Ingenue Communications, Inc. v. Dell Publishing Co.

Appellate Division of the Supreme Court of New York

Ingenue Communications, Inc. v. Dell Publishing Co.

49 A.D.2d 735, 373 N.Y.S.2d 140, 1975 N.Y. App. Div. LEXIS 10690

CourtAppellate Division of the Supreme Court of the State of New York

DecidedSeptember 30, 1975

StatusPublished

This text of 49 A.D.2d 735 (Ingenue Communications, Inc. v. Dell Publishing Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ingenue Communications, Inc. v. Dell Publishing Co., 49 A.D.2d 735, 373 N.Y.S.2d 140, 1975 N.Y. App. Div. LEXIS 10690 (N.Y. Ct. App. 1975).

Pincite

Opinion

Order, Supreme Court, New York County, entered on May 5, 1975, denying defendant’s motion for summary judgment, unanimously affirmed. Respondent shall recover $60 costs and disbursements of this appeal from appellant. There are fact questions, including the status of Mrs. Wynn at various stages of the preparation, editing and publishing of the April, 1973 issue of the magazine Ingenue, and whether the preparation thereof was solely under defendant’s control. There are also triable issues as to whether Mrs. Wynn’s knowledge of the contents of the April edition should be imputed to plaintiff and as to whether plaintiff waived its claim for damages by closing the sale of the subject magazine. "A waiver, not express, found in the acts, conduct or language of a party, is rarely established as a matter of law rather than as a matter of fact.” (Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37.) We agree with Special Term that the facts disclosed by this record mandate a [736]*736plenary trial. Concur—Kupferman, J. P., Lupiano, Tilzer, Lane and Nunez, JJ.

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Order, Supreme Court, New York County, entered on May 5, 1975, denying defendant’s motion for summary judgment, unanimously affirmed. Respondent shall recover $60 costs and disbursements of this appeal from appellant. There are fact questions, including the status of Mrs. Wynn at various stages of the preparation, editing and publishing of the April, 1973 issue of the magazine Ingenue, and whether the preparation thereof was solely under defendant’s control. There are also triable issues as to whether Mrs. Wynn’s knowledge of the contents of the April edition should be imputed to plaintiff and as to whether plaintiff waived its claim for damages by closing the sale of the subject magazine. "A waiver, not express, found in the acts, conduct or language of a party, is rarely established as a matter of law rather than as a matter of fact.” (Alsens Amer. Portland Cement Works v Degnon Contr. Co., 222 NY 34, 37.) We agree with Special Term that the facts disclosed by this record mandate a [736]*736plenary trial. Concur—Kupferman, J. P., Lupiano, Tilzer, Lane and Nunez, JJ.

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Bluebook (online)

49 A.D.2d 735, 373 N.Y.S.2d 140, 1975 N.Y. App. Div. LEXIS 10690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ingenue-communications-inc-v-dell-publishing-co-nyappdiv-1975.

Opinion

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