
    Frank D. Gilroy, Respondent, v American Broadcasting Company, Inc., et al., Appellants.
    Argued February 7, 1979;
    decided April 3, 1979
    
      POINTS OF COUNSEL
    
      Philip R. Forlenza, Clarence Fried and Rafael pastor for American Broadcasting Company, Inc., and others, appellants.
    I. Having failed to prove any damages by competent, nonspeculative evidence, plaintiff may only recover nominal damages. (Freund v Washington Sq. Press, 34 NY2d 379; Hewlett v Caplin, 275 App Div 797; Broadway Photoplay Co. v World Film Corp., 225 NY 104; Bernstein v Meech, 130 NY 354; Carnera v Schmeling, 236 App Div 460; Cutting v Miner, 30 App Div 457; Moss v Tompkins, 144 NY 659; Lippincott Co. v Lasher, 430 F Supp 993; Baker v Hart, 123 NY 470; Slingerland v International Contr. Co., 169 NY 60; American Electronics v Neptune Meter Co., 33 AD2d 157.) II. In a field preempted by Federal copyright law, plaintiff had no right to invoke State law by claiming unfair competition and misappropriation. (Holmes v Hurst, 174 US 82; Dellar v Samuel Goldwyn, Inc., 150 F2d 612, 327 US 790; Detective Comics v Bruns Pub., Ill F2d 432; Warner Bros. Pictures v Columbia Broadcasting System, 216 F2d 945, 348 US 971; Tralins v Kaiser Aluminum & Chem. Corp., 160 F Supp 511; Gantz v Hercules Pub. Corp., 15 Misc 2d 1061; Matter of Hemingway v Random House, 53 Misc 2d 462, 23 NY2d 341; De Silva Constr. Corp. v Herrald, 213 F Supp 184; Sinatra v Goodyear Tire & Rubber Co., 435 F2d 711; Hebrew Pub. Co. v Scharfstein, 288 NY 374.)
    
      Stephen F. Huff and Sandra L. Grayson for Four Star International, Inc., and another, appellants.
    I. Since there is no evidence to support the award of the court below, plaintiff should only recover nominal damages. (Hewlett v Caplin, 275 App Div 797, 301 NY 591; Freund v Washington Sq. Press, 34 NY2d 379; Broadway Photoplay Co. v World Film Corp., 225 NY 104; Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205; 
      Story Parchment Co. v Paterson Parchment Paper Co., 282 US 555; Sheldon v Metro-Goldwyn Pictures Corp., 106 F2d 45, 309 US 390; G.R.F., Inc. v Board of Assessors of County of Nassau, 41 NY2d 512; Dunkel v McDonald, 272 App Div 267, 298 NY 586; Alexander’s Dept. Stores v Ohrbach’s, Inc., 269 App Div 321; Eastman Kodak Co. of N. Y. v Southern Photo Materials Co., 273 US 359.) II. The court below erred in awarding preverdict interest. (Brandt Corp. v Warren Automatic Controls Corp., 37 AD2d 563.) III. Any remand for a new trial should include the issues of liability and defendants’ cross claims. (Del Cerro v City of New York, 46 AD2d 898; Aetna Cas. & Sur. Co. v Garrett, 37 AD2d 750; Wessel v Krop, 30 AD2d 764.)
    
