Barber v. a. Schrader'S Son, Inc.

215 A.D. 785 | N.Y. App. Div. | 1925

We are of opinion that the license agreement upon which defendant’s obligation in this action rests calls for the payment of royalties to the plaintiff mly upon devices illustrated by the Xa series, shown in the record as plaintiff’s Exhibit 4. We do not decide that the devices illustrated by the Xb series, shown in the record as plaintiff’s Exhibit 5, do not embody plaintiff’s invention, but we think that, according to the terms of the license agreement, royalties were to be paid by the defendant upon the manufacture and sale by the defendant of curved and angular connections applicable to a the valve for use on disk wheels, and that the device illustrated by the Xb series is not within this specification. The interlocutory judgment is, therefore, modified by limiting the accounting to the devices manufactured and sold by the defendant known in the record as the Xa series (Plaintiff’s Exhibit 4). Findings of fact and conclusions of law to the effect that devices designated by plaintiff’s Exhibit 5 are embodied in plaintiff’s invention, and that plaintiff is entitled to an accounting therefor, are stricken out. As so modified, the interlocutory judgment is affirmed, with costs of this appeal to the appellant. Kelly, P. J., Rich, Jaycox, Kelby and Young, JJ., concur. Settle order on notice.