
    The PRESERVALINE MANUFACTURING COMPANY, Appellant, v. Albert H. Selling, Respondent, Impleaded with Heller Chemical Company.
    
      Supplemental answer—costs imposed where the fails sought to be set forth therein existed when the suit was begun—action for the violation of a trade mark and for the breach of a covenant restraining an employee from entering the service of a, competitor of the employer—the fact that the trade mark contained false statements is not a defense to the action for the breach of the contract.
    
    A manufacturing corporation brought an action against a competing corporation to restrain the latter from violating the plaintiff’s trade marks, and against a salesman in the employ of the competing corporation, who had formerly been in the employ of the plaintiff corporation, to enforce a covenant contained in the plaintiff’s contract with the salesman by which the latter agreed that he would not enter the employ of any competitor of the plaintiff within a specified time after he left the plaintiff’s employ. The individual defendant, who alone was served, interposed an answer and thereafter applied for and obtained leave to serve a supplemental answer alleging that the trade marks which the plaintiff sought to protect contained false and fraudulent statements.
    
      Held, that, as the fact sought to be alleged existed prior to the service of the original answer and entirely changed the issue presented thereby, the individual defendant should, as a condition of obtaining leave to serve the supplemental answer, have been required to pay the costs of the action to date and to stipulate that the plaintiff might discontinue the action without costs if so advised.
    
      Semble, that the facts sought to be set up by the supplemental answer did not constitute a defense to the cause of action alleged against the individual defendant, and that the latter should not have been allowed to serve such supplemental answer.
    Appeal by the plaintiff, The Preservaline Manufacturing Company, from an order of the Supreme Conrt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1902, granting the defendant Selling leave to file and serve a supplemental answer.
    
      Frank I. Crocker, for the appellant.
    
      Isaac W. Goodhue, for the respondent.
   Ingraham, J.:

The action was brought to restrain the defendant Heller Chemical Company from violating the plaintiff’s trade marks, and the defendant Selling from continuing further in the employ of the Heller Chemical Company as its salesman. The defendant Selling answered on the 22d day of January, 1902. In June, 1902, Selling made an application for leave to serve a supplemental answer alleging that the trade marks which the plaintiff seeks to protect in this action contained false and fraudulent statements. The action against Selling was to enforce a covenant contained in a contract of employment, in which contract Selling agreed that he would not enter the employ of any competitor of the plaintiff within a specified time after he left the plaintiff’s employ; that Selling was discharged in August, 1901, for failure to account for and pay over to the plaintiff certain collections he had made on account of the plaintiff; that in September, 1901, Selling entered the employ of. the defendant Heller Chemical Company, a competitor óf the plaintiff, and that after his entry into the employ of the Heller Chemical Company that company commenced the infringement of the plaintiff’s trade marks. The cause of action thus alleged and sought to be enforced against Selling is for a breach of a contract, and it would not seem to be a defense to that cause Of a.ction that certain trade marks under which the defendant did business contained fraudulent statements of facts. The facts alleged would not justify Selling in violating his contract with the plaintiff. The Heller Chemical Company has not been served in this action and is hot, therefore, before the court, and as the facts alleged in the supplemental answer could be no defense to Selling in the action to recover for a breach of his contract I do not think that Selling should have been allowed to serve the answer. As, however, the question as to' the validity of the defense alleged can be disposed • of at the trial,- we are hardly justified in reversing the order because as it now appears the facts alleged would not constitute a defense. The facts which are sought to be alleged are facts which existed prior to the service of the original answer and entirely change the issues presented and, therefore, we think that as a condition for leave to serve this answer the defendant should be required to pay the costs of the action to date, and required to stipulate that the plaintiff may discontinue the action without costs if so advised. :. . . ;

The order appealed from should be modified- as above indicated,' and as modified affirmed, without costs of this appeal.

Van Brunt, P. J., Patterson, Hatch and Laughlin, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.  