Opinion
December, 1904.
Louis J. Vorhaus, for the appellant.
David M. Neuberger, for the respondents.
The order appealed from provides that "all copies of said song both for vocal and instrumental purposes, and the words and music thereof in whole or in part shall be sold by the defendant, and that the sale of the same be only for cash." It also requires the defendant, weekly during the pendency of the action, to turn over to the receiver in cash all moneys so realized, and prior to or at the time of such payment to deliver an itemized statement of account, which shall be verified, showing the number and quantity of copies sold by the defendant and its agents during the previous week, "as well as the name and names together with the addresses of the persons, firms or corporations to whom the same shall have been sold; and that the said defendant shall afford to the said receiver and grant to him free and uninterrupted access to its said books and permit him without hindrance to inspect and examine the same fully and in detail concerning the said sales, and as to the number of copies of the said song in its different forms as well as to the said words and music which shall have been printed or caused to be printed by it." Then follows a provision enjoining the defendant from selling "for any purpose to any person excepting for cash and for no less than the usual prices received for compositions of the same or a like character in its business."
We think the order is too drastic and unnecessary. Before copyrighting the song or composition, the defendant sought of the plaintiffs information as to what rights, if any, they had with respect thereto but its letter remained unanswered. It thus appears that the defendant purchased the song or composition without exact knowledge as to what rights, if any, the plaintiffs had, and thereafter expended money in publishing the song; and it was only after it appeared that the sales were likely to be profitable to the defendant that this action was brought. In addition it appears that the defendant is responsible.
By the order appealed from the court has placed upon the defendant the burden and expense of printing and publishing the song with the possibility of loss, and has fixed the condition that it is not to be sold in the ordinary course of business upon credit but only for cash; and, by the requirement of furnishing weekly verified itemized statements and giving to the receiver the right to inspect the books at his pleasure, the business of the defendant has been practically placed under the supervision of a receiver.
We do not mean to say that a situation might not be presented when an order as drastic as this in terms might not be justified, but we think it should only be granted in cases where the plaintiff's right to final relief in the action is placed beyond cavil and where no other appropriate security is afforded to the plaintiff. Upon the merits we think it extremely doubtful as to the plaintiffs' right eventually to succeed. In the case of Stern v. Von Tilzer Music Publishing Co. (N.Y.L.J. Nov. 11, 1902), where a contract similar to those here presented was involved between the plaintiff therein and Brymn and McPherson, it was held that such contract was "unilateral and inequitable and it is doubtful whether it can be enforced in equity."
It will be noticed that the contract here with Brymn and McPherson left it optional with the plaintiffs whether they would or would not publish any of the compositions of these two men, and it gave to the plaintiffs the right to terminate it either in July or January upon giving thirty days' notice. The second contract with Brymn differs in that the plaintiffs agree to publish at least two of his compositions a year, but it will be noticed that it provides for the purchase by the plaintiffs of two songs, Brymn "to write and compose exclusively for said firm" for the unexpired period of about ten months of the former contract, which, is is stated, is ratified. The provision as to purchase seemingly imposed no further obligation upon the plaintiffs, nor were the defects of the first contract not cured. The contract with Hogan does not bind the plaintiffs to publish any of his future compositions.
We have no desire, however, to dispose of the merits of this controversy, which should be left until the trial, but we have stated enough to show that the question as to the plaintiffs' right to ultimately recover is by no means placed beyond doubt or cavil. We concur in the view of the learned judge at Special Term in denying the motion for an injunction and, with respect to the motion for a receiver, we think that should also have been denied. This was not a case for a receiver, and the most that plaintiffs were entitled to pendente lite was a bond or undertaking if there was any doubt of defendant's solvency or responsibility.
The order, accordingly, should be reversed, with ten dollars costs and disbursements, and the motion for the appointment of a receiver denied, with ten dollars costs.
VAN BRUNT, P.J., INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.