
    John Volk, Respondent, v. Sigmund Bergman, Appellant.
    (City Court of New York
    — General Term,
    November, 1895.)
    A license to manufacture arc lights under a patent provided, among other things, that for the first five years the royalties should not be less than §2,500 per annum; “any deficiency, from this amount to be paid to * * * at the end of each year as an advance payment on the total amount of royalties for the said five years ; that is, the said * * * shall not be called upon to pay more than the sum of §12,500 for the , said five years, unless the actual amount of manufacture and sales for . the said term at the specified royalty per lamp shall exceed that amount.” Held, that, in the absence of proof as to the number of " lamps manufactured, plaintiff could claim only at the rate of §2,500 per annum.
    Appeal from judgment in favor of the plaintiff, entered upon verdict directed by the court.
    
      
      John E. Brodsky, for'appellant.'
    
      Henry F. Harris, for respondent.
   McCarthy, J.

The complaint is to,' recover $1,045 for ' royalties on arc lamps manufactured between November'19, .■ 1892, and January 1, 1895,' making a period of about, two years, one month and nineteen days. ..

The defendant admits all the allegations of plaintiff’s complaint, except that he denies the - indebtedness claimed and asserts payment in'full. ,

So far as the appeal is concerned the sixth clause of the agreement has no. bearing. .

We think, however, that the third clause is controlling and must determine.

That clause is as follows : “ From the date of this exclusive license, and for the first succeeding five years, the said royal-. ties shall- not be less than -two thousand, five hundred dollars1 per annum; any deficiency from this airiotint to be paid to the said Kirkégaard at the end of each year as an advance payment on the total amount of royalties for the said five years; that is, the said Bergman or his assigns shall not be called upon Jo pay more than the sum of twelve thousand five hundred dollars for the said five years, unless the actual amount of manufacture and sales for the said term at the specified royalty per lamp shall exceed that amount.

That said 'Kirkegaard hereby acknowledges the receipt •of the sum of five hundred dollars on account of royalties that' may accrue hereafter under this agreement, which royalties have been paid to him by said Bergman without ■recourse.” ■ "'

!

This means that, unless there; was manufactured more than at the rate.of 2,500 lamps per annum, the plaintiff’s assignor was not to receive more nor was the defendant to pay less than $2,500 per annum. ■ '

There was. no evidence in the case as to how many were ■ manufactured during the two years, one month and nineteen days, and, in the absence of such proof, the presumption was that . the plaintiff could only claim at the rate of $2,500 per annum,, and that for two years, one month and nineteen days would be-about $5,400.

The defendant, however, says he paid $5,J00 during this period, and this would, without explanation, show that the defendant had paid to the plaintiff’s assignor a considerable sum in excess of what he was entitled to receive.

The trial justice erred, under the circumstances, in directing a verdict for the plaintiff.

We think the evidence was more favorable to the defendant for such a direction.

Judgment is, therefore, reversed and a new trial granted> with costs to the .appellant to abide the event.

Conlan, J., concurs.

Judgment reversed and new tidal granted, with costs to-appellant to abide event.  