
    Gertrude Walker, Appellant, v. Edward Thompson Company, Respondent.
    
      Contract—contribution to a literary work — under what contract it must be satisfactory to the publishers.
    
    A publishing company, intending to publish a literary work over its own name, solicited contributions to the work under a contract containing, among others, the following clauses: “ The publishers reserve to themselves the right to reject the contribution, provided they do not consider it up to the proper standard. The further right is reserved to make such editorial .changes in the manuscript as are deemed necessary; this right extends to the rejection of any portion of the manuscript.”
    
      Reid, that the publishing company was entitled to arbitrarily reject a contribution, unless, perhaps, such rejection was with a fraudulent intent.
    A complaint in an action to recover damages for the breach of such a contract, which, in addition to alleging the tender and rejection of the contribution, further alleges that the article was fully equal in form and merit to any of the articles published by the defendant, and that said article was rejected by the defendant without reasonable cause, does not set forth facts constituting a cause of action.
    Appeal by the plaintiff, Gertrude Walker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of June, 1898, upon the dismissal of the complaint by direction "of the court after a trial at the New York Trial Term.
    
      Herbert H. Walker, for the appellant.
    
      John L. Hill, for the respondent.
   Van Brunt, P. J„:

This action was brought to recover damages on a written contract made between the defendant and one Herbert H. Walker and assigned by said Walker to the ¡Dlaintiff, wherein the said Walker agreed to write an article on False Representations and Deceit,” for a work which the defendants were publishing, called “ The Encyclopedia of Pleading and Practice.” The complaint set out the contract, which contained, amongst other things, the following clause: “ The publishers reserve to themselves the right to reject the contribution, provided they do not consider it up to the proper standard. The further if got is reserved to make such editorial changes in the manuscript as are deemed necessary; this right extends to the rejection of any portion of the manuscript. If additions are made to the article by the publishers’ editorial staff, the contributor is to receive no compensation for such additions. If, in the opinion of the publishers, alterations or changes in the manuscript are deemed necessary to make the article conform to the required standard, either in form or substance, and it is thought by them expedient to have such alterations or changes made under their immediate supervision by members of their editorial staff, the cost of such changes or alterations is to be deducted from the amount which otherwise would be due the contributor.” And also a further provision as follows: “ The contributor agrees that the publishers shall become the sole owners of the copyright, and no right of republication of the contribution in the same form or with alteration is reserved to the contributor.”

Tlie complaint fui'tliei' alleged performance by Walker of bis part of the contract and that the defendant rejected the article written by him, returned the same and refused to pay therefor; and, further, that said article when delivered was fully equal in form and merit to any of the articles published by the defendant in its said work, and that said article was rejected by the defendant without reasonable cause.

The defendant answered admitting the contract and denying performance upon the part of said "Walker. The answer admitted the receipt of an article from Walker, that it was returned and that they refused to pay therefor; and for a further and separate defense alleged, amongst other things, that the article was rejected by the defendants because they did not consider it to be up to the proper standard referred to in the contract.

The case coming on to be heard, a motion was made by the defendants to dismiss the complaint upon the ground that it failed to set forth facts sufficient to constitute a cause of action. This motion was granted and an exception was duly taken, and from the judgment thereupon entered this appeal is taken.

The appellant claims that the complaint was wrongfully dismissed because there was nothing showing that the respondent rejected the article on the ground that it did not consider it up to the proper standard; and, further, that the respondent had no right to reject the article if the same was not thought up to the proper standard; that that was a question to be determined upon the proofs which were offered upon the trial.

We think, however, that the case comes within the rule where the right to reject existed unless, perhaps, such rejection was with a fraudulent intent. The defendants were publishers of a book for which they were seeking contributions. The contract showed that they intended to have the absolute control of all such contributions^ and, further, that they reserved to themselves the absolute right to reject any contributions. As the work was to be published over their names they were responsible for its merit, and they only could determine whether the contributions were of such a character as they desired to adopt and publish.

The cases cited by the counsel for the appellant, such as Duplex Safety Boiler Co. v. Garden (101 N. Y. 387); Folliard v. Wallace (2 Johns. 395); City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475), and Miesell v. Globe Mut. Life Ins. Co. (76 id. 115), do not in any respect apply to the contract in question. The case of Duplex Gompany v. Garden related to a contract in respect to alterations to certain boilers which were to be paid for as soon as the defendants were “ satisfied that the boilers as changed were a success.” Here, of course, was a mechanical contrivance which was intended to perform certain work, and it could be easily ascertained whether the boilers, after the repairs, were capable of doing the work or not. The case of Folliard v. Wallace involved a question in respect to the title of certain real estate. The well-settled rules of law control the question as to whether the party should be satisfied with the title or not. The case of City of Brooklyn v. Brooklyn City Railroad Company related to a contract providing for the keeping of certain streets in repair, and as to all that class of cases where an architect’s certificate is required before payment for work can be demanded, it has been expressly held that such certificate cannot be arbitrarily refused. The case of Miesell v. Globe Mutual Life Insurance Company was an action upon a policy of life insurance, and the question was in regard to the certificate which had been furnished to the insurance company, and the court expressly refused to pass upon the question as to whether the company could arbitrarily reject the certificate. They say : “ It is needless to consider whether the proposition to the assured included a condition that the certificate should be satisfactory to the defendant.”’

The defendants in this case were publishing this work over their own names. Their reputation was at stake. They had reserved to-themselves the absolute right to reject contributions, and the whole of the contract shows that they intended to and did reserve to themselves the right to treat the articles of contributors as they might see fit. The article was intended to be a literary production, which the publishers of the book were to adopt and publish as their own, and it was for them to determine whether they were willing to have-the contribution form part of their work or not. An article in a. legal work is certainly as much a matter of taste as a suit of clothes. It was held in Brown v. Foster (113 Mass. 136) that where a suit of clothep was to be made to the satisfaction of the, employer he might arbitrarily reject the same.

We are of opinion that the judgment should be affirmed, with costs.

Barrett, Rumsey and O’Brien, JJ., concurred; Patterson, J".,, concurred in result.

Judgment affirmed, with costs.  