Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Co.

44 A.D.2d 412, 355 N.Y.S.2d 415, 1974 N.Y. App. Div. LEXIS 4992

Opinions

Lane, J.

Hayden Publishing Co., Inc. has once again moved this court for relief already denied by Special Term, as well as our court, the Court of Appeals and the Supreme Court of the United States.

The issue now reargued before us is whether the measure of damages included in the interlocutory judgment should be disturbed. That judgment, as modified, directed that “ the Defendants Hayden Publishing Company, Inc. and Hayden Book Company, Inc. shall account [as an item for the ascertaining and calculation of damages] to the Plaintiff for all sales and transfers or other disposition of copies of ‘ Electricity One-Seven ’ and ‘ Electronics One-Seven, ’ as hereinabove defined, and for all rights that have been transferred or licensed, and for the proceeds and benefits derived from the sale, licensing, transfer or other disposition of copies of ‘ Electricity One-Seven ’ and ‘ Electronics One-Seven ’ (as defined above) and of rights therein; and upon such accounting from the total or totals the Plaintiff shall have judgment against the Defendants Hayden Publishing Company, Inc. and Hayden Book ¡Company, Inc. in the amounts ¡(¡plus appropriate interest) of fifteen per cent (15%) of the retail list price of all copies of ‘ Electricity One-Seven ’ and ‘ Electronics One-Seven ’ (as hereinabove defined) sold or transferred”.

At each appellate level defendants ’ argument, that this measure of damages was erroneous, has been rejected.

We are therefore at this juncture in no position to correct or modify that which has become the law of the case (cf. Hornstein v. Podwitz, 229 App. Div. 167, 169; Michalowski v. Ey, 8 A D 2d 854, 855, affd. 7 N Y 2d 71).

Furthermore, the interlocutory judgment originally entered clearly set forth the measure of damages and need not be amended (cf. 13 N. Y. Jur., Damages, §§ 38, 113).

Judge Cabdozo in a not dissimilar situation stated: “An account of profits presupposes some approximate relation of correspondence, a causal relation not wholly unsubstantial and imaginary, between the gains of the aggressor and those diverted from his victim [citations omitted] ” (Underhill v. Schenck, 238 N. Y. 7,17).

Here, too, the measure of damages is a reflection of the royalty agreement between the parties as proven by actual sales and now sent back for a determination of the exact damages. It is not a speculative measure but one grounded on an actual agreement and provable by actual sales.

Accordingly, the order of the Supreme Court, New York County, entered July 24, 1973, denying defendants’ motion to correct an interlocutory judgment, should be affirmed, with costs and disbursements.