
    William D. Martin, Respondent, v. The New Trinidad Lake Asphalt Company, Limited, Appellant.
    
      Martin v. New Trinidad Lake Asphalt Co., Ltd., 167 App. Div. 927, affirmed.
    (Argued November 16, 1917;
    decided December 4, 1917.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 17, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. This action was brought to recover royalties claimed to be due under, a contract entered into between Walter S. Wilkinson and Richard D. Upham, the plaintiff’s assignors, and the Trinidad Asphalt Company, whereby there was granted to said company the exclusive right for the entire life of the patents to use a process for the refining of asphalt for which letters patent had been granted to said Wilkinson and Upham, and which contract was subsequently assigned by said company to the defendant. The answer alleged that by the terms of said contract the exclusive right to make, use and vend the process covered by said letters patent throughout the United States and in the island of Trinidad was granted to the Trinidad Lake Asphalt Company, and which said right to the exclusive use thereof was of the essence of said contract and the principal consideration therefor; that neither the Trinidad Lake Asphalt Company nor the defendant had had the exclusive right to use, make and vend said invention, but, on the contrary, during the years 1898, 1899, 1900, 1901, 1902 and 1903, the process covered by said letters patent had been and now is in general use among persons and corporations engaged in the refining of asphalt throughout the United States and the territories thereof, and said Trinidad Lake Asphalt Company and the defendant have been prevented from making the profits which they otherwise would have made had such general use not been permitted, and thereby the consideration for the payment of the royalties provided utterly failed.
    
      L. Laflin Kellogg, Alfred C. Petté and Asa B. Kellogg for appellant.
    
      Henry B. Johnson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Chase, Cuddeback, Cardozo, McLaughlin, Crane and Andrews, JJ.  