
    Marie Brunner, Respondent, v. Max Kaempfer, Appellant.
    
      Judgment—must follow the decision. ,
    In an action brought to obtain an accounting as to the sales made of an article patented by the plaintiff, which had been manufactured by the defendant under an agreement between him and the plaintiff, and for an injunction to restrain the •defendant from manufacturing or selling the. articles in excess of the stock on hand or in process of manufacture on January 1, 1895, the court found in substance that the defendant had accounted for the sales made by him under the agreement and was entitled to continue to manufacture and sell the articles.
    The court, however, granted a judgment by which it directed an injunction to be issued as demanded in the complaint, with the exception that the defendant might sell all the articles manufactured and on hand May 1, 1895, and that he might manufacture the raw material on hand into such articles, provided he paid in advance a certain royalty, but that he could not sell or manufacture at all after May 1, 1897.
    
      
      Held, that the judgment, was entirely unauthorized and that, upon the decision of the court, judgment should have been given for the defendant without any limitations.
    Appeal, by the defendant, Max. Kaempfer, from a judgment of the Court of Common Pleas for the city and county of New York ' in favor of the plaintiff, entered. iii the office of the clerk of said court on the 3d day of July, 1895, upon the decision of the court, rendered after a trial at.an equity term of said court, and also from the amended judgment and decree entered in said clerk’s office on the 5th day of September, 1895.'
    
      Samuel Fleisehman, for the appellant.
    
      Julius J. Franh, for the respondent.
   Ingraham, J.:

. This action was brought to obtain an accounting of sales made by the defendant of a certain patented article, the patent of which was owned by the plaintiff, and which had been manufactured by the defendant under an agreement between himself and the plaintiff, and for an injunction to restrain the defendant from manufacturing • or selling the patented article in excess of the stock on hand or in process of manufacture on January 1,18951 The complaint alleges, after setting, up the contract between the parties, that the defendant has failed and refused to account or make payments under the con- ■ tract, and continues, and threatens to continue, the manufacture and s'ale of the patented article in violation of the contract.

On the trial the principal controversy seems to have been as to whether or not the defendant was entitled to manufacture into certain skirt belts, known as the “ Universal Skirt Belt ” (which was the patented article in question), certain elastic material which had been purchased by the defendant for the purpose of manufacturing the said belt.

The court in its decision states : “ The undisputed evidence shows . that the total sales during the fifteen months amounted to one hundred and eighty-seven gross and eleven and five-twelfths dozen belts. On these the defendant paid the stipulated royalty, and on the trial of the action further accounted‘for his sales' to and including the 30th day of April, 1895. On or about said last-mentioned date the defendant had on hand four hundred and seventy-two and seven-twelfths dozen manufactured belts and six thousand nine hundred and fifty yards of elastic, purchased by him exclusively for the purpose of manufacturing said belt. There‘were no belts on hand on that date in an incomplete or partial state of manufacture.” The decision then states: “ Plaintiff contends that the defendant should be enjoined from manufacturing into belts any part of the elastic in question, which she testifies is equivalent to between four hundred and thirty-four and four hundred and thirty-five gross of belts. Defendant, on the other hand, testifies that this elastic is within the purview of the terms of the agreement relating to the sale of stock in process of manufacture, and that as such he should be permitted to manufacture the same into belts and sell the same under said agreement.” The decision then continues : I am of the opinion that the contention of the defendant is right, and that he should be permitted to manufacture the elastic into belts and dispose of the same under the agreement.”

It would thus appear that the defendant had accounted for the sales made by him under the agreement, and that the defendant was entitled to continue' to manufacture the belts, or the elastic purchased by him into belts, and sell the same under the agreement. There is no evidence that the defendant intended or threatened to manufacture or sell any other belts except those to be manufactured from the elastic so purchased, and it would seem from this decision that no relief should have been granted to the plaintiff. Thus' having decided the case in favor of the defendant, however, the court directed an injunction to be issued as prayed for in the complaint, the defendant, however, to have leave to sell all belts manufactured and on hand on May 1, 1895,- and also to manufacture into belts and sell all the elastic which he, had on hand on said date, as a condition of his being permitted to sell and manufacture said belts and elastic, that he pay, in advance of such manufacture and sale, to the plaintiff a royalty of three dollars per gross.

Judgment was thereupon entered requiring the defendant within ninety days to pay to the plaintiff, not only the royalty upon the belts manufactured and not sold, but also the royalty on all stock of manufactured belts, and of all elastic to be used in the manufacture of the said belts. The judgment further provided that after the payment of the said royalty, and the receipt thereof ‘by the plaintiff, the defendant should be at liberty to sell and dispose of the belts, in his possession on May 1,1895; provided, however, that, said defendant should sell and dispose ■ of all said belts not later than the 1st day of May, 1897, from and after which date the judgment should become absolute and unconditional. It also provided that the defendant, his servants, agents and employees, and all persons acting in bis béhalf, be permanently enjoined and restrained from manufacturing and selling, or offering for sale, the belts described in the complaint; and this judgment was without costs;

■ Thus it would seem that after deciding all "of the contested questions in favor of the defendant a judgment was granted which enjoined the defendant from doing what he never intended, or threatened or claimed he had a right to do, and added to the contract an entirely new clause by. which a time limit is added, to the contract; and the defendant was enjoined from manufacturing and. selling the belts after May 1,1897, when under the contract between the parties there is no such limit.

We think this judgment entirely unauthorized, and that, upon the decision of the. court there should have' been judgment for the defendant. There is not a particle of - evidence to justify any judgment against the defendant, adopting the decision of the controversy as to the right of the defendant to manufacture into belts the elastic purchased by him prior to the termination of the agreement sued on. The plaintiff does not appeal from the decision of the- question in favor of the defendant.

The judgment entered should, {herefore, be reversed and judgment directed 'for the defendant, with costs of the appeal only in favor of the defendant and against the respondent.

Van Brunt,. P. J., Williams, Patterson and O’Brien, JJ., concurred.

Judgment "reversed and judgment directed for defendant, with , costs of appeal .only in favor of defendant and against the respondent.  