
    (69 Hun, 283.)
    CORNWALL v. SACHS et al.
    (Supreme Court, General Term, First Department.
    May 12, 1893.)
    1. Injunction Pendente Lite—Restbaining Sale oe Patent.
    In an action to enjoin the sale of a patent for an invention, plaintiff set up a contract with defendant to perfect a device, and to assign to plaintiff the patent and such improvements on it as were made during his employment by plaintiff. Plaintiff alleged on information and belief, supported by the positive affidavit of his agent, that a certain patent was an improvement on the original device, and averred positively that it was invented during defendant’s term of employment. Defendant denied plaintiff’s allegations. Held, that plaintiff was entitled to an injunction pendente lite restraining defendant from disposing of the patent for the alleged improvement, and from disposing of any models, papers, etc., relating to it.
    2. Same—Scope oe Restraining Ordeb.
    It was error to embrace the original patent in the injunction order when no allegation in regard to it was made in the complaint, and defendant never denied plaintiff’s right to it.
    8. Same.
    Where the original patent was for an individual call fire-alarm system, an injunction restraining the sale of “any other invention, improvement, or patent relating in any way to a firehlarm system,” was unauthorized.
    A Same.
    An order in regard to drawings, etc., should have been limited to those which related to the improvement, and they should not have been taken out of defendant’s possession.
    Appeal from special term, New York county.
    Action by George E. Cornwall against Joseph Sachs and another to restrain defendants from selling the electrical duplicate box. fire-alarm system, and for other relief. From an injunction pendente lite restraining Joseph Sachs from disposing of certain patents, and from removing certain papers, Sachs appeals. Modified.
    Argued before VAN BETJNT, P. J., and FOLLETT and BAEEETT, JJ.
    
      Francis Forbes, for appellants.
    Wheeler, Cortis & Godkin, (Lawrence Godkin, of counsel,) for respondent.
   BARRETT, J.

The question here is whether Sachs’ latest invention is an improvement upon his original invention, for which a patent was granted on the 30th of August, 1892, or whether it radically differs therefrom and from the patented: mechanism. Under the contract between Fenno and Sachs the latter was to perfect an individual call fire-alarm system, to be used in operating present systems of fire-alarm street boxes from a distance, and Fenno was to be the owner of the patent to be issued therefor. Sachs was also to assign to Fenno such improvements upon the original application as might be made during the continuance of Sachs’ monthly stipend. After the system, for which a patent was granted in August, 1892, had been to some extent perfected, Sachs invented the debated system, and in February, 1893, he applied for a patent therefor. The plaintiff alleges that this latter application, and the system upon which it was based, involved an improvement upon Sachs’ original invention, and, although this allegation is made upon information and belief, Fenno supports it by an affidavit in which he states positively that the latest application was certainly intended to be an improvement upon the system described in the contract, and that it follows the specifications of the contract except in certain particulars, as to which there was a special agreement. Fenno also states that the alleged improvement was so invented while Sachs was still in his employ and in receipt of salary under the contract. The plaintiff thus makes out a prima facie case in support of his claim, and, although his averments are denied, we agree with the special term that it was proper to preserve the status quo until a hearing upon the merits. The injury which the plaintiff would sustain by a sale of the invention is much greater than the defendant can possibly sustain by a temporary restraint upon his right of disposition. The case is thus brought within the rule that where, upon balancing considerations of relative convenience and inconvenience, it is apparent that the act complained of is likely to result in irreparable injury to complainant, and the balance of inconvenience preponderates in his favor, the injunction will be granted. High, Inj. §§ 5, 13. We think, however, that the order appealed from is altogether too broad, and that it should be modified by limiting the injunction to the particular invention which the plaintiff claims as an improvement upon the original invention. It was improper to embrace in the injunction order the original invention for which the patent of August, 1892, was issued. Ho allegation with regard to this invention is made in the complaint, and Sachs has never denied the plaintiff’s right thereto or to the patent therefor. The sweeping provision restraining the sale of any other invention, improvement, or patent relating in any way to a fire-alarm system, or boxes or apparatus for use in connection therewith, was wholly unauthorized. So, also, was the mandate that Sachs’ deposit with Messrs. Brieson & Knauth certain specifications, drawings, and models, and that he prosecute his application for a patent with all practicable diligence. As to the materials, models, drawings, and papers in the Germania Bank building or in the shop of Wischeamg & Son, the injunction was proper, so far as it restrains their disposition pendente lite. But the injunction on this head should be limited to such materials, models, drawings, papers, etc., as relate 'to the invention and application in dispute, namely, the application of February, 1893, and it should also be limited to the sale of 'these articles. There is no reason why they should be taken out of Sachs’ possession, any more than the disputed invention, in advance of judgment. Indeed, an injunction can properly run against their disposition only because they are ancillary to the invention, and may be embraced in the decree, if the plaintiff is successful upon the-trial, as án incident to ■the main relief. But for this peculiarity, the plaintiff would be left to his legal remedy as to 'these articles. This modification of the injunction practically disposes of the second branch of the appeal, namely, the order made upon the application to punish for contempt. No decision, however, was made with regard to the alleged contempt, and the order on that head is simply a statement that no punishment will be imposed, but that in a certain contingency the plaintiff may apply again. The order appealed from should therefore be modified so as to enjoin Sachs from disposing of the invention described in the specifications for an auxiliary fire-alarm system sent by him to the United States patent office on or about February 14, 1893, and also from disposing of 'any of the materials, models, drawings, papers, or other property relating to said invention. In all other respects the order appealed from should be reversed, without costs of this appeal to either parly. All concur.  