Supreme Court, Appellate Term, December, 1914. [Vol. 88.

second cause of action, defendant sets up the Statute of Frauds.

Defendant also claims error by the court in refusing to let defendant go to the jury on the question as to whether the draft on the Rhode Island Contract Engineering Company was given by defendant and accepted by plaintiff in full payment of plaintiff's claim against defendant; also that the judgment in Rhode Island having been given for a special purpose and by confession could not be sued upon in this state; that the court also erred in the exclusion of testimony.

Taking the evidence and the inconsistent allegations in the answer together with the claim that the draft was given and accepted in payment, it was not sufficiently established to warrant an affirmative verdict of the jury. The attempt to establish such a fact would be contradicting the judgment which was recovered subsequently to the time the draft was given. There is no legal force in the claim that the judgment could not be sued upon in this state, because of the alleged prior agreement or understanding. In the absence of fraud the judgment is conclusive. Greene v. Hallenbeck, 32 Hun, 469; Dustan v. Higgins, 138 N. Y. 70; Schwabe v. Herzog, 161 App. Div. 712.

The negotiations for this confession of judgment were made through defendant's counsel. He was presumably informed of the elementary rule laid down in the cases above cited as to the conclusiveness of judgments.

There is no evidence to support the defense of the Statute of Frauds or to defeat the second cause of action.

Had the court admitted the testimony which defendant claims it was error to exclude the result would probably have been the same.

Misc.]

Supreme Court, Appellate Term, December, 1914.

The case disclosed that defendant has received merchandise for which it has not fully paid; that the proceedings in the state of Rhode Island instituted by plaintiff against the Rhode Island Contract Engineering Company were for the equal benefit of the defendant and plaintiff; that defendant consented thereto and virtually made the plaintiff its agent in an attempt to collect a debt due the defendant.

Even should the judgment be reversed, it is apparent that a new trial would inevitably result in favor of the plaintiff which has never been paid for the merchandise of which the defendant has had the benefit. Substantial justice has been done.

LEHMAN and DELANY, JJ., concur, on the ground that no competent evidence has been produced which can negative or limit the binding effect of the judgment pleaded.

Order affirmed with costs.

JULES E. BRULATOUR, Appellant, v. COMET FILM COMPANY, Respondent.

(Supreme Court, Appellate Term, First Department, December,

-

1914.)

Contract action for goods sold and delivered - when order denying motion to set aside verdict and for new trial reversed.

Where plaintiff's claim in an action for goods sold and delivered was admitted and the reply denied defendant's counterclaim and the evidence failed to show that the agreement upon which it was based was made with defendant, a judgment in favor of defendant and an order denying plaintiff's motion to set aside the verdict and for a new trial will be reversed as against the weight of and contrary to the evidence.

Supreme Court, Appellate Term, December, 1914. [Vol. 88.

APPEAL from a judgment of the City Court of the city of New York entered in favor of defendant for $280.13, and from an order denying plaintiff's motion to set aside the verdict and for a new trial.

Graham & Stevenson (Archibald Ewing Stevenson, of counsel), for appellant.

Robert H. Elder (Otho S. Bowling, of counsel), for respondent.

WHITAKER, J. The action was brought by the plaintiff against the defendant to recover for goods sold and delivered, amounting to $770 and interest. The plaintiff's claim was admitted.

Defendant sets up a counterclaim for $1,500 and alleges in support thereof that about the year 1911 defendant entered into an agreement with plaintiff whereby plaintiff agreed, in consideration of defendant's promise to co-operate with plaintiff and with certain other manufacturers of motion picture films in the production, manufacture and marketing of a certain series of motion pictures depicting current events and known as the "Animated Weekly," that plaintiff would pay to defendant one-eleventh of the profit and income derived from such production and marketing; that defendant duly entered upon the performance of said agreement and duly performed the same on its part; that the said series of motion pictures was for a considerable time produced and marketed, from which plaintiff received large profits in excess of $16,500; that by reason thereof plaintiff became indebted to defendant in the sum of $1,500, which plaintiff refused to pay after the same had been demanded of him.

Misc.] Supreme Court, Appellate Term, December, 1914.

The plaintiff replied to this counterclaim, denying it. The questions tried before the trial court were as to whether there was such a contract and the amount of money which defendant was entitled to recover thereunder.

The defendant conceded upon the trial that its share of the earnings of plaintiff under the contract was not over $1,000, and the question as to whether there was a contract having been submitted to the jury it returned a verdict for defendant for the difference between plaintiff's claim of $770 and the $1,000 claimed by defendant.

The plaintiff-appellant claims that this verdict was against the weight of evidence and that there was a failure of proof of the counterclaim; also that the conduct of the defendant's attorney upon the trial was of such an improper character as to have prejudiced the jury.

The only witness for the defendant in support of the counterclaim was one William B. Gray, president of defendant, who testified that about sixty or ninety days after January 1, 1911, a meeting was held at the office of the Motion Picture Distributing and Sales Company, at which Mr. Gray, Mr. Brulatour, the plaintiff, McGee, Kessler, Ohs, Miles, and several other directors of the Motion Picture Distributing and Sales Company and men not connected with the sales company were present; that a number of the manufacturers claimed that their sales had been affected because some other manufacturer had placed on the program of the sales company a picture of some topical subject which had interfered with their own sales; that Mr. Brulatour who was the president of the sales company stated that he would finance a topical motion picture weekly to be called the "Animated Weekly," and that

Supreme Court, Appellate Term, December, 1914. [Vol. 88.

he would finance it for a percentage of its profits and that all the other manufacturers were to assist in making topical pictures; that the plaintiff stated that he would finance the picture and pay to the manufacturers who were at the meeting, and who were connected with the sales company, a pro rata interest of one-tenth of the profits if they would assist in making topical pictures, that is, pictures of current events of public interest, and let plaintiffs have the "Animated Weekly " to look after himself; that the manufacturers agreed to this and also agreed that the plaintiff, Mr. Brulatour, was to get twenty-five per cent. The witness was not sure whether plaintiff was to get oneeleventh over and above this twenty-five per cent. This witness also testified that the sales company was to receive $50 per week for marketing the "Animated Weekly." The witness also testified that in the spring or summer of 1911 he saw the plaintiff and that the plaintiff admitted that one-eleventh of the profits was between $1,000 and $1,100, and that Gray did not receive his share because the boys objected.

It appears from Gray's testimony for defendant that the stockholders of the Motion Picture Distributing and Sales Company were certain manufacturers of films of which the defendant, Comet Film Company,

was one.

The sales company acted as sales agent and distributor for these different manufacturing companies which owned all the shares of stock of the sales company. The profits, if any, were to be divided among the stockholders of the sales company.

The meeting at which this alleged contract was entered into was a meeting of the directors of the sales company, and was held either about February or March 1, 1911.