De Bekker v. Frederick A. Stokes Co.

172 A.D. 960, 157 N.Y.S. 576

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 15, 1916
• Status: Published

Opinion

Per Curiam :

Upori the reargument the conclusion is reached that the sixteenth finding of fact should be .reversed, and it is found: “That the plaintiff has been damaged by the publication of the work pursuant to the contract between the defendants.” The first conclusion of law is reversed, and it is decided: “That the contract made by the defendant Stokes Company with the University Society on October 5th, 1910, was made in violation of the plaintiff’s rights under his contract with the defendant Frederick A. Stokes Company and was entered into without the knowledge, consent or approval of the plaintiff herein, and was a breach of the contract of July 19, 1907.” The second, third, fourth, fifth, seventh and eighth conclusions of law are reversed. It is decided: “ That the plaintiff is entitled to final judgment against the defendant Frederick A. Stokes Company for the amount found due plaintiff on said accounting, but the defendant Frederick A. Stokes Company is entitled to be credited upon such accounting with the sum of §600 advanced by it to the plaintiff upon the contract of August 30th, 1908,” and, “That plaintiff is entitled to judgment against the defendants, and each of them, for such damages as flow from the breach of the contract.” It is further decided that the plaintiff is entitled to receive royalties as prescribed by the contract on sales to the entry of the interlocutory judgment herein, and that the defendant Frederick A. Stokes Company should account for the same. The former opinion is modified so far as it directs different disposition of the appeal or method of accounting or ascertainment of royalties or damages. As the plaintiff has not appealed from the judgment, the court’s direction as to costs is unaffected. The interlocutory judgment should be modified to conform to the findings as amended, and as so modified affirmed, without costs. Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred. Interlocutory judgment modified, on reargument, in accordance with opinion, and as so modified affirmed, without costs. Order to be settled before Mr. Justice Thomas.