Rosenwald v. Weber

229 A.D. 702 | N.Y. App. Div. | 1930

O’Malley, J.

The amended complaint sets forth an agreement whereby the plaintiff was to have a seventeeen and one-half per cent interest in the processes and "inventions of the defendant Weber. Sufficient facts are alleged from which a fiduciary relation between the parties may be inferred and by virtue of which the plaintiff would be entitled to an accounting for his share of any possible profits growing out of the agreement. In this view it is immaterial whether the contract had in fact expired by its terms when the action was commenced. (Meinhard v. Salmon, 223 App. Div. 663; affd., 249 N. Y. 458.) The relief granted, however, was too broad and the defendants should not be prevented from patenting or disposing of the processes or inventions, so long as plaintiff’s interests are protected. The order should be modified by enjoining the defendants and each of them from disposing of plaintiff’s seventeen and one-half per cent “ interest in and to any and all moneys or emoluments flowing from the said defendant Weber’s alleged invention, processes or formal® ’’ without plaintiff’s consent, and as thus modified affirmed. Finch and Martin, JJ., concur; Dowling, P. J., and McAvoy, J., dissent and vote for reversal and denial of motion. Order modified by enjoining defendants and each of them from disposing of plaintiff’s seventeen and one-half per cent “ interest in and to any and all moneys or emoluments flowing from the said defendant Weber’s alleged invention, processes or formula ” without plaintiff’s consent, and as so modified affirmed. Settle order on notice.