
    Kathi Lang, Respondent, v. Julius Minck, Appellant.
    Second Department,
    November 29, 1907.
    Sale, of secret process — failure to show quality of product—appeal — questions raised by a motion to set aside verdict.
    A plaintiff, suing to recover for the defendant’s breach of contract to pay for a secret formula for making artificial champagne “ not distinguishable from and equal in its taste, appearance and quality to real champagne,” is not entitled to recover if she fails to prove that the product produced by the formula had all the promised qualities.
    The question as to whether a verdict is contrary to and unsupported by the evidence comes up on appeal from an order denying a motion to set aside the verdict and for a new trial.
    Hooker, J., dissented.
    Appeal by the defendant, Julius'Minck, from a judgment of the County Court of Kings county, in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of May, 1907, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      Thomas F. Magner [Nathan Ballin with him on the brief], for the appellant.
    
      August P. Wagener, for the respondent.
   Gaynor, J.:

The plaintiff did not make out a case, and the motion to dismiss should have been granted. The allegations of the complaint may welléxcite credulity,'which is all the more reason why care should have been taken to see that evidence of them was given before they should be decided to be true.

The complaint is (without regard to verbiage and immaterial allegations) that the plaintiff agreed to deliver to the defendant a secret formula'or receipt for making artificial champagne, “not distinguishable from, and equal in taste, appearance and quality to real champagne ”, and teach and impart to him the art, skill and secret of making the same, in consideration of which the defendant agreed to pay her $1,000, provided that on a trial under the plaintiff’s direction the result should be such champagne; that the plaintiff gave the defendant the said secret and receipt for making such champagne, “ enumerating and describing the articles, ingredients, compounds and parts in which the same were used and mixed ”, etc., but he refused to receive her instructions, or have the trial of the result under her directions, but tried himself and failed. The prayer was for damages for breach of the contract. The answer is a general denial. The verdict was for $1,000 damages. There was no evidence that the plaintiff’s formula or receipt would produce artificial champagne “ not distinguishable from, and equal in taste, appearance and quality to real champagne”. She testified that she had made it in France, and that “ it always turned out. right That is a mere loose conclusion. It might have been right, of its kind, but was it equal to real champagne “in taste, appearance.and quality ”, and not distinguishable from it ? If it was, it was the same as the real article, for taste, appearance and quality is all there is of it, and one possessing the secret of it would do the greatest foolishness ever known by giving such secret away for $1,000. Without proof that the formula was what it is alleged to be, there was no basis for damages; If it were anything less, the plaintiff broke the' contract when she delivered it, and if it Were not it is most astonishing that she delivered it at all. If some of the article had been produced on the trial, the judge and jury might have got at least some notion whether it was the same “in. taste, appearance and quality” as'genuine champagne,

If the motion to dismiss be scant, still the question, of the verdict being contrary to evidence and unsupported, comes up on the motion to set aside the verdict and for a new trial.

The judgment and order should be reversed.

Woodward, Rich and Miller, JJ'., concurred; Hooker, J., dissented.

Judgment and order of the County Court of Kings county reversed and new trial, ordered, costs to abide the event.  