Page:Yardley v. Houghton Mifflin (S.D.N.Y. 1938).pdf/2

 defendant filed a counterclaim, on final hearing.

Decree for defendant dismissing the complaint and on the counterclaim.

Sidney S. Bobbe, of New York City, for plaintiff.

Cooper, Kerr & Dunham, of New York City (Thomas J. Byrne and Allan C. Bakewell, both of New York City, of counsel), for defendant.

WOOLSEY, District Judge.

My judgment is for the defendant herein which may have a decree dismissing the complaint, and giving it, on its counterclaim, a decree for the declaration and judgment therein prayed for.

The defendant may have costs which will include attorneys fee, to be fixed by me on petition of defendant’s attorneys supported by affidavit.

I. My subject matter jurisdiction herein is based on the fact that this cause involves a question of alleged infringement of copyright. Title 28 United States Code, Section 41 (7), 28 U.S.C.A. § 41(7).

II. The facts sufficiently set forth for the purposes of this opinion are as follows:

A. On January 14, 1904, a contract was entered into between Thomas Cockrell & Son, hereinafter called the contractor, and the City of New York, by the Board of Education, acting through its Committee on Buildings, for the erection at Tenth Avenue and 59th Street, of a high school to be known as the DeWitt Clinton High School.

As I understand it, up to this time there had not been any attempt made to put decorative paintings in public schools. It was decided, however, to have some mural paintings in this high school building. These were to be painted and installed under the supervision and control of the Committee on Buildings and the Art Commission of the City of New York.

In pursuance of this plan, the contract contained the following provisions:

“That the contractor shall include in his estimate the sum of $3,500 for two paintings to be placed, one on either side of platform in the auditorium. The Committee on Buildings reserves the right to select and name the artist who shall execute the work, from among those of established reputation, who have satisfactorily executed similar works.

“That the artist so selected and named shall also put the pictures in place upon a surface suitably prepared therefor by the contractor, who shall place a suitable moulding over the edge, etc.

“That the payments to the artist so selected shall be made by the contractor upon a certificate issued by the Superintendent of School Buildings, with the approval of the Committee on Buildings, to whose satisfaction the work shall be done. Any difference between the price agreed upon between the Committee on Buildings and the artist for the work, and the sum of $3,500 included and thus set aside by the contractor, shall be deducted from the amount of the contract.”

B. Mr. Charles Y. Turner was selected to paint the two mural paintings required under the contract, and after conferences with the then Architect and Superintendent of School Buildings, Mr. Charles B. J. Snyder, as to the nature and size of the sketches for the murals, and, after the final approval thereof by the Art Commission of the City of New York, Mr. Turner finished the paintings, they were put in place, and Mr. Turner was paid for them.

C. One of the murals showed Governor Clinton and his wife on a flower decked canal boat en route from Buffalo to New York, and the other—with which alone we are here concerned—was called by the artist “The Marriage of the Waters of the Great Lakes with the Sea”.

The symbolic act depicted by Mr. Turner occurred on November 4, 1825, and was thus described by Charles Rhind, Esq. in his report as Chairman of the “Committee on Arrangements for Celebrating the Union of the Waters of the Great Lakes with the Sea”, as set forth in Cadwallader Colden’s book “Completion of New York Canals”, at page 196:

“His Excellency, Governor Clinton, then proceeded to perform the ceremony of commingling the waters of Lake Erie with those of the Atlantic. On board the Seneca Chief, two elegant kegs, beautifully painted in green with gilded hoops, were brought down, containing ‘Water of Lake Erie’; from one of these the Governor poured a portion of the water into the sea; and after delivering a short, but very pertinent address, thus consummated the ceremony.”

The selection of these subjects for murals for the DeWitt Clinton High School was obviously very appropriate, as they recorded what was perhaps the most important event in Governor Clinton’s long service as Governor of New York State.