FIRST DEPARTMENT, OCTOBER TERM, 1898.

[Vol. 33. serve a supplemental answer setting up its entry. The rule is well settled that unreasonable delay in interposing such a defense is a sufficient ground for its exclusion. (Medbury v. Swan, 46 N. Y. 200; Holyoke v. Adams, 59 id. 233; Beach v. Reynolds, 53 id. 1; Spears v. The Mayor, 72 id. 442.) It is said that the trial court gave the respondents leave to serve this supplemental pleading. This, however, is an inaccurate view of what was done there. The trial court simply gave the respondents leave to make such application on the subject as they might be advised. It did not attempt to forestall the judgment of the Special Term upon whatever application the respondents might see fit to make. We do not know precisely what transpired at the trial, but there is absolutely nothing in the record to indicate that the respondents were relieved from their then existing laches on this particular head.

The real claim of the respondents is that, conceding their laches as to the judgment, there was no laches as to the vacatur. Again their points are clear and precise. "In the answering affidavit of plaintiff's attorney," they say, "laches are urged as an objection to the granting of the motion. But there were no laches. The defense set up in the supplemental answer did not accrue until the entry of the order of vacatur, and the motion was made six days after that time. It is true that the defendants might have set up the entry of the judgment against Smith as a defense, and did not do so. But this ought not to preclude them from interposing a different defense which accrued subsequently."

It is apparent, therefore, that the sole question is whether the vacation of the judgment constituted a defense. The theory, and the only theory, upon which it is claimed to constitute a defense is, that it released Smith. But how did it release Smith? The judgment was not satisfied thereby, nor was any of Smith's property released. Certainly, he cannot claim to be released by the vacatur. He stands precisely He stands precisely as if no judgment had ever been entered against him. As to him it is, to quote again from the order," as if the same (the judgment) had never been entered." If Smith cannot say that he has been released by the vacating of a judgment which was inadvertently entered against him, surely the respondents cannot. There is really nothing in this proposed defense. It is frivolous, as well as grossly inequitable, and the respondents

App. Div.]

FIRST DEPARTMENT, OCTOBER TERM, 1898.

should not have been permitted to interpose it. The case is quite within the principle laid down in Citizens' National Bank v. Weston (81 Hun, 84.) There the plaintiff's attorney by inadvertence or mistake entered judgment against one of several joint debtors. Learning of his mistake, he applied to the court to vacate the judgment, which was done. Leave to set up the entry of this judgment by way of supplemental answer was denied at Special Term, and the denial was affirmed by the General Term. The court, DWIGHT, P. J., said: "But we think the motion was properly denied, because the inclusion of the defendant William Weston in the entry of the judgment was merely inadvertent, and the judgment against him was vacated as soon as the mistake was discovered and before any prejudice to the other defendants, the appellants here, could have resulted therefrom." We think, therefore, that the order appealed from should not have been granted. It is accordingly reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars

costs.

VAN BRUNT, P. J., RUMSEY, PATTERSON and O'BRIEN, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

STANDARD AMERICAN PUBLISHING COMPANY, Appellant, v. THE METHODIST BOOK CONCERN in the City of New York and HENRY W. KNIGHT, Respondents.

Contract for the sale of an exclusive right to sell a certain book

rent the violation of the contract.

-

injunction to pre

A party to whom a publishing company has sold the right to print and sell for three years from plates, maps, charts and illustrations owned by the company a certain book, the contract providing that the publishing company will not make a similar agreement with any other parties nor sell the work itself from the plates, except in a manner specified in the contract, is entitled to an injunc tion against such company and against a person with whom it has entered into a contract, under which the plates of the book in question were sold to such person without any limitation of the right to use them, restraining the sale of the book in a way not permitted by the first-mentioned contract.

FIRST DEPARTMENT, OCTOBER TERM, 1898.

[Vol. 33. An assignee of the party with whom the first contract for the use of such plates was made is also entitled to such an injunction, although the assignment to him does not comply with a condition of a provision contained in such contract conferring the right to assign it (it being claimed that the contract was one in its nature not assignable), where it appears that the publishing company, after having acquired knowledge of the assignment, permitted the assignee to proceed with the performance of the contract and to incur considerable expense and liabilities in connection therewith, and that the party with whom the publishing company made the second contract was aware of such facts long before the execution of such contract.

APPEAL by the plaintiff, the Standard American Publishing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of July, 1898, dissolving a preliminary injunction heretofore obtained by the plaintiff and denying the plaintiff's motion to continue said preliminary injunction, and also from an order made at the New York Special Term and entered in said clerk's office on the 13th day of July, 1898, amending the aforesaid order.

Frederic R. Kellogg, for the appellant.

Josiah T. Marean, for the respondents.

RUMSEY, J.:

This action is brought to restrain the violation by the defendant, the Methodist Book Concern, of a contract made with one Walter M. Jackson, by which the defendant corporation sold to Jackson the right to print and sell for three years from September 1, 1896, the People's Cyclopædia of Universal Knowledge, from plates, maps, charts and illustrations then owned by the Methodist Book Concern, and further agreed to give to Jackson an option to continue the contract for further periods of one year each until September 1, 1904. The Methodist Book Concern further agreed that it would not make any similar arrangement with any other parties, nor sell the work itself from the plates during the continuance of the agreement, except in a manner more particularly specified in that agreement.

The complaint alleges that this agreement was assigned by Jackson to the plaintiff, the Standard American Publishing Company.

App. Div.]

FIRST DEPARTMENT, OCTOBER TERM, 1898.

It further alleges that on the 10th day of March, 1898, the defendants, the Methodist Book Concern and Henry W. Knight, entered into a contract by which all the plates of the People's Cyclopædia of Universal Knowledge were sold to Knight, without any limitations of the right to use them, and that Knight was proceeding to print large editions of that book for distribution among other people in a way which was not permitted by the contract between the book concern and Jackson. The plaintiff, at the time of commencing the action, procured an injunction restraining Knight from delivering, or permitting to be delivered, any copy of the book to any persons except in the manner and to the persons provided for by the contract between the Methodist Book Concern and Jackson, and further restraining Knight from manufacturing or causing to be manufactured, or from receiving, selling or otherwise disposing of copies of said work in any manner whatever. An order to show cause was made why this temporary injunction should not be continued, and upon the hearing of that order the court refused to continue the injunction and vacated it, and from the order thus vacating it, this appeal is taken.

It cannot be disputed that by the contract between the Methodist Book Concern of one part and Jackson of the other part, that corporation was precluded, during the existence of this contract, from a sale of the People's Cyclopædia of Universal Knowledge, except in the manner specified in that contract, which was at the prices at which that corporation then sold it, and by subscription through canvassers or general agents. Jackson had bought from the corporation the sole right to sell the book, except in certain portions of the United States, and, so far as the book concern might see fit, to sell it by subscription through canvassers and general agents. Nor can it be disputed that when the Methodist Book Concern entered into a contract with Knight by which the plates which it was bound to use in printing the editions for Jackson were sold to Knight, and which did not limit Knight as to the manner of sales or the persons to whom or the prices at which he should sell, it was substantially a violation of its contract with Jackson by which it had limited itself as to the manner of sales and the price. If other conditions existed which made the case proper for an injunction, it is quite clear that these facts were sufficient foundation for the equitable interposition

FIRST DEPARTMENT, OCTOBER TERM, 1898.

[Vol. 33. of the court. (Standard Fashion Company v. Siegel-Cooper Company, 30 App. Div. 564.)

It needs no argument to show that the contract between Knight and the other defendant, if carried into effect, would be exceedingly injurious to Jackson, who had acquired this valuable right from the Methodist Book Concern at a considerable expense. Nor is it necessary to argue that Jackson himself would have been entitled to an injunction to restrain the violation of his contract. The case just cited is a sufficient authority, if authority were needed. But it is objected on the part of the defendants that the plaintiff has no standing to enforce this contract as an assignee of it, because it is said that the contract was not assignable in its nature, and that if it had been assignable the right of Jackson to assign it was especially limited by the agreement between himself and the Methodist Book Concern, and this contention of the defendant was the one adopted by the learned justice at Special Term, who vacated the injunction upon the ground that the plaintiff had not acquired any rights by the attempted assignment of the contract of Jackson. We do not propose to discuss the question whether the contract was one in its nature assignable, because, in our judgment, the disposition of this appeal does not require a determination of that question. A provision was made in the contract by which Jackson was permitted "to assign any part of this agreement to other parties whom he may desire to associate with him in the sale of these books." Under the circumstances which have been shown to exist, the plaintiff acquired a right under the assignment pursuant to this provision of the contract which the court is bound to protect. It appears that the contract was made on the 19th day of June, 1896. The assignment to the plaintiff was made by Jackson in the spring of 1897, but what precise date does not appear. It does appear, however, that at once after receiving the assignment the plaintiff undertook the performance of the contract and proceeded to procure the books to be printed by the Methodist Book Concern in pursuance of the contract, and to make provisions for their sale. It is said, and such appears to be the fact, that after receiving an assignment of the contract this plaintiff expended a considerable sum of money in providing for carrying on the business, and now maintains a large and expensive organization and equipment for the sale of the work, and that