Opinion
November 16, 1955.
Appeal from Supreme Court, Albany County.
Present — Foster, P.J., Bergan, Coon, Halpern and Zeller, JJ.
Concededly the only question presented to Special Term was the construction of a written contract between the parties. In general the contract provided that plaintiffs have certain exclusive territory for the sale of products of the first named defendant (the second named defendant is merely a successor in interest); for payments by the plaintiffs totaling $5,000 designated as "advance royalty"; for the payment of royalties of 3% "to commence one year after the hanging of the first awning" with a minimum of $1,000 per annum. Plaintiffs paid the $5,000 and continued to pay subsequent royalties for a number of years. Plaintiffs now contend that only the sum of $1,000 for the first year should be deducted from the $5,000, and that they are entitled to the return of $4,000, basing their contention largely upon the term "advance royalty". There is nothing in the contract providing for the return of any part of the initial payment under any circumstances nor is there anything in the contract providing that royalties be applied against the original payment of $5,000. The Special Term has held that the $5,000 payment was for the exclusive franchise, and that both the terms of the contract and the practical construction placed upon them by the conduct of the parties indicate a construction favorable to the defendants. We think that such construction was correct. Order and judgment unanimously affirmed, with costs.