      Robert Ehrenbard, Charles E. McTiernan, Jr., and Arthur R. Lehman for respondent.
    I. The evidence was ample to support the jury verdict. (Story Parchment Co. v Paterson Parchment Paper Co., 282 US 555; Wakeman v Wheeler & Wilson Mfg. Co., 101 NY 205; Randall-Smith, Inc. v 43rd St. Estates Corp., 17 NY2d 99; Jones Co. v Burke, 306 NY 172; MacGregor v Watts, 254 App Div 904; Myers v Sea Beach Ry. Co., 43 App Div 573, 167 NY 581; Matter of Rothko, 43 NY2d 305; Bagley v Smith, 10 NY 489; Kaval Constr. Corp. v State Div. of Human Rights, 39 AD2d 347; Tobin v Union News Co., 18 AD2d 243, 13 NY2d 1155.) II. Plaintiff’s exclusive right in his literary property is protected from infringement under common law. (Sears, Roebuck & Co. v Stiffel Co., 376 US 225; Compco Corp. v Day-Brite Light, 376 US 234; Warner Bros. Pictures v Columbia Broadcasting System, 216 F2d 945; Goodis v United Artists Tel., 425 F2d 397; Matter of Hemingway v Random House, 23 NY2d 341; Chamberlain v Feldman, 300 NY 135; Palmer v De Witt, 47 NY 532; Columbia Broadcasting System v Documentaries Unlimited, 42 Misc 2d 723; Georgie Porgie Co. v Link, 332 F Supp 638; King v Mister Maestro, 224 F Supp 101.) III. The court below correctly awarded Gilroy preverdict interest from June 25, 1967. (Brandt Corp. v Warren Automatic Controls Corp., 37 AD2d 563; Phelps v A. R. Gundry, Inc., 23 AD2d 960; De Long Corp. v Morrison-Knudsen Co., 14 NY2d 346.) IV. This court has the power to and should restore the verdict or remit the case to the court below for further consideration because of pervasive and crucial errors of law. (Miller v Lucey, 223 App Div 567; Lane — Real Estate Dept. Store v Lawlet Corp., 28 NY2d 36; Haefeli v Wordrich Eng. Co., 255 NY 442; Matter of City of New York 
      
      [Fifth Ave. Coach Lines], 18 NY2d 212; O’Neill v New York, Ontario & Western Ry. Co., 115 NY 579; Wood v Webster Paper & Supply Co., 284 App Div 169; Varkonyi v S. A. Empresa De Viacao Airea Rio Grandense [Varig], 22 NY2d 333; Trippe v Trippe, 19 NY2d 944; Matter of Port Auth. Trans-Hudson Corp. [Hudson Rapid Tubes Corp.], 20 NY2d 457.)
   OPINION OF THE COURT

Per Curiam.

Consistent with past practice and explicit statutory prescription, we hold that a final judgment or order which is appealable by virtue of CPLR 5601 (subd [d]) brings up for review only the prior nonfinal order of the Appellate Division which is the predicate for the appeal (CPLR 5501, subd [b]; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 55; Buffalo Elec. Co. v State of New York, 14 NY2d 453). The final judgment entered in a court of original instance or an order of the Appellate Division which finally determines an appeal from such a judgment is not itself reviewable on such an appeal, unless that order or judgment, viewed separately, is appeal-able as of right under CPLR 5601 or by leave under CPLR 5602 (CPLR 5501, subd [b]).

The present litigation has followed a long and circuitous path. In 1965, plaintiff commenced this action, claiming that defendants appropriated his literary character, "Amos Burke”, and seeking punitive and compensatory damages. A trial was held in 1972, at which the Trial Judge dismissed the punitive damage claim and ruled that plaintiff was entitled to recover the profits derived from defendants’ use of the Burke character. However, the court refused to admit into evidence plaintiff’s expert testimony as to the market value of the literary property. The parties stipulated to the amount of profits, and both plaintiff and defendant took their first appeals.

Finding that the trial court had applied an improper measure of damages, the Appellate Division modified on the law and facts, and remitted for a new trial on the damage issue (hereinafter "the first Appellate Division order” [see 47 AD2d 728]). In addition, the court held that expert testimony could be introduced to establish the value of the misappropriated property.

At the second trial which followed in 1976, the court again dismissed the punitive damage claim, but submitted the issue of compensatory damages to a jury. A verdict was returned against defendants in the amount of $745,000. An amended judgment was entered thereon, and cross appeals ensued.

On this second appeal, the Appellate Division modified by ordering a new trial, unless plaintiff stipulated to a reduction of the verdict (hereinafter "the second Appellate Division order” [see 58 AD2d 533]). Plaintiff so stipulated in June, 1977 and a judgment for the reduced amount, $100,000, was entered in Supreme Court. Defendants duly filed notices of appeal to this court. As indicated by their briefs, they now seek a review of both the first and second Appellate Division orders.

Whatever the merits of defendants’ arguments, they are for the most part beyond our review. For although the final judgment of Supreme Court entered in June, 1977 is appeal-able to this court, only the first order of the Appellate Division is reviewable. Since defendants’ major contentions are addressed to matters disposed of by the second Appellate Division order, they may not be passed upon by this court.

Critical to our determination is the distinction between appealability and reviewability (see, generally, Cohen and Karger, Powers of the New York Court of Appeals, § 107, p 447). Without doubt, an appeal as of right lies from the final judgment of Supreme Court. But that judgment is not appeal-able in its own right. Rather, it becomes appealable by virtue of CPLR 5601 (subd [d]), under which an aggrieved party may appeal to the Court of Appeals "from a final judgment entered in a court of original instance * * * where the appellate division has made an order on a prior appeal in the action which necessarily affects the judgment * * * and which satisfies the requirements of subdivision (a) [of section 5601] * * * except that of finality” (CPLR 5601, subd [d]). Since the first order of the Appellate Division effected a substantial modification by which defendants were aggrieved, it satisfies the requirements of CPLR 5601 (subd [a]). As a result, the final judgment entered following the second appeal to the Appellate Division is appealable to this court (CPLR 5601, subd [d]).

This is not to say, however, that we may review every question of law which has arisen in the course of the action. To the contrary, our review power on a CPLR 5601 (subd [d]) appeal is narrowly circumscribed and reaches only the prior "non-final determination of the appellate division” upon which the appeal is predicated (CPLR 5501, subd [b]; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 55, supra; Matter of Town of Hempstead v Little, 22 NY2d 432, 436; see, also, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5601:6, p 499). In the present case, it is the first order of the Appellate Division which serves as the underlying basis for the CPLR 5601 (subd [d]) appeal, and hence that order alone which is reviewable. That defendants now request review of the second order does not give us license to ignore the established limits of our power. Neither does it divest us of power to dispose of that which is properly before us (Buffalo Elec. Co. v State of New York, 14 NY2d 453, 457, supra).

On the merits, defendants make a number of allegations of error with respect to the first Appellate Division order. We have reviewed those contentions and conclude that the order should be affirmed, for the reasons stated in the memorandum at the Appellate Division (47 AD2d 728).

Accordingly, the judgment appealed from should be affirmed, with costs.

Jones, J.

(dissenting). I cannot agree with the disposition made by the majority and am obliged to dissent. In my analysis, while defendants may not appeal to our court as of right from the second order of the Appellate Division (that entered on June 16, 1977), an appeal would lie by permission of our court. I would grant such permission and proceed to a disposition of that appeal on the merits.

A skeletal recitation of the procedural history of this litigation is necessary to an understanding of the posture in which the case now reaches us. Plaintiff asserts that he created the literary character of "Amos Burke”, a millionaire detective in a chauffeured Rolls Royce, the central character in his original screenplay entitled, "Who Killed Julie Greer?”, and that defendants have misappropriated his literary property. At the first trial in January, 1972, at the close of defendants’ case, the trial court dismissed the claim for punitive damages and held that the claim for compensatory damages, although clearly established, would be limited to defendants’ actual profits from the misappropriation. The parties then stipulated that such profits would be $15,000, and on January 28, 1972 a judgment for plaintiff was entered accordingly in Supreme Court, New York County.

On cross appeals, the Appellate Division by order entered March 5, 1975 (the "first Appellate Division order”) modified on the law and on the facts and remanded the case for a new trial only on the issue of damages, both punitive and compensatory (47 AD2d 728). The remand was based on what the Appellate Division concluded was the erroneous limitation of plaintiff’s recovery to defendants’ profits and the related erroneous exclusion of opinion testimony as to the reasonable value to plaintiff of the literary character Amos Burke.

On the second trial in March and April, 1976, the trial court again dismissed the claim for punitive damages and the jury returned a verdict against all defendants for compensatory damages in the amount of $745,000. Judgment was entered in Supreme Court on April 26, 1976 with interest from June 25, 1967. On a postjudgment motion this judgment was amended on October 20, 1976 to direct that interest be computed from January 25, 1975.

Again there were cross appeals. By order entered June 16, 1977 (the "second Appellate Division order”) the Appellate Division modified on the law and the facts and ordered a second new trial as to compensatory damages only unless plaintiff consented to a reduction of the verdict in his favor to $100,000 together with interest from June 25, 1967 and to entry of an amended judgment in accordance therewith, in which event the judgment, as so amended and reduced, was affirmed (58 AD2d 533). On June 30, 1977 plaintiff consented to this reduction and to the entry of the amended judgment. On the same date a third judgment for plaintiff was entered in Supreme Court in the reduced amount.

Defendants thereafter took timely appeals as of right to our court, explicitly reciting in their notices of appeal that they were appealing both from the second order of the Appellate Division and from the subsequently entered third judgment of Supreme Court. The case is presently before us on these appeals.

Examination of the notices of appeal and review of the briefs and oral argument disclose that the unmistakable intention of defendants is to seek our review, and hopefully our reversal, of the second order of the Appellate Division which, while reducing the amount of plaintiffs compensatory damages from the $745,000 figure fixed by the jury, nonetheless sustained a recovery in his favor of over $100,000. It is their argument that the award of damages must be set aside as wholly speculative, although they also deny any liability on an assertion of Federal pre-emption. The threshold question is whether the procedural means employed by them can serve to accomplish their objective; do they have an appeal as of right by means of which they can obtain our review of the second order of the Appellate Division?

In my analysis (quite aside from questions as to its "finality”, a subject shortly to be addressed) defendants have no appeal as of right from the second order of the Appellate Division (CPLR 5601). No such appeal lies under CPLR 5601 (subds [a] or [d]) because, while the order directed a modification in a respect which was both substantial and within the power of our court to review, defendants were not aggrieved thereby. Nor are subdivisions (b) or (c) applicable. Accordingly, were the present appeals by defendants taken to review only the second order of the Appellate Division such appeals would have to be dismissed on the ground that no such appeal lies as of right. There is, however, as the majority observes, an added aspect to the present appeals — it may be taken (because of the contention that common-law liability is precluded by pre-emption of Federal copyright law) that defendants seek review of the first order of the Appellate Division as well. On that basis, as the majority correctly concludes, the appeal, to the extent it seeks review of the first order of the Appellate Division, cannot be dismissed; an appeal does lie as of right. And with respect to such appeal, I, too, would affirm.

My difference with the majority is that in my analysis defendants’ appeals must be considered as seeking our review of both the first and the second orders of the Appellate Division. The attempted appeal from the second order of the Appellate Division should be recognized as discrete and separable, and inasmuch as there is no appeal as of right that appeal should be dismissed.

To treat the appeal as a single appeal, as does the majority, would necessarily bring up for review all issues raised and preserved by appellants, including their contentions as to error with respect to the second order of the Appellate Division which accordingly should be confronted and determined. Any question as to our authority to reach the merits of the second order surely turns on considerations of appealability, not reviewability. To interpret that portion of CPLR 5501 (subd [b]) which provides: "On an appeal pursuant to subdivision (d) of section fifty-six hundred one * * * only the non-final determination of the appellate division shall be reviewed” as limiting the scope of review to the ñrst nonfinal determination of the Appellate Division in unusual instances in which, as here, there are two nonfinal determinations of the Appellate Division is a distortion. The limitation of review, as I understand it, was intended only to exclude review of the final judgment entered in the court of original instance, here the Supreme Court judgment entered on June 30, 1977 (the formal predicate for the CPLR 5601, subd [d], appeal).

As indicated my preference would be to treat defendants’ notices of appeal as in effect having triggered two appeals— one from the first order of the Appellate Division, another from the second order of the Appellate Division. As to the former there should be an affirmance; as to the latter a dismissal.

I turn then to the question whether, following such a dismissal, an appeal would lie by permission from the second order of the Appellate Division, as to which the provisions of CPLR 5602 (subd [a], par 1) are determinative. At this point analytically the question of finality could be said to become relevant, not really to the ultimate outcome, but to the procedural path by which that outcome is to be reached. If the second order of the Appellate Division is deemed to be "final” in consequence of plaintiff's consent to accept the reduced verdict (compare, for instance, cases in which a new trial is directed on the issue of damages only and the parties thereafter fix the amount of such damages by stipulation, e.g., Nardelli v Stamberg, 44 NY2d 500; cf. Jewish Reconstructionist Synagogue of North Shore v Incorporated Vil. of Roslyn Harbor, 40 NY2d 158), then permission may be granted to appeal from that order itself under CPLR 5602 (subd [a], par 1, cl [i]). If on the other hand the second order of the Appellate Division is classified as "nonfinal” (whatever the rationale for such classification), then permission may be granted to defendants under clause (ii) of paragraph 1. In that event the appeal would be from the final judgment of Supreme Court, i.e., the third judgment of Supreme Court entered June 30, 1977, thereby to bring up for review the "nonfinal” second order of the Appellate Division — an order made on a prior appeal (the second appeal) which necessarily affects the final Supreme Court judgment. On either categorization of the second order of the Appellate Division, an appeal would lie by permission.

If it be taken, as I think is the case, that permission to appeal could be granted defendants so as to bring up the second order of the Appellate Division for review, I would note that on argument of the present appeal an oral motion was expressly made for such leave. Accordingly, confronted with the necessity to dismiss that portion of the appeals mistakenly taken as of right, I would forthwith grant leave to appeal and proceed on the present record, briefs and oral argument to a review of the second order of the Appellate Division on the merits. The dismissal of any portion of the present appeals without more would reopen the time for defendants to apply in the alternative for leave to appeal (CPLR 5514, subd [a]). If such an application were to be made and deemed timely, it does not appear that it would not be granted. That in turn would produce a second appeal to be fully briefed and argued, in all material respects similar to the present appeal, to be calendared some months from now. Such an eventuality would be needlessly clumsy, inefficient and costly.

In sum, I cannot accept the position adopted by the majority that there is no procedural means by which our court may recognize (and give effect if it be so disposed) to defendants’ desire for a review of • the second order of the Appellate Division. Such a conclusion runs counter to the grant of appellate jurisdiction vested in our court by Constitution and statute in cases such as this.

Inasmuch, however, as there is to be no review of the second order of the Appellate Division, it would serve no purpose here to address the substantive issues which would be confronted on such an appeal.

Chief Judge Cooke and Judges Gabrielli, Wachtler and Fuchsberg concur in Per Curiam opinion; Judge Jones dissents and votes to dismiss in part the appeal taken as of right, grant defendants’ oral motions for leave to appeal and review on the merits the June 16, 1977 order of the Appellate Division in a separate opinion in which Judge Jasen concurs.

Judgment affirmed, with costs. 
      
      . Defendants argue that this court has jurisdiction as to the first and second orders of the Appellate Division pursuant to CPLR 5601 (subd [a], par [iii]). However, both orders are nonfinal and therefore not appealable under CPLR 5601 (subd [a]). Moreover, appellants were not aggrieved by the modification effected in the second order, and could not appeal that order even if it were viewed as final.
     
      
      . We note that defendants’ motions for leave to appeal, made at oral argument, are untimely (CPLR 5513, subd [b]), and therefore dismiss them. Contrary to the suggestion in the dissenting opinion, the motions are not rendered timely by CPLR 5514 (subd [a]). That provision would apply only if we were to dismiss the appeal. Since the appeal is properly here, we see no reason to dismiss it.
     
      
      . While the order of the Appellate Division is denominated a "reversal”, in effect it is a modification; rejection of the claim for punitive damages was affirmed and a new trial was granted conditionally on the issue of compensatory damages only.
     
      
      . Plaintiff also sought leave to cross appeal, but his motion was dismissed on December 19, 1977 (43 NY2d 825) and his motion for reargument was denied on February 10, 1978 (43 NY2d 950). We all agree that plaintiff as a nonappellant has no standing to seek reinstatement of the $745,000 verdict of the jury on the second trial.
     
      
      . If in consequence of plaintiff’s consent to the reduction in compensatory damages the Appellate Division order were to be deemed an affirmance there would likewise be no appeal as of right under either subdivision (a) or (d) of CPLR 5601.
     
      
      . Inasmuch as permission may be granted to defendants to appeal by one course or the other to obtain our review of the second order of the Appellate Division — which is the target for which they really seek review in our court — having in mind the somewhat esoteric character of the procedural maze through which this opinion seeks to show a way, no sufficiently useful additional purpose would be served here by making a subcategorial, precise determination whether permission to appeal is properly to be considered on the basis that the second Appellate Division order is final or on the basis that it is nonfinal. Those are the only two alternatives, and under either one or the other permission to appeal could be granted by our court.
     