(dissenting). This appeal presents two questions, one substantive and the other procedural.
The substantive issue involves the construction of a contract. We think that the surrounding circumstances must be considered for a proper understanding of the agreement in suit. The material facts are as follows: Plaintiff is the successor in interest of Shubert Theatrical Company, which under an agreement, dated February 19, 1917, obtained from one Hans Bartsch, the right to produce in America a play known as ‘ ‘ May-time ” and derived from the German “ Wie Einst Im Mai ”. Shubert was to have the exclusive license to translate and produce the play in America for the 1916-1918 seasons, with a *645proviso that the term was to be automatically renewed from year to year during the life of the American copyright. Upon the expiration of this agreement, the play was to revert to Bartsch, including the right to any American adaptations.
New music was written for the American play by Sigmund Romberg and Rida Johnson Young.
Thereupon Shubert entered into the disputed contract with defendant. This was in letter form, dated September 14, 1917, wherein defendant agreed to publish the music of the play and pay Shubert a specified royalty on the sale of each copy, a percentage on all mechanical instruments using the numbers, and a royalty for each orchestral selection of the music. Payments were to be made quarterly. Defendant, as agent, obtained American copyrights for the new music of Romberg and Young.
The issue in the case concerns the duration of the agreement of September 14, 1917. It contained no express provision as to duration. The principal, if not the only clue, furnished by the contract itself is found in the use of the word “ royalty ”. We attribute an important significance to this term. We think that it indicates an understanding for payments by a licensee to a licensor, and thus conclude that the obligation to make such payments would end when the licensee’s privileges terminated. (Bottlers Seal Co. v. Rainey, 225 N. Y. 369; Pomeroy v. New York Hippodrome Corp., 197 App. Div. 114.) This would seem to be what the parties intended.
It appears that Bartsch in 1942, as the result of litigation, recovered judgment divesting Shubert of all rights to produce the play and terminating the agreement of February 19, 1917.
The American copyrights to the music expired in 1945. They were renewed by Romberg and the Estate of Mrs. Young in their own behalf. Defendant thereafter made a new agreement with them for a license to publish the music.
It is our view that, if not in 1942, then at least in 1945, Shubert and plaintiff lost the right to obtain royalties from defendant, and the contract of September 14, 1917, is to be construed as having expired. It would seem to us to be an unreasonable construction that compelled defendant to pay “ royalties ” after the licensor ceased to have any right in or authority over the property. As all royalty payments due up to 1945 have been paid, we find that plaintiff has no cause of action.
The procedural question is whether the plaintiff may recover a money judgment, including damages up to the year 1953, in an action commenced on the equity side of the court in 1947, *646where the trial court has found that there was no right to equitable relief, but that the plaintiff was entitled to damages for breach of its contractual right to collect royalties. There was no right to an accounting because no fiduciary relationship existed between the parties. We think a mere statement of the proposition discloses that the proper answer should be in the negative, and that the complaint should be dismissed. (Jackson v. Strong, 222 N. Y. 149, 153; International Photo Recording Machs. v. Microstat Corp., 269 App. Div. 485.)
The judgment appealed from should be reversed, with costs to the defendant, and the complaint dismissed.
Bastow and Botein, JJ., concur with Breitel, J.; Callahan, J., dissents and votes to reverse and dismiss the complaint, in opinion, in which Dore, J. P., concurs.
Judgment affirmed, with costs.
Republished decision, June 15, 1954.
Judgment affirmed, without costs. Opinion by Breitel, J.; Dore, J. P., and Callahan, J., dissent and vote to reverse and dismiss the complaint, dissenting opinion by Callahan, J. Order filed.* Present — Dore, J. P., Callahan, Breitel, Bastow and Botein, JJ.
Also printed 283 App. Div. 1037.— [Rep.