Citations
- 44 A.D. 454
Full opinion text
Patterson, J.:
The defendant, “ The American Queen, Incorporated,” was the proprietor and publisher of a monthly magazine, and in the month of July, 1898, it, through its manager, made a contract with the plaintiffs to insert in its magazine an advertisement of a manufactured article, for the sale of which the plaintiffs were sole agents. The article was known as Feder’s Pompadour skirt protector. The contract contemplated two things: First, the insertion of an advertisement of the plaintiffs’ wares for "a period of eighteen months; second, that the defendant named should refrain from publishing any advertisement for others than .the plaintiffs of skirt protectors or of skirt bindings with an edge similar to or resembling the edge of the Feder brush skirt protector. It is alleged in the complaint that the defendant, notwithstanding the terms of its contract with the plaintiffs, entered into an agreement with the Stewart', Howe & May Company (which was also made a defendant), to advertise in its magazine goods of that company ; that it was an advertisement of skirt protectors or skirt bindings with an edge similar to • or resembling the edge of Feder’s skirt protector; that the defendant refused to perform its agreement with the plaintiffs, who had furnished to the defendant the necessary matter for an advertisement to-be inserted it? the September, 1898, number or issue of the magazine, an.d that the defendant published its^September number without the plaintiffs’ advertisement, but with an advertisement of the Stewart, Howe & May Company’s competing goods. In the complaint it is also alleged that the defendant was preparing to issue a number of its magazine for the month of October, 1898, and that it refused to comply with its agreement for the exclusive publication of an advertisement of the plaintiffs’ wares, and insisted upon publishing an advertisement for the Stewart," Howe & May Company, and threatened in the future to insert the advertisement of that company, for the whole or a large part of the period of time covered by the plaintiffs’ contract; that the plaintiffs would be put to irreparable loss and. injury if the defendant were permitted to continue to break its contract, and to refuse to advertise the plaintiffs’ goods and continue to advertise the manufactures of the Stewart, • Howe & May Company ; and, therefore, the action was brought for the specific performance of both the positive and negative terms of the plaintiffs’ contract, and relief was asked of a permanent injunction restraining the defendant from publishing the Stewart, Howe & May Company’s advertisement, or any other advertisement than that of the plaintiffs, of articles such as they manufactured and which. were to be the subject-matter of the advertisement contracted for between the defendant and the plaintiffs.
Both the American Queen and the Stewart, Howe & May Company answered. On the trial the complaint was dismissed as to the latter company, because it was not shown that it was in any manner directly connected with a violation, either actual or intended, of the contract made between the American Queen and the plaintiffs. No question as to i¡hat ruling is now presented. The American Queen Company in its answer' admitted that it inserted in its September number an advertisement for the Stewart, Howe & May Company, substantially as alleged in the complaint, and sets forth that it entered into a contract in December, 1897, with the Stewart, Howe &-May Company, to continue during the years of 1898 and 1899, advertisements for that company. It then states that that contract is referred to as part of. the answer, but it does not appear in any way in connection with the answer, nor in evidence. . The American Queen Company further sets forth in its answer that in 1897 the plaintiffs entered into a contract with it to publish an advertisement of Feder’s brush skirt protector upon the condition that no advertisement of infringers upon or against the Feder skirt protector should be published in the defendant’s magazine during the term of the contract; and that ■on the 28th of July, 1898, negotiations were entered into between the plaintiffs’ agent and the defendant regarding an insertion in the -defendant’s publication of an advertisement of the Feder protector