Holt, Rinehart and Winston, Inc., Respondent, v. Benjamin B. Wolman et al., Appellants

(Republished) Holt, Rinehart and Winston, Inc., Respondent, v Benjamin B. Wolman et al., Appellants. [MAJORITY] Order, Supreme Court, New York County, entered December 17, 1974 granting plaintiff’s motion for summary judgment in the amount of $55,000 plus interest, costs and disbursements and judgment entered thereon on December 19, 1974, unanimously reversed, on the law, the motion for summary judgment denied, and judgment vacated, with $60 costs and disbursements to appellants. The record presents issues of fact which preclude the granting of summary judgment. Some of those issues are as follows: Whether the use of the allegedly plagiarized materials consisting of approximately 22 to 35 pages in a manuscript totaling about 1,200 pages constituted a breach of the warranty of originality; whether use of such materials was proper — coming within the doctrine of "Fair Use”; whether the proper consents were obtained, thereby permitting use of the subject materials, and whether plaintiff’s rejection of the manuscript was based upon its good faith determination that the materials were not satisfactory. Concur — Markewich, J. P., Murphy, Tilzer and Lane, JJ. [47 AD2d 872.]