
    Edgar Saltus, Resp’t, v. The Belford Co., App’lt
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April 14, 1892.)
    
    1. Contract—Publication op author’s works—Copyright—Injunction.
    An action brought by an author against a publisher for breach of a contract to publish his works and to restrain such publication unless the terms of the contract are complied with, involves no question of copyright, and a temporary injunction may properly be granted.
    2. Same—Pleading.
    A copy of the contract need not be annexed to the complaint where there is no pretense but that defendant is fully informed as to its provisions.
    Appeal from order continuing injunction pendente lite.
    
    Action for an accounting under a contract, and for the abrogation of the contract. Plaintiff entered into a contract with the defendant company by which the company were to publish his works and pay him a royalty thereon, and as to one of them to procure him a copyright. The complaint alleged that defendant was publishing under the contract, but was violating its terms; that it was insolvent and unable to pay, and that each copy sold was a total loss to plaintiff.
    
      F. B. Kellogg, for app’lt; A. S. Hutchins, for resp’t.
   Yan Brunt, P. J.

The main ground upon which the appellant claims that the court erred in continuing the injunction herein is the claim that the plaintiff’s right to injunctive relief must, if it exists at all, be based upon a valid copyright owned by him upon the books in question, and that as the papers fail to sufficiently show that the plaintiff is the owner of a valid copyright upon the publication which he seeks to enjoin, such injunction should not be granted, and that if the papers do adequately show the existence of such copyrights it follows that the court has no jurisdiction to grant the injunction appealed from because the court would be powerless to restrain by injunction the publication of any infringing work.

It seems to us, as was said by the court below, that there is no question of copyright involved in this litigation. It seems to be a question as to whether the defendants have violated their contract with the plaintiff, and that he is therefore entitled to relief.

The allegations of the complaint set out the contract between the plaintiff and the defendant recognizing certain rights in the plaintiff, and the breach of the same by the defendant entitling the plaintiff to-certain relief. And this relief is entirely independent of the fact as to whether the plaintiff has or has not a copyright in the works being published by the defendants. No matter what may be the rights of all the world except the defendant, under the circumstances of the case, it appeared that by reason of the contract between the plaintiff and defendant, the defendant is entitled to continue the publication of the works therein mentioned only upon compliance with the terms of such contract. This is the agreement between the parties, and it is only for the enforcement of such agreement that the injunction in question is issued.

It is also claimed that as all the material equities alleged in the papers are met with denials of equal weight in the answer, that therefore the injunction should have been vacated.

It is to be observed that the denials are of such a character that although the allegations in the complaint might be substantially correct, yet the denials might be true. ' And it is further to be observed that the allegations in the complaint are fortified by a positive affidavit by a person who is not a party to the action, which affidavit is not denied except so far as it may be controverted by the formal denials contained in the answer. This would seem almost to be a confession that the substance of the affidavit ac least could not be gainsaid.

The claim that copies of the contract should have been annexed to the complaint is not well founded, as there is no pretense but that the defendants are fully informed as to the provisions of the contract in question.

The order should be affirmed, with costs.

O’Brien and Andrews, JJ., concur.  