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

133 N.Y.S. 383 Court N.Y. App. Div. Decision date 1912-01-19 English

Delivered by CLARKE, J.

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p. 383
WERTHER-RAUSCH CO. et al. v. NATIONAL ASS’N OF EMPLOYING LITHOGRAPHERS et al.
(Supreme Court, Appellate Division, First Department.
January 19, 1912.)

Headnote

Appeal from Special Term, New York County.
Action by the Werther-Rausch Company and another against the National Association of Employing Lithographers and others. From a judgment of. Special Term ( 61 Misc. Rep. 150 , 113 N. Y. Supp. 110 ) dismissing the complaint and with an allowance for costs, etc., to plaintiffs, defendants appeal in part.
Reversed as to part appealed from, and judgment directed.
Argued before INGRAHAM, P. J., and McLAUGHLIN, MILLER, LAUGHLIN, and CLARKE, JJ.
Wile & Oviatt (Charles E. Rushmore, of counