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

36 N.Y.2d 803, 369 N.Y.S.2d 707, 330 N.E.2d 654 (1975)

 

RULE:

The 15 percent royalties were to be computed in the reference. The reference was also to determine whether the author was damaged, and whether the 15 percent royalties on the books represented the equivalent of damages for breach of contract in the failure to promote the author's books.

FACTS:

Plaintiff author of a series of books filed an action against defendant publisher. The trial court entered a modified judgment that directed defendant to account to plaintiff, as an item for the calculation of damages, for all sales of copies of books on the same subject, authored by others. Upon such accounting, judgment was to be entered in favor of plaintiff for 15 percent of the retail list price of all copies of those sold. In prior appeals, both the appellate division and the court affirmed the modified judgment. Defendant filed a motion to correct the modified judgment to exclude the 15 percent royalties. The trial court denied the motion. On appeal, the appellate court affirmed the trial court's denial of the motion. Defendant further appealed, and the court affirmed the appellate court's order.

ISSUE:

Was the 15% rate to be applied to the sales of plaintiff author’s books to be computed and accounted in the pending suspended reference?

ANSWER:

Yes.

CONCLUSION:

Under the law of the case, the 15 percent royalties were to be computed in the reference. The reference was also to determine whether the author was damaged, and whether the 15 percent royalties on the books represented the equivalent of damages for breach in the failure to promote the author's books.

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