
    Denys W. Corbet, Appellant, v. Manhattan Brass Company, Respondent.
    (Argued December 5, 1905;
    decided December 12, 1905.)
    
      Corbet v. Manhattan Brass Co., 98 App. Div. 217, modified.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July. 15, 1904, upon an order reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a dismissal of the complaint.
    
      Harrie C. Manheim, for appellant.
    
      George Ryall for respondent.
   Haight, J.

We agree with,the Appellate Division ás to its construction of the contract between the parties (Wing v. Ansonia Clock Co., 102 N. Y. 531; Ebert v. Loewenstein, 42 App. Div. 109 ; affd. on opinion below, 167 N. Y. 577); but we think the Appellate Division should have ordered a new trial instead of dismissing the complaint. The plaintiff in his complaint alleged that he had demanded of the defendant a re-assignment to him of the patents referred to in the contract and that the defendant had refused to re-assign the same. The issue formed upon .this allegation does not appear to have been determined by the trial court.

The judgment of the Appellate Division should, therefore, be modified accordingly ; costs to abide event.

Cullen, Ch. J., Gray, O’Brien, Bartlett, Yann andWerner, JJ., concur.

Judgment accordingly.  