#### Leander J. De Bekker, Respondent, *v.*Frederick A. Stokes Company and The University Society, Incorporated, Appellants.

Second Department,

June 11, 1915.

Contract—contract for publication of encyclopedia under established name —breach of contract by allowing publication in connection with other volumes under a new name — injunction — damages.

Plaintiff and the defendant Stokes Company made a contract for the publication of a work to be prepared by the plaintiff under the name “ Stokes’ Encyclopedia of Music.” It was stipulated that the company should copyright the work in its own name and publish it in such style and manner as it should deem expedient and at such time or times as it should see fit. After specifying compensation to the plaintiff for ordinary sales it was further provided that should the publishers desire to sell the work by subscription, mail order, premium, special advertising or other similar methods, they should have the privilege of purchasing the complete rights for’ such special sales for the sum of $150. *453After selling the work in the regular way the Stokes Company undertook to make sales by subscription not as its pwn publication but under an arrangement with the defendant University Society that the work in the form of two volumes should be published by the society in connection with eight other volumes under the name of “Encyclopedia of Music.”

Held, that the plaintiff has the right to insist that the defendant publish the two volumes under the name of “ Stokes’ Encyclopedia of Music; ” That the Stokes Company was not authorized to confuse the volumes prepared by the plaintiff with the publication of the University Society, although there was no intention to ascribe the plaintiff’s production to the editor in chief of the larger work;

That the plaintiff under the facts presented is entitled to judgment restraining the defendants from publishing the work under their contract and limiting the publication of the Stokes Company under the name agreed upon by the parties, and that if plaintiff be paid the stipulated percentages on the copies sold, based on the usual retail prices, full justice will be done.

Appeal by the defendants, Frederick A. Stokes Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1914, upon the decision of the court after a trial at the Kings County Special Term.

The judgment decreed, among other things, an accounting between the parties.

*Frederick Trevor Hill,*for the appellants.

*Harold G. Aron [Stephen L. Vanderveer*with him on the brief], for the respondent.

Thomas, J.:

In July, 1907, the plaintiff and the Stokes Company made a contract concerning a work for which they established the name *“*Stokes’ Encyclopedia of Music.” The work at the outstart was treated as existing, and the plaintiff was in terms related to it as author and proprietor, a characterization which may not now be impugned, nor is it proper to question the merit of the production, in view of the preface with which the Stokes Company introduced it. If the work at the time of the contract was existent at all it was incomplete for publication, and for that purpose the plaintiff agreed to have it ready in eight monthly installments, beginning September 1, 1907. It *454was stipulated that the Stokes Company should copyright the work in its own name, and that it should publish it “in such style and manner as they shall deem expedient and at such time or times as they shall see fit.” The contract provided, “ The Author hereby bargains, sells, grants, conveys, transfers and sets over unto the * * * Stokes Company, the sole and exclusive right and privilege to print, publish and put on the market the said Work during the whole term of its copyright and all the renewals thereof in the United States, * * * in the Dominion of Canada, and elsewhere. The Publishers shall also have all rights of translation, abridgment, dramatization, selection, and other rights of, in, or to said Work in the United States, * * * the Dominion of Canada, and elsewhere, and all other rights not given to the Author by this contract.” The compensation provided for the author was $500 and five per cent on the catalogue price for all copies sold in the United States in the regular trade way. It was further provided that should the “Publishers desire to sell the Work * * * by subscription, mail order, premium, special advertising, or other similar methods — they are to have the privilege of purchasing the complete rights for such special sales for the sum of $150.” There was an option reserved to the plaintiff to purchase copies of the work on hand and the plates, should the publisher wish permanently to discontinue publication, and also, in case the publisher declined to exercise an option given it to reproduce the plates rendered useless by fire, it was its duty to reconvey the copyright and all rights granted, whereupon the contract should terminate. • The first effort of the publisher was :to sell the work in the regular trade way with the result that the Stokes Company credits plaintiff with the following sales: January 1, 1909, 609 copies; January 10, 1910, 285 copies; January 9, 1911, 233 copies; January 8, 1912, 129 copies; January 13, 1913, 100 copies.

The Stokes Company, concurrently with sales in the usual trade way, undertook to sell the work by subscription, not, however, as its own publication and under the name of the Stokes’ Encyclopedia of Music and Musicians, under which name the Stokes Company published. But the Stokes Com*455pany on October 5, 1910, arranged with the defendant The University Society, Incorporated, that the work in the form of two volumes could be published by the society in connection with eight other volumes under the name of Encyclopedia of Music. Pursuant to that agreement the Stokes Company was entitled to a royalty of twenty cents for each copy of the first edition and a diminishing percentage for subsequent editions, which the society was permitted to publish during the term of the contract, which was fixed at five years. Some 4,000 copies of the work were printed by the society, and in excess of 3,500 copies have been sold. It appears on the face of the account that in association with the other volumes of the society’s combined edition the sales have been accelerated, but the tenor of the agreement with plaintiff has not been kept. He has the right to insist that the Stokes Company should publish the book under the name of the “ Stokes’ Encyclopedia of Music,” however advantageous to him some other form of presentation to the public may be. He bound himself to “write or edit no other encyclopedia or dictionary of music or any similar work that will conflict with the sales of said Work,” and he preserved a residuary interest in the work. The plaintiff was recognized in the contract as an author; he has the strict right to preserve the identity of his creation and to insist that it shall be issued, if at all, by the Stokes Company. It may augment its circulation to combine it in sale with eight other volumes, but that obliterates its separate existence under a given name. The plaintiff was not entitled to have his own name appear in the book. There was no stipulation to expose the authorship. A name was chosen for the work. The parties are limited to it. Looking, then, to the agreement, I conclude that the Stokes Company was not authorized to confuse the volumes of the work in question with the publication of the society, although there was no intention to ascribe the plaintiff’s production to the editor in chief of the larger work, and I consider that it was not done. But there is implied the representation that Elson was the editor in chief of all the ten volumes, which *is*not the exact fact. What consequences embarrassing to the plaintiff might ensue is not apparent, but it is just to abide by the truth. The *456Stokes Company credited the plaintiff with $150 on the • theory that the sale was by subscription, but the sale was not such a sale of the book by subscription as the contract contemplated. . The judgment recovered is quite disproportioned to the offense, and is, I think, inequitable. It should be reversed and a new trial granted. Upon the present showing, the plaintiff would be entitled to judgment restraining the defendants from publishing the work under their contract and limiting the publication to the Stokes Company under the name agreed upon by the parties. If the plaintiff should be paid the stipulated percentages on the copies sold, based on usual retail prices, this record shows that full justice would be done. The allowance of the counterclaim is undisturbed. If the present record is not sufficient for that purpose, this court will send the matter to an official referee, unless the parties can agree upon the facts. As the defendants have necessitated the action, the plaintiff upon the present showing should have costs, but not of this appeal.

Carr, Stapleton and Putnam, JJ., concurred; Jenks, P. J., concurred in separate memorandum.

Jenks, P. J. (concurring):

I concur. It was contended that there was injury in that the name of the plaintiff was not associated with his work by the publishers. But there is no provision therefor in the contract. I think there is no implication of such right when a contract is silent, especially when the work is of the character of an encyclopedia. But this contract is not only silent, but specifically provides that the work is “at present entitled *Stokes’*Encyclopedia of Music.” The name of an editor is not necessarily a part of the title. (See *Crookes*v. *Petter,*3 L. T. Rep. [N. S.] 225, which is also an authority upon the general proposition.)

Interlocutory judgment reversed, without costs, and new trial granted, costs to abide the event.