Opinion
June 22, 1937.
Appeal from Supreme Court of New York County.
Frederick W.R. Pride of counsel [ Ethan A. Hitchcock with him on the brief; Hughes, Schurman Dwight, attorneys], for the appellant.
Joseph F. Finnegan of counsel [ Leon Lauterstein, Emanuel Dannett with him on the brief; Leon Lauterstein, attorney], for the respondent.
Present — MARTIN, P.J., GLENNON, DORE, COHN and CALLAHAN, JJ.
We are of the opinion that there is ample evidence in the TXcord to sustain the verdict of the jury in favor of plaintiff, and that it was error to set it aside. While it is true that the defendant introduced proof to show that the idea used in its 1934 Christmas advertising campaign was originated and developed by its own advertising department independently of plaintiff, there are many inconsistencies and circumstances in defendant's case which cloud the testimony with suspicion. The issue on this score, therefore, was strictly one of veracity, and it was the jury's province to determine wherein the truth lay.
The exceedingly fair attitude of the plaintiff from the outset of this controversy, in offering to drop the matter, if proof were furnished him that defendant's advertising department originally conceived the idea, indicated that his claim had a basis in fact and was not advanced as an afterthought.
Furthermore, the jury was warranted in finding that the originality and novelty of plaintiff's idea was not disproved by the documentary evidence introduced by the defendant.
The judgment should be reversed with costs, and the verdict of the jury reinstated.
Judgment unanimously reversed, with costs, and the verdict of the jury reinstated.