INDUSTRIAL RAYON CORP. v. TUBIZE CHATILLON CORP., 280 N.Y. 176 (1939)

20 N.E.2d 5

INDUSTRIAL RAYON CORPORATION, Respondent, v. TUBIZE CHATILLON CORPORATION, Appellant.

Court of Appeals of the State of New York.Argued December 7, 1938
Decided March 7, 1939

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Appeal from the Supreme Court, Appellate Division, First Department.

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William H. Davis for appellant.

Theodore Kiendl, Leslie Nichols and Porter R. Chandler for respondent.

Per Curiam.

The judgment entered upon the order of the Appellate Division and the decree of the Special Term are modified by striking all of the provisions of paragraph “1” from the decree except the direction for specific performance of the covenants contained in paragraph “14” of the license agreement dated December 15, 1933, by limiting recovery to overpayment by plaintiff of royalties to the period commencing January 1, 1934, and expiring December 31, 1935, under paragraph “2” of the decree, by making corresponding adjustments in paragraph “3” of the decree as to the amount to be credited under paragraph “1” of the supplemental agreement of December 15, 1933, as necessary, and by limiting the injunction provided for in paragraph “4” of the decree so as to enjoin the right of defendant to cancel the contract because of any alleged failure of plaintiff to perform the provisions thereof on its part to be performed to the period expiring December 31, 1935, and the case is remitted to Special Term to enter a decree accordingly. Except as so modified the judgment appealed from is affirmed, with costs to the appellant.

The period during which plaintiff was entitled to enjoy the terms of the contract between defendant and the Delaware Rayon Company, which have been adjudged to be

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more favorable than the terms accorded to the plaintiff by defendant in the contract of December 15, 1933, expired on January 1, 1936.

The judgments should be modified in accordance with this opinion and as so modified affirmed, with costs to appellant in this court and in the Appellate Division.

CRANE, Ch. J., LEHMAN, O’BRIEN, HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur.

Judgment accordingly.