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

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 totaling approximately-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.