New York Polyclinic Medical School & Hospital v. King

27 Misc. 250, 57 N.Y.S. 796

• Court: New York Supreme Court
• Decided: April 15, 1899
• Status: Published

Opinion

McAdam, J.

The parties having elected to try this 'Cause as one for equitable relief, it will be disposed of accordingly. The plaintiff’s predecessor, the Hew York Polyclinic, entered into a contract with the defendant, in December, 1892, whereby the defendant undertook, at his own expense, the publication of a monthly journal of progressive medicine and surgery, under the title of “ The Hew York Polyclinic.” By the agreement, the right to the use of the name, “ Hew York Polyclinic,” was to remain in the plaintiff’s predecessor, and it reserved the right to prohibit the use of said name by the defendant in case he failed to carry out the terms of the agreement on his part, and the plaintiff succeeded to the right. The complaint alleges, and the answer admits, that said journal was to be published on the 15th of each month, and that at the time alleged in the complaint (September 29, 1898) neither the August nor September number had been issued. The fault in regard to the August number was owing exclusively to a dispute between the defendant and his printer at Danbury, Connecticut, in consequence of which the printer would ■ not furnish the work. This was matter with which the plaintiff had nothing to do, and for which the defendant is in law responsible. It is a settled rule that where a party by his own contract absolutely engages to do an act, he is bound to make it good, notwithstanding any accident or other contingency not foreseen by, or within the control of the party, unless this performance is rendered impossible by the act of God or of the law or of the obligee.' Harmony v. Bingham, 12 N. Y. 99; Tompkins v. Dudley, 25 id. 272; Dexter v. Norton, 47 id, 62; Wheeler v. Connecticut Mutual Ins. Co., 82 id; 543, 550; Lorillard v. Clyde,' 142 id. 456; Beebe v. Johnson, 19 Wend. 500. The plaintiff fully performed its part of the agreement, by furnishing thirty-two pages of editorial and' literary matter for the August number, and the duty of bringing out the August number on time devolved upon the defendant, and he has in no legal manner excused its- performance. It -is common knowledge that the failure -of a periodical to keep its numbers regularly before the public is death to. the enterprise and damaging to its good name. In consequence of this breach by the defendant, the plaintiff, by the terms-of the agreement, has the right to prohibit the further use.of the name “ HeW York Polyclinic ” by tbe defendant in connection with said journal. The defendant claims that the right to injunctive relief does not attach until there has first been an independent adjudication that there has been a. breach by the defendant. There is no merit in this contention. Hilliard on Inj., § 35. The right of injunctive relief depends, it is true, upon a breach by the defendant, and fails if there is none. But, when the breach is once established, as it has been Imre, injunctive relief follows almost as of course. ■ Ho other relief is ade-' quate. While the damages resulting from the Wrong may be large, they are of that peculiar character which are difficult, if not impossible, of legal ascertainment by proof, and the injury is not susceptible of being adequately compensated for in damages. The plaintiff’s title to the name and the right to control its use are conceded, and the agreement under. which the use was obtained by the defendant in express terms provides that' in case of breach by him, the further use may be prohibited, .which means' by process appropriate to that end, i. e., injunction; and the parties eyidehtly had this in mind, and contemplated, that in case of breách that remedy would be invoked. The defendant’s-counterclaim is without merit,' fails with the breach, and must be dismissed. The plaintiff is entitled to the injunctive relief prayed for.

Ordered accordingly.