King Records, Inc., Appellant, v. James Brown et al., Respondents, 21 A.D.2d 593

McNally, J. The question presented is whether plaintiff-appellant is entitled to an injunction pendente Hie restraining violation of an express negative covenant not to “ perform for the purpose of making phonograph records for any person other than us ’ ’. Defendant James Brown is a vocalist, musician, and orchestra leader. On June 23, 1960 plaintiff and Brown entered into a written agreement whereby his “ exclusive professional services in connection with the production of phonograph records ” were engaged by plaintiff for the period of five years commencing July 1, 1960.

Thereby substantial payments and royalties were required to be and were paid by plaintiff to Brown. Brown covenanted during the contract period not to make recordings for any other person; the contract recites his 1 ‘ services are unique and extraordinary ’ ’. Two extensions of the original term of the basic agreement have been entered into, the effect of which we do not now decide' since the original term of five years has not expired. On January 20, 1964 Brown entered into a recording agreement with Fair Deal Records, the predecessor of defendant Fair Deal Record Corp.

Fair Deal was organized by Brown and his manager. On February 28, 1964 Fair Deal granted to defendant Mercury Record Corporation the exclusive right to distribute and sell Brown’s recordings. Fair Deal warranted to Mercury that it had an exclusive recording agreement with Brown. Mercury’s president admits knowledge “ that Brown’s recordings had appeared on the label of the plaintiff ”. Mercury received assurances from Brown’s manager that “Brown was not under any obligation to record for King ”. Mercury’s president knew that Brown and his manager had formed Fair Deal.

Mercury’s attorney inquired of American Federation of Musicians as to the existence of any contract between Brown and the plaintiff; he was informed no such contract had been filed with the Federation. No attempt was made by the corporate defendants to ascertain from the plaintiff whether it had or claimed a contract with Brown. We conclude on this record that the corporate defendants had knowledge of plaintiff’s contract with Brown for his exclusive recordings. The 1960 contract expressly provides Brown’s services are unique and extraordinary.

The nature and extent of the recordings made by Brown under plaintiff’s contract and the large quantity thereof publicly sold substantiate the contract characterization of Brown’s services as unique and extraordinary. Mercury’s president verifies that within two months of the contract with Fair Deal it paid $27,500 to Fair Deal and advanced costs of recordings to the extent of $10,000. Thereby is confirmed Mercury’s appraisal of Brown’s services as unique and extraordinary. (See Purchasing Assoc. v. Weitz, 13 N Y 2d 267, 274.) Brown and Fair Deal cross-moved for a stay of proceedings pending arbitration.

On March 18, 1959 plaintiff entered into a collective bargaining agreement with American Federation of Musicians of the United States and Canada relative to members of the Federation denominated “musicians”. The collective bargaining agreement incorporates the provisions of the constitution and by-laws of the Federation. The said constitution and by-laws provide for arbitration of any claim arising from any agreement relating to services of a musician member of the Federation; also, that no contract with a musician member of the Federation shall be effective unless approved by its executive board.

Plaintiff argues with great force that its contract with Brown pertains to his professional services as a vocalist, not as a musician within the meaning of the collective bargaining agreement. It is unnecessary to decide that issue, although the practical

interpretation of said agreement would seem to sustain the plaintiff’s view. Plaintiff also argues that the contract with Brown does not itself contain provision for arbitration and does not adequately incorporate the arbitration provisions of the Federation’s constitution and by-laws. An agreement to arbitrate must be direct and the intention made clear without “implication, inveiglement or subtlety ”. (Matter of Doughboy Ind. [Pantasote Co.], 17 A D 2d 216, 220.) (Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288, 289, 291; Matter of Lehman v. Ostrovsky, 264 N.

Y. 130, 132.) The agreement relied on herein is neither clear nor direct. If it be assumed, arguendo, for the purpose of this appeal that Brown is a musician and that the provision for arbitration applies, nevertheless, Brown may not avail himself of arbitration, a right which is vested exclusively with the collective bargaining agent, the Federation. (Parker v.

Borock, 5 N Y 2d 156.) The application for a stay pending arbitration constitutes an exercise of the right to arbitration since the stay is the exclusive remedy in respect of an action allegedly in violation of the provision for arbitration. (See Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36, 42-43.) We note defendants’ claim that plaintiff’s contract was not approved by the Federation as provided in the collective bargaining agreement.

We need only observe that the provisions of the collective bargaining agreement are not available to Brown and that the Federation, the collective bargaining agent in whom are vested the rights under said agreement, is not a party and makes no claim thereon. Moreover, the corporate defendants are not parties to and have no rights under the said agreement. The various defenses pleaded by the defendants are factually unsupported.

The order should be modified, on the law, on the facts and in the exercise of discretion and the motion for an injunction pendente lite granted to the extent of restraining defendant Brown from vocal phonograph recordings and restraining the corporate defendants from causing or providing such recordings or manufacturing, distributing or selling any vocal phonograph recordings of defendant Brown; the cross motion of defendant Brown denied; and, as so modified, the order should be affirmed. Settle order providing for bond.