Werther-Rausch Co. v. National Ass'n of Employing Lithographers

Majority

p. 613

Werther-Rausch Company and William Werther, Respondents, v. National Association of Employing Lithographers and Others, Appellants.

First Department,

January 19, 1912.

Headnote

See head note in Sadcett & Wilhelms L. &P. Co. v. Hat. Assn. Lith. ( 148 App. Div. 598 ).

Appeal by the defendants, the National Association of Employing Lithographers and others, from part of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of July, 1909, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint

p. 614

but granting costs and an extra allowance to the plaintiffs in an action for an injunction.

Charles E. Rushmore of counsel [Henry Root Stern with him on the brief]; Wile & Oviatt, attorneys, for the appellants.

J. Aspinwall Hodge, for the respondents.

This case is similar to Sackett & Wilhelms L. & P. Co. v. Nat. Assn. Lith. ( 148 App. Div. 598 ) and was tried at the same time and upon the same evidence.

In this case William Werther was the member of the defendant corporation representing the plaintiff corporation, and the note was made by him and indorsed by the plaintiff corporation. ■ It was in evidence that the Sackett & Wilhelms Company were the owners of practically all of the stock of the Werther-Rausch Company and that the two concerns had their works in the same building, and Mr. Bunker testified that at the Pittsburg convention held in May, 1906, he was there as the representative of both companies, holding the proxy of both and acted at that convention in behalf of both of those concerns.

For the reasons stated in the opinion in Sackett & Wilhelms L. & P. Co. v. Nat. Assn. Lith. ( 148 App. Div. 598 ), handed down herewith, we think the defendants were entitled to a dismissal of the complaint and that the further provisions of the judgment appealed from were unwarranted.

The judgment, therefore, so far as appealed from should be reversed, with costs, and judgment directed to be entered dismissing the complaint, with costs to defendants.

McLaughlin and Miller, JJ., concurred; Ingraham, P. J., concurred in part; Laughlin, J., dissented.

Judgment so far as appealed from reversed, with costs, and judgment directed to be entered dismissing the complaint, with . costs to defendants. Order to be settled on notice.