustained at Special Term, but upon appeal to this court the judgment sustaining the demurrer was reversed (85 App. Div. 446, 83 N. Y. Supp. 271), and upon appeal to the Court of Appeals the reversal was affirmed (177 N. Y. 473, 69 N. E. 1107, 64 L. R. A. 701). The defendants then interposed an answer which alleged several affirmative defenses. To the second and third of these affirmative defenses thee plaintiffs demurred. The demurrer to the second affirmative defense was overruled, and to the third the defense sustained. From the interlocutory judgment overruling the demurrer to the second affirmative defense the plaintiffs now appeal. This defense is pleaded as “a second separate defense to the complaint herein,” and alleges that the agreement set out in the complaint was adopted on the 13th day of February, 1901; that certain amendments thereto were made from time to time, copies of the amended agreement being annexed to the answer, and finally, on the 13th of May, 1904, the agreement was further amended so as to apply solely to copyrighted books. The action being in equity, and the relief asked being an injunction against the defendants, restraining them from enforcing an agreement which it is claimed is in violation of public policy and of the statutes of this state making illegal certain combinations, the extent of the relief that will be granted is within the discretion of the court; and in such an action it is quite proper for a defendant to set up any facts happening either before or after the commencement of the action which bear upon or may affect the extent to which injunctive relief will be granted. Upon demurrer to an answer setting up facts upon which the defendant would ask the court, not to grant an injunction, but to leave the parties to their remedy at law; it would be manifestly
The plaintiffs insist that, as these facts are pleaded as a complete defense to the action, they cannot be sustained as a partial defense, under sections 507 and 508 of the Code. Section 507 of the Code provides that:
“A defendant may set forth, in his answer, as many defenses or counterclaims, or both, as he has, whether they are such as were formerly denominated legal or equitable. Bach defense or counterclaim must be separately stated and numbered. Unless it is interposed as an answer to the entire domplaint, it must distinctly refer to the cause of action which it is intended to answer.”
Section 508 provides that:
“A partial defense may be set forth, as prescribed in the last section; but it must be expressly stated to be a partial defense to the entire complaint, or to one or more separate causes of action therein set forth. Upon a demurrer thereto, the question is, whether it is sufficient for that purpose.”
I think it quite clear that this section was not intended to apply to an action in equity asking for discretionary relief, where a defendant sets up facts which he will ask the court to consider in determining the relief which will be granted. The plaintiff has a right to plead these facts as sufficient to justify the court in refusing to grant an injunction, and upon demurrer it cannot be said that facts which are sufficient to effect the relief will not be sufficient to defeat the cause of action. Just what effect these facts will have, must be left to be determined by the court when the action comes on to be tried upon the whole evidence. Sections 507 and 508 of the Code of Civil Procedure have clearer application to actions at law than to actions in equity which ask for discretionary relief.
Thompson v. Halbert, 109 N. Y. 329, 16 N. E. 675, relied on by the plaintiff, was an action to recover damages for a conversion. The
It follows that the interlocutory judgment appealed from must be affirmed, with costs, with leave to the plaintiff to withdraw the demurrer on payment of costs in this court and in the court below.
VAN BRUNT, P. J., and PATTERSON and McLAUGHLIN, JJ., concur.
Dissenting Opinion
(dissenting). This is a suit in equity to enjoin the defendants from continuing a combination in restraint of trade designed to control the retail book business by establishing and maintaining the prices at which copyrighted books published after May, 1901, should be sold at retail, and enforcing the rules of the association by refusing to sell books, whether copyrighted or not, to persons failing to observe the same, in violation of the anti-monopoly law of the state of New York. Subsequent to the decision of the Court of Appeals (177 N. Y. 473, 69 N. E. 1107, 64 L. R. A. 701) holding that the complaint stated a good cause of action as to the noncopyrighted books, but that a combination was not unlawful as to copyrighted books, without discriminating, as I think they should, between books of which the defendants are the owners of copyrights and those of which - they are not the owners, the defendants modified their agreement by confining it to copyrighted books. They thereupon obtained leave of the court, and served an amended answer setting up this fact, and that since thus modifying the agreement they had not undertaken to control the free sale of noncopyrighted books, as a separate defense to the action, without pleading the facts either as a partial defense or in mitigation. The plaintiffs demurred to this separate defense as insufficient in law. The demurrer was overruled, and the majority of the court favor the affirmance of the interlocutory judgment. I think it should be reversed. The facts pleaded as a separate defense in the amended answer, if established, will not necessarily deprive the plaintiffs of injunctive relief or require the dismissal of
For these reasons, I vote for reversal.