Opinion
Argued May 10, 1974
Decided June 13, 1974
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JAMES J. LEFF, J.
Sol I. Sokolsky, Jay J. Miller, Arthur March and Stephen S. Bernstein for appellant.
Leonard I. Schreiber and Robert G. Smith for respondent.
MEMORANDUM. We affirm the order of the Appellate Division.
As to appellant publisher's affirmative defense based on alleged breach of contract on the part of respondent illustrator-designer, we note that as appellant must have been aware, respondent for some years had been professionally engaged in editorial, art and illustration work for encyclopedias and other publications. Yet the contract between the parties contained no express negative covenant or other provision restricting respondent's freedom to continue to work in the field generally. Nor under the circumstances here can any such negative or restrictive agreement be implied. Appellant publisher received the illustrations which respondent agreed to prepare and for which appellant agreed to pay. If appellant had sought to limit respondent's freedom to make duplicate or similar illustrations available to other publishers, a provision appropriate to that end should have been proposed for inclusion in respondent's contract.
Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and RABIN concur in a memorandum; Judge STEVENS taking no part.
Order affirmed, with costs.