
    Blake & Johnson, Resp’ts, v. Stephen H. Krom, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed January 5, 1891.)
    
    Trial—Direction of verdict.
    . Where the only defense in an action is a counterclaim which the evidence is insufficient to substantiate, a direction of a verdict is proper.
    Appeal by defendant from a judgment for $1,532.71, entered upon a verdict directed by the court, and from an order denying defendant’s motion for a new trial.
    The answer set up as a counterclaim that the defendant, owning certain patterns, drawings and gauges, necessary for the manufacture of mining machinery of which he was the inventor, intrusted the same to plaintiff, a manufacturing corporation, to be used by it solely for the manufacture of such machinery in the course of defendant’s business and solely upon his orders; that plaintiff received said patterns for such use alone and was bound by agreement, both express and implied, not to use the same for any other purpose than that for which it received them, and that in violation of such agreement and the defendant’s rights in his own patterns the plaintiff made and sold such machinery without defendant’s knowledge or sanction, and to his damage in amount greater than plaintiff’s claim.
    It is claimed by appellant that the contract under which the defendant’s patterns, etc., came into plaintiff’s hands forbade their use without consent of the defendant; that the contract forbidding any use of the patterns, it was only necessary for the defendant, in order to reach the jury, to give proof reasonably tending to show that plaintiff did dispose of machinery made under the patterns without defendant’s consent, and that damage to defendant resulted, and that the court erred in instructing the jury that there was no evidence to support the counterclaim.
    
      Herbert T. Ketcham,, for app’lt; Michael H Oardozo, for resp’ts.
   Per Curiam.

The evidence given by the defendant was insufficient to substantiate the counterclaim set up in the answer, and as the claim of the plaintiff was admitted to the extent of the amount for which the verdict was directed, the case was correctly disposed of.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., Freedman and Ingraham, JJ., concur.  