
    Frank P. Kobert, Respondent, v. National Machinery Company, Appellant.
    First Department,
    July 1, 1931.
    
      
      E. Robert Willcox of counsel [Delafield, Thorne, Burleigh & Marsh, attorneys], for the appellant.
    
      Morris H. Wolsky of counsel [Edward M. Evarts, attorney], for the respondent.
   Sherman, J.

The amended complaint has been held sufficient upon a motion for its dismissal for failure to state a cause of action.

Plaintiff asks that a contract annexed to the complaint be declared null and void because of an alleged mutual mistake of fact. The amended complaint makes that contract a part thereof and sets forth specifically the patents therein referred to. The mistake of fact is claimed to have been that plaintiff had the legal and equitable title to certain patents, applications, improvements and inventions when, as a matter of fact, he did not own them because he had previously assigned them to the Elektromatik Forging Machine Corporation. The pleading also states that defendant knew or ought to have known of said assignment.

The contract annexed to the complaint recites that plaintiff had already assigned these letters patent and pending applications to that same corporation, and that plaintiff, being a principal stockholder in that corporation, was desirous of having defendant execute an exclusive license agreement with it, and agreed as an inducement that if defendant entered into that license agreement plaintiff would communicate to it any improvement, addition or modification made, devised or acquired by him in the same inventions. Therefore, it appears that when the agreement was made the parties knew of the transfer previously made by plaintiff to the Elektromatik Forging Machine Corporation. The averments of the pleader cannot prevail over the fact recited in the agreement which was made part of the complaint.

The amended complaint does not clearly set forth facts constituting a cause of action and must be held insufficient. The motion to dismiss it should have been granted.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to dismiss the amended complaint should be granted, with ten dollars costs, and with permission to plaintiff, upon payment thereof, to serve within twenty days a further amended complaint.

Finch, P. J., Merrell, McAvoy and Martin, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, with leave to the plaintiff to serve a further amended complaint within twenty days from service of order upon payment of said costs.  