Stipulation Waiving Certification. 190 IT IS HEREBY STIPULATED by and between the attorneys for the respective parties herein that the foregoing are true copies of the notice of appeal, the order appealed from and all the papers upon which the Court below acted in making the order appealed from, and the whole thereof, now on file in the office of the Clerk of the County of New York. 191 Certification thereof, in pursuance of Section 616 of the Civil Practice Act, is hereby waived. Dated, New York, March 7 . HENRY AMSTER and MILTON LIPSON GOLDWATER & FLYNN Attorneys for Plaintiff-Respondent 192 8823 To be argued by New York Supreme Court APPELLATE DIVISION—FIRST DEPARTMENT MUZAK CORPORATION, Plaintiff-Appellant, Defendant-Respondent. BRIEF FOR PLAINTIFF-APPELLANT Statement of the Case [Figures in parentheses refer to Record folios.] This is an action by Muzak Corporation, plaintiff-appellant, against Hotel Taft Corporation, defendant-respondent, to recover damages for defendant-respondent's breach of a written contract dated April 14, 1937 (21-36) as modified by a written agreement dated May 14, 1940 (3742). Although the said agreements were entered into by predecessor corporations of both plaintiff-appellant and defendant-respondent, each of them succeeded to the rights and obligations of their respective predecessors (by merger and operation of law) (14). The 1937 agreement provided for the leasing and installation by plaintiff-appellant of speci fied equipment in the Taft Hotel, owned by defendant-respondent and for the payment by defendant-respondent of (1) a rental of $600. per month for 54 months and $1.00 per year thereafter; and (2) a license fee of $100. per month for so long as defendant-respondent continued to use this equipment (hereinafter sometimes referred to as “the Muzak equipment”). The modification agreement of 1940 provided for (a) the delivery of a Bill of Sale transferring title to the said equipment from plaintiff-appellant to defendant-respondent; (b) the payment by defendant-respondent of $10,260. eo instante in place and stead of its obligation to pay, as rental, $12,000. for the remaining 20 months of the initial term of 54 months and $1.00 per year thereafter; and (c) for the continued payments by defendant-respondent of $100. per month license fee for the use of said equipment. From April 14, 1937 to May 14, 1940 and from May 14, 1940 continually up to and including August 31, 1952, defendant-respondent paid plaintiff-appellant each month the $100. license fee pursuant ot its agreement of 1937 and its agreement of 1940 (83). Subsequent to August 31, 1952 defendantrespondent failed and refused to pay said monthly license fee (84 and 127); although defendant-respondent concedes that it has not ceased to use, nor does it indicate any intention to discontinue use of the equipment (115) and notwithstanding that by contractual provision said license fee is required to be paid for such use. In fact, defendant-respondent admits it has used the Muzak equipment continuously throughout the period for which action was instituted to recover license fees (88-89). Accordingly, plaintiff-appellant instituted this action for damages in October, 1952. After trial before a Justice of the Municipal Court, judgment was entered in favor of plaintiff-appellant for the sum of $850., the monthly license fees which the Municipal Court found to be due and unpaid, from September 1, 1952 to April 14, 1953 (the last installment due prior to the date of trial). Statutory interest and costs increased the amount of said judgment to $928.88. The Appellate Term of the Supreme Court, First Judicial Department, reversed this judgment and directed judgment for defendant-respondent. The Appellate Term further denied plaintiff-appellant's motion for an order granting reargument or, in the alternative, permission to appeal to the Appellate Division of the Supreme Court, First Judicial Department. Plaintiff-appellant applied to the Appellate Division of the Supreme Court, First Judicial Department, for permission to take such appeal and said application was granted. Contract Provisions Directly at Issue The April 14, 1937 agreement (21-36) in the form of a letter written by defendant-respondent (identified in said agreement as “we”), to plaintiff-appellant (identified in said agreement as "you”), provides in part: “5. We agree to rent the equipment described above from you and to pay to you therefor a rental of $600.00 per month for the first fifty-four months of the term hereof, and a rental of $1.00 per annum thereafter, each installment of rental to be paid in advance. In addition we agree to pay to you, as a license fee for the use of such equipment, the sum of $100.00 per month, payable in advance. Should the number of space radio receivers be reduced to one, the other four transmitter channels to be supplied from telephone wires, the rental for the first fifty-four months will be reduced to $576.00 per month. If this is to be done we $ shall give you notice by April 24, 1937" (30-31). “7. This arrangement shall be for a period of fifty-four months from the date installation of such equipment is completed, and shall continue thereafter until terminated by us upon two months' prior written notice to that effect. In case of any failure on our part to turn over such equipment to you upon such termination, or in case we fail to comply with any of the terms and conditions hereof, you shall have the right to enter upon the premises and repossess yourself of such equipment with or without process of law; provided however that in case we fail to comply with any of the terms or conditions hereof, you will give us written notice of such failure or alleged failure, and we shall have thirty days to comply therewith (or to commence to comply therewith if such compliance requires time for its completion) and you shall not enter upon the premises to repossess yourself of such equipment until the expiration of said thirty days, or in any case if we comply therewith (or commence so to do as above set forth and diligently carry the same to completion)” (32-34). |