
    John I. D. Bristol, Appellant, v. The Equitable Life Assurance Society of New York, Respondent.
    The originator or proprietor of an-idea, trade, secret or system, which cannot be sold, negotiated or used without disclosure, must himself protect it from disclosure by some contract, and if he discloses it to another without contract, or any agreement as to compensation, the other is entitled to use it, and, if he does so use it to his benefit, he incurs no liability to the one who made the disclosure.
    Plaintiff’s complaint alleged in substance that, to induce defendant to " employ him, he communicated to it, in confidence, a new system of soliciting insurance business; that defendant, without plaintiff’s knowledge, commenced the use of the system, and continued its use against his protests after discovery, and thereby obtained a large amount of business. Plaintiff asked for an accounting and payment of a reasonable compensation. On demurrer to" the complaint, held, that it did not set forth a cause of action.
    Reported below, 52 Hun, 161.
    (Argued March 7, 1892;
    decided March 22, 1892.)
    Appeal from judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made March 29, 1889, which affirmed a judgment in favor of defendant entered upon a decision of the court on trial at Special Term.
    This action was brought to obtain an accounting and recover compensation for communicating to defendant a new system for soliciting life insurance, which plaintiff alleged, after a confidential disclosure thereof by him in a letter requesting employment, was adopted by defendant and used without his knowledge, and the use was continued, notwithstanding his protests, after discovery of its use, whereby defendant obtained a large amount of business.
    Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was sustained.
    Further facts are stated in the opinion.
    
      Raphael J. Moses for appellant.
    The right of property exists in a definite collocation of ideas forming a new and useful system of transacting a lawful business. (Kiernan v. M. Q. Co., 50 How. Pr. 104; Miller v. Taylor, 4 Burr. 2303; 2 Story’s Eq. Juris. §§ 943, 950; Hay v. McKenzie, 3 Barb. Ch. 320; Wheaton v. Peters, 8 Pet. 591, 608; Little v. Hall, 18 How. Pr. 165; Prince Albert v. Strange, 1 McN. & G. 96; Denis v. Leclerk, 1 Mod. 207; Folsom v. Marsh, 2 Story, 100; Wetmore v. Scoville, 3 Edw. Ch. 515; United States v. Tanner, 6 McC. 128; Eire v. Higbee, 22 How. Pr. 198; Grigsby v. Breckinridge, 2 Bush, 480; Macklin v. Richardson, Ambler, 694; Boucicault v. Fox, 5 Blatchf. 98; Keene v. Kemble, 16 Gray, 945; Tenor v. Robinson, 10 Ir. Ch. 134; Boulanger v. McKay, 15 Blatchf. 561; Ehret v. Pierce, 18 id. 302; Cobbitt v.Woodward, L. R. [13 Eq.] 307; Maple v. J. A. & N. Series, L. R. [23 Ch. Div.] 369; Dix v. Brooks, L. R. [15 Ch. Div.] 22; Burns v. Woodruff, 4 Wash. 48; Donald v. Becket, 4 H. L. Cas. 1774.) Before publication, literary property exists and will be protected by the courts. (2 Swanst. 424; 2 Itk. 342: Amb. 739; 1 Wm. Bl. 331; Id. 330; 4 Burr. 2408; 2 DeG. & S. 692; 1 McN. & G. 25; 4 H. of L. 815; Palmers v. De Witt, 47 N. Y. 532.) Treated in the nature of a trade secret, the plaintiff is entitled to protection and damages for violation of the secret obtained in confidence. (Browne on Trade-marks, § 545; Peabody v. Norfolk, 98 Mass. 408; Vickery v, Welch, 19 Pick. 523; Taylor v. Blanchard, 13 Allen, 373, 374; Jarvis v. Peck, 10 Paige, 118; Morrison v. Moat, 9 Hare, 255; Bryson v. Whitehead, 1 Sims. Ch. 74.)
    
      Charles B. Alexander for respondent.
    This is an equitable action, not an action at law. (Stevens v. Mayor, etc., 84 N. Y. 304; Hammond v. Morgan, 101 id. 186; Gould v. C. C. Bank, 86 id. 83; Kelly v. Downing, 42 id. 71; Alexander v. Katte, 63 How. Pr. 262; Taylor v. C. O. L. Ins. Co., 9 Daly, 489; Edson v. Girvan, 29 Hun, 424; Murtha v. Curley, 90 N. Y. 372; Covert v. Henneberger, 53 How. Pr. 1; Fisher v. C. O. L. Ins. Co, 20 J. & S. 179; Watson v. M. R. Co., 17 Abb. [N. C.] 296; Moores v. Townshed, 102 N. Y. 391; 
      Heywood v. City of Buffalo, 14 id. 534; Bockes v. Lansing, 74 id. 437; R. E. Bank v. Eames, 1 Keyes, 588; Mann v. Fairchild, 2 id. 112; Crosby v. Watts, 9 J. & S. 208; Wilson v. Mallett, 4 Sandf. 112.) Viewed as a bill in equity for an accounting and discovery, the demurrer must be 'sustained. (Phillips v. Phillips, 9 Hare Ch. 471; Root v. R. R. Co., 105 U. S. 189; Smith v. L. & S. E. R. Co., Kay, 408; Baily v. Taylor, 1 R. & M. 73; Jewett v. Bowman, 29 N. J. Eq. 174; Badger v. McNamara, 123 Mass. 117; Pom. Eq. Juris. § 178; Uhlman v. N. Y. L. Ins. Co., 109 N. Y. 421; Porter v. Spencer, 2 Johns. Ch. 169; Seymour v. L. D. Co., 20 N. J. Eq. 396; Dinwiddie v. Bailey, 6 Ves. 136.) The complaint shows no demand on the defendants for the information desired. (Lynch v. Willard, 6 Johns. Ch. 346.) There was no agreement here, because there was no assent of the-defendant to the offer. (Pars, on Cont. 475.) The mere use of the ideas or thoughts of another does not create a cause of action. (Stowe v. Thomas, 2 Wall. 547; Read v. Conquest,, 9 C. R. [N. S.] 755; Brown v. Piper, 91 U. S. 41; Morton v. N. Y. E. Infirmary, 5 Blatch. 116; Earle v. Sawyer, 4 Mason, 6; Whittemore v. Cutter, 1 Gall, 478; Palmier v. De Witt, 47 N. Y. 537; Woolsey v. Judd, 4 Duer, 379; Wheaton v. Peters, 8 Pet. 591; Millar v. Taylor, 4 Burr. 2303; Donaldsons v. Becket, Id. 2408; Gillett v. Bate, 86 N. Y. 94; Hesse v. Stevenson, 3 B. & P. 56; Folsom v. Marsh, 2 Story, 100; Keene v. Kemball, 16 Gray, 545; Merrill v. Calkins, 10 Hun, 495; Oakley v. Stanley, 5 Wend. 523; Angell on Water-courses, § 158; Gillet v. Mason, 7 v Johns. 16; Amory v. Flynn, 10 id. 102; Ferguson v. Miller, 1 Cow. 243; Hogg v. Emerson, 6 How. [U. S.] 437; Keene v. Clark, 5 Robt. 58.)
   Landon, J.

Assuming, without deciding, that if the defendant has wrongfully appropriated, or converted to its own use, the plaintiff’s property, or infringed upon his property rights or privileges, and has, without right, made use of them, it ought to respond to the plaintiff for such use, and should render an account to him respecting the same, the question arises upon this complaint whether the subject of the appropriation and use constituted property or property rights of the plaintiff.

The plaiiitiff does not allege that he was the exclusive possessor of the system. His letter to the defendant instances several companies which have used it to advantage, and states that “ underlying the whole system is a common sense plan of advertising.” Its use seems to be its disclosure. He does not. complain of the use that the defendant has made of it, but seeks to recover for it as if defendant had used his property. His case is unlike those in which the injunctive process of the court is sought to restrain the disclosure of a secret, or the publication of a letter, which may prove injurious to business or character.

Nor is his case like that of one who writes a tale or treatise, or play, or composes a piece of music, or paints a picture, or makes an inventionin such cases there is a production which can, by multiplying copies, be put to marketable use and its exclusive ownership be easily preserved and protected. Whoever infringes takes benefits or profits which otherwise would naturally come to the producer. Here the defendant has taken from the plaintiff no profits nor diverted them from him.

Without denying that there may be property in an idea, 01-trade secret or system, it is obvious that its originator or proprietor must himself protect it from escape or disclosure. If it cannot be sold or negotiated or used without a disclosure, it. would seem proper that some contract should guard or regulate the disclosure, otherwise it must follow the law of ideas- and become the acquisition of whoever receives it. (Peabody v. Norfolk, 98 Mass. 452.)

The allegation of the complaint that the defendant disclosed the system in confidence to the defendant is vague. It does not necessarily mean that the defendant agreed not to use it; it may mean something else. Defendant is at liberty to conduct its business in its own way; it obtained a valuable hint from, the plaintiff and assumed no legal obligation to pay the plaintiff if it should conclude to act upon it.

Plaintiff communicated his system without marketing it, It was valuable to the defendant. But what has plaintiff lost thereby ? He alleges nothing more than the loss of the sale to a single party who refused to buy. The system, we may assume, was valuable to those who had insurance to sell. Plaintiff does not allege that he had any to sell.' He does not allege that his system was marketable or might have been made so but for the use made of it by defendant.

A. wishes to sell his house and lot. B. tells him in confidence that C. desires to buy it, and B. solicits employment to negotiate the sale. A. declines, but acting, upon B.’s communication meets 0., and himself negotiates and closes the contract of sale. B. has no cause of action against A. He had information which he hoped to market, but he parted with it without finding any market.

The plaintiff himself communicated his system to the defendant to induce it to employ him, and thus used it as an attractive adjunct to his own self commendation or in corroboration of it. He could not induce the defendant to “ adopt this system and the writer with it.” Yet as the defendant acted upon the hint the plaintiff gave to it and found it profitable to do so, the plaintiff asks the defendant to pay him a percentage of its profits.

We do not think the complaint states a cause of action.

Judgment should be affirmed.

All concur, except Yank, J., not sitting.

Judgment affirmed.  