SPITZ v. LESSER


277 A.D. 415 (1950)

Alfred W. Spitz, Respondent, v. Martin Lesser, Doing Business as Playtown Products Co., Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

November 14, 1950.


Attorney(s) appearing for the Case

Samuel Herbsman of counsel (Gronich, Herbsman & Aleyner, attorneys), for appellant.

David L. Delman, for respondent.

PECK, P. J., COHN, CALLAHAN and VAN VOORHIS, JJ., concur in Per Curiam opinion; DORE, J., dissents and votes to affirm in opinion.


Per Curiam.

This is a suit for anticipatory breach of a contract dated October 27, 1948, under which the defendant agreed to manufacture for three years a toy invented by the plaintiff. The contract provided for payment of royalties of 5% on sales, with a minimum of $2,500 for the first year. The defendant, however, had the option to cancel at any time after the toy show ending on March 17, 1949, but not later than...

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