Van Valkenburgh, Nooger & Neville, Inc. v. Hayden Publishing Co.

Order, Supreme Court, New York County, entered on March 8, 1973, unanimously affirmed. Respondent shall recover of appellants $60 costs and disbursements of this appeal. We note that defendants-appellants contend that there should be a trial to determine whether, following modification here (33 A D 2d 766) and affirmance in the Court of Appeals (30 N Y 2d 34) of the original interlocutory judgment, defendants thereafter desisted from their previous failure to use their best efforts to promote plaintiff-respondent’s books, and thereby ceased further to damage plaintiff. But the Court of Appeals did point out that “Whether there was, in fact, damage to the author from * * * [defendants’ other] * * * publication will be decided at the reference.” (P. 47.) Since such continuing damage could only have flowed from continuing dereliction by defendants in respect of contractually required promotional activity, the very issue as to which defendants desire a trial will' be tried out in the reference. Concur ■— Markewich, J. P., Murphy, Lane and Tilzer, JJ.