Mail & Express Co. v. Hamilton Garment Co.

127 Misc. 604, 217 N.Y.S. 284, 1926 N.Y. Misc. LEXIS 1086

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 9, 1926
• Status: Published

Opinions

Delehanty, J.

The defendant contracted for the publication of its advertisement in the Evening Mail. The plaintiff by its own act, in the consolidation of the Evening Mail with the Evening Telegram, created an entirely different newspaper, both as to its policy and material form, and thereby destroyed the subject-matter in reference to which the parties contracted and prevented itself from carrying out the contract between the plaintiff and the defendant. It is common knowledge that there are numerous daily and evening newspapers published in the city of New York, each conducted under its distinctive policy as to the collection and dissemination of news, its advertising features, and general reading matter, for the purpose of soliciting subscribers from the public. Some of the main features of the Evening Mail were not continued in the consolidated newspaper and this might readily lead to the defendant’s advertisement not reaching the persons it contemplated when it made the contract for the insertion of the advertisement in the Evening Mail. The defendant had never advertised in the Evening Telegram. From the various evening papers it selected the Evening Mail as the one in which it deemed it most expedient from a business standpoint to insert the advertisement. The defendant had and has the right to determine in what newspaper it shall have the advertisement published. It contracted, it may be assumed, on the presumption that the Evening Mail would continue in existence under the same conditions and policies as were in force at the time it made its contract.

Judgment appealed from reversed, with costs, and judgment directed in favor of the defendant dismissing the complaint on the merits, with costs.

Lydon, J., concurs.