Gates v. Billboard Publications, Inc. 81 A.D.2d 776

— Order, Supreme Court, New York County, entered June 17, 1980, denying defendant’s motion for summary judgment dismissing the complaint, is unanimously affirmed, *777without costs. There are triable questions of fact as to whether plaintiff has fully performed his obligations, and whether defendant’s refusal to publish plaintiff’s book in the form proposed by plaintiff was justified in the circumstances and made in the good faith exercise of its right of editing, and whether such refusal excused further performance by plaintiff. The more difficult question is whether any useful purpose would be served by resolving these issues judicially, i.e, whether, in any event, any practical judicial relief could be granted. Apart from everything else, the First Amendment would seem to be a serious and perhaps insuperable bar to any direction to compel publication. And plaintiff’s claim of ascertainable monetary damages leaves much to be desired. But the relief which may ultimately be granted may consist at least of the. determination of the questions whether plaintiff is entitled to the return of his manuscript and to the privilege of trying to get another publisher to publish his book, and, if so, whether a condition of the return of the manuscript would be the repayment by plaintiff of the advance royalty. Concur — Sullivan, J.P, Ross, Carro, Silverman and Bloom, JJ.