Tams v. Witmark

Leventritt, J. The defendants demur to the complaint in am. action brought to recover' damages for the infringement of plaintiffs’ property rights in a certain operetta composed by Johann Strauss and known as “ The Queen’s Lace Handkerchief.” The ground of the demurrer is that the complaint does not state facts-sufficient to constitute a cause of action and the chief-defect urged! is an insufficient allegation of title. After setting forth the original sole ownership in the composer the plaintiffs allege that they “ duly acquired and became the exclusive owners of the right to produce and perform the said operetta in the Unlteti [294] States of America and the exclusive owners of said operetta and of the whole thereof, including the words, music, libretto, manuscript, score, stage directions, title and name of all performing rights and rights of production thereof and the right of leasing and vending the same throughout the United States of America-.” The defendants claim that by reason of the allegation of prior ownership in Strauss it was incumbent on the plaintiffs to specify how they derived title, whether by purchase, operation of law or otherwise. This criticism, sound perhaps, to support a motion for a bill of particulars, has no force on demurrer. The literary property here in suit is personal property and is governed by the same rules of transfer as other personal property. Palmer v. De Witt, 47 N. Y. 532. As such it is sufficient to allege that the plaintiffs are the owners of the operetta, score, words, music, libretto, or to allege that these are the property of the Vaintiffs. Phillips Code PL, § 325; Bliss Code PL, § 229; Dambmann v. White, 48 Cal. 439. In this case the allegation of ownership is one of fact, not a conclusion of law (Caspar v. O’Brien, 15 Abb. Pr. [N. S.] 402), and would have sufficed in the absence of an averment of prior ownership in Johann Strauss. Setting out that original title does not convert the declaration of the acquired title into a conclusion of law, but it remains a statement of fact sufficient to admit of proof by the plaintiffs as to how they acquired the property. The .-authorities cited by the defendants have reference to choses in .-action where a different rule as to allegation of title prevails. 'There the transfer must be alleged as otherwise the title and the ¡right of recovery would appear not to be in the plaintiffs. Phillips Code Pl., § 325; Thomas v. Desmond, 12 How. Pr. 321. The defendants also assail the sufficiency of the allegations with' reference to the wrong committed. After pleading that the defendants did “ wrongfully rent and furnish and deliver to sundry persons, societies and corporations for production and per-formance * * * a copy or copies of the said operetta,” etc., which were used in performances given against the protest of the ■plaintiffs and in violation of their rights, they add the words M under the guarantee of these defendants to save harmless the said societiés, persons and corporations from all claims and damages of plaintiffs.” The defendants urge that this allegation is •insufficient to charge them as tort-feasors under the guaranty. [295] Their liability as such, however, is independent of the alleged guaranty and this part of the pleadings may be disregarded as the other act charged would, if proved, make the defendants answerable in damages to the plaintiffs. The demurrer must be overruled, with leave, however, to the defendants to answer upon payment of costs. Demurrer overruled, with leave to answer upon payment of costs.