(dissenting). Probably every court in the land is tempted, occasionally, to “ construe ” contracts so as to make them mean what the courts think they should have said in the first place. But the old, safe rule is that we judges must ‘ ‘ concern ourselves with what the parties intended, but only to the extent that they evidenced what they intended by what they wrote ” (Raleigh Associates v. Henry, 302 N. Y. 467, 473). The suit we are now deciding is brought to enforce a plain, simple, home-drawn agreement between two highly experienced business concerns. An attempt by us to write new terms into it is unwarranted and gratuitous. “We may not now imply a condition which the parties chose not to insert in their contract ” (Raner v. Goldberg, 244 N. Y. 438, 442; see Rehill v. Rehill, 306 N. Y. 126, 133; Nichols v. Nichols, 306 N. Y. 490, 496).
On August 15,1917, Shubert Theatrical Company, assignor of plaintiff, produced on a New York City stage for the first time an operetta or musical play called “ Maytime ”. Shubert was unquestionably the sole owner of the whole of that production. “ Maytime ” was an adaptation into English, accomplished by translating the book of a German musical play, and interpolating entirely new songs. Shubert had bought, from the German owner, the American and Canadian rights and had procured and paid for the translation of the libretto, and for the writing of the lyrics and music of the new songs. About a month after the Broadway opening of “ Maytime ”, Shubert and this defendant entered into a written contract in the form of a letter from Shubert to this defendant, a large music publishing house, as follows:
“New York City, Sept. 14, 1917.
Gr. Sehirmer, Inc.
New York City.
Attention Mr. Gr. Sehirmer, Secretary
Gentlemen:
Confirming our conversation of recent date it is understood that you are to publish the music of the play ‘ Maytime ’ — book and lyrics by Rida Johnson Young, and music by Sigmund Romberg, under the following conditions:
You are to pay us as royalty for each and every copy sold on the basis of live (5i) cents per copy, and fifty (50%) per cent, of any and all mechanical *379instruments of whatsoever name or nature, including any inventions that may be made from time to time, wherein the music of the numbers as composed by Sigmund Romberg shall be used; also a royalty of five (5(8) cents per copy on each complete orchestral selection sold. All payments to be made quarterly.
You are also to pay the International Play Bureau an additional two (2(8) cents on each copy of music sold, but you shall make your contract with Mr. Bartsch of the International Play Bureau separately. The contract shall be collateral; that is to say, both contracts are to be treated so that seven (7(8) cents shall be paid for each copy of music sold.
It is also understood that all emoluments of whatsoever name or nature received by you from any person, music hall, cabaret, or theatre wherein the music of Maytime is used, shall inure to our benefit and paid to us, and you shall give no one any consent of whatsoever name or nature to use same without first having our permission in writing.
If this confirms your understanding your signature at the bottom hereof wiM constitute this a valid agreement between us.
You are to pay for all orchestrations made for the numbers which you publish, and deduct same from the accrued royalties.
Very truly yours,
Shubert Theatrical Co. by (sgd.) J. J. Shubert
We hereby accept the above:
G. Schirmer, Inc.
by Gustave Schirmer
Secretary ”
Although that letter contract is dated September 14, 1917, it is conceded that it embodied the terms, and all the terms, of earlier oral arrangements made between the parties before the play opened. The day after the play opened, defendant published and put on sale eight of the songs. At the same time, defendant, in its own name, took out statutory copyrights on those same songs. It is undisputed that there was a custom in the musical world that when a music publisher bargained for and obtained the right to publish music like this, the music publisher was privileged to copyright the music in his own name. But there is not a word in the contract about a copyright and no copyright had been taken out or discussed or arranged for at the time the oral agreement was made. There is no evidence that Shubert promised or intended to have anything to do with a statutory copyright for the songs. There is nothing in the record to justify any claim or conclusion that the rights of the parties under the agreement were to be subject to copyright or copyright laws, or to the existence or continuation or renewal of a statutory copy*380right. So far as this record shows, the parties meant just what they said in the letter above quoted, that is, that Shubert gave defendant the right to publish the songs and defendant, in return for that present and complete grant, agreed that it would pay to Shubert fixed amounts for every copy thereafter sold. No specific time of duration was expressed in the agreement but none was needed, since defendant would be bound to continue to pay so long as it should continue to publish. Any contention based on the absence of a fixed termination date is rendered academic by the fact that defendant continued, and continues to this day, to publish this music (Cammack v. Slattery & Bro., 241 N. Y. 39, 45).
When the originalpíatutory copyright term expired in 1945, the music was still being sold by defendant, but defendant refused to make any more payments to Shubert (or plaintiff). Instead, when payment was demanded of it, defendant called plaintiff’s attention to the fact that, shortly before the expiration in 1945 of the ¡original twenty-eight-year copyright term, Sigmund Bombergl, who had written the music for the new songs while a paid employee of Shubert, and the estate of Mrs. Bida Johnson Young, who had written the lyrics under some sort of employment with Shubert, had taken it upon themselves to renew the copyrights originally taken out by defendant. Bomberg and the Young estate^had accomplished these copyright renewals without notice to, or knowledge or consent by, Shubert or plaintiff. Such a unilateral act by a third party could not, under any theory we have ever heard of, put an end to the obligations of defendant under the contract here in suit. We emphasize, again, that Shubert and/or plaintiff had nothing whatever to do with the taking out of the original copyright or the purported renewals. Shubert, by the 1917 letter, had made a present transfer of a part of his unquestioned rights in the play, and, in consideration for that transfer, defendant agreed that whenever it should publish any of the songs, it would pay Shubert a fixed sum per copy. Since those renewals, or purported renewals, of the copyrights had no effect in this situation except possibly to suggest to defendant a line of defense, we will not discuss their validity (see Tobani v. Carl Fischer, Inc., 98 F. 2d 57; Shapiro, Bernstein & Co. v. Bryan, 27 F. Supp. 11; U. S. Code, tit. 17, § 24).
*381Defendant resists payment on this sole ground: it insists that there must, be read into the letter contract of 1917 (supra) an implied term that defendant’s obligation to pay was to continue only until the end, in 1945, of the original copyright' term of twenty-eight years. A short answer would seem to suffice. Since there is nothing illegal or even unfair about a publisher agreeing to pay fees to the owner of a work so long as the publisher shall continue to publish the work, and since there is not a word in this record to the effect that anybody said or suggested or had in mind that defendant’s obligations would cease in 1945, we would be rewriting the contract to put in anything like that. However, defendant calls to its aid an elaborate argument from copyright law. Defendant, to excuse itself from further performance of its promise, attempts to apply an inapplicable line of decisions, all to the general effect that, when the holder of a copyright or a patent issues a license thereunder, the obligation of the licensee to pay royalties ends when the copyright or patent for any reason ends (Tams-Witmark Music Lib. v. New Opera Co., 298 N. Y. 163; Ricordi & Co. v. Paramount Pictures, 189 F. 2d 469). But Shubert did not issue a license under a copyright. He had not copyrighted the songs, had no intention of copyrighting them, and, as he testified without dispute, was not in any way concerned with the copyrights or renewals. Shubert’s bargain with defendant was that defendant could publish the music for a price. Defendant’s copyrighting of the music was, apparently, pursuant to a custom of the trade, although not by any express permission, but, in any event, it was defendant’s own act for its own benefit. Shubert never agreed to take out a copyright or to protect, continue or renew the copyright, and defendant never asked Shubert to do any of those things. The whole course of conduct showed that Schirmer got what it bargained for, that is, the right to produce the music, and that Shubert had no remaining obligation. What defendant really wants us to hold is that, when the owner of an uncopyrighted work sells to another the right to publish it, the obligation of the grantee, if he himself afterwards takes out a copyright, is measured, as to duration, by the copyright term. That would be equivalent to saying that if defendant had taken on an obligation unlimited in time, he could, by his own act, cut down his own obligation by taking out a copyright.
*382The practical explanation of this situation is that, when this show opened in 1917, no one knew or had any reason to believe that its songs would become minor classics and still be sold in 1945 and 1950. This was “ show business ”, and the parties were practical showmen and publishers, dealing with the probabilities as of then. What they meant, like what they said, relates to 1917 and cannot be changed by the fortunate circumstance that the “ Maytime ” music is still being sung, or the unfortunate (for defendant) fact that defendant is subject to two separate demands for royalties.
Defendant, as a minor point, argues that there was error in the denial of its motion to transfer the cause from the ‘ ‘ Special Term calendar ” to the " Contract Trial Calendar ”. In other words, defendant says that the cause should have been tried as one at law rather than as one in equity. The complaint demanded various forms of purely equitable relief, although no such relief was pressed for or granted at the trial, the judgment being a simple one for money damages only. However, we find it unnecessary to decide whether defendant would have been entitled, under other circumstances, to have this money demand tried " at law ”. The suit had been on the equity trial calendar for about six years when defendant first moved to transfer it therefrom. At no time, so far as this record shows, did defendant demand a jury trial. We think that no error was committed in denying the transfer motion (see Civ. Prac. Act, § 8).
The judgment should be affirmed, with costs.
Froessel, Van Voorhis and Burke, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Conwat, Ch. J., and Dye, J., concur.
Judgment reversed, etc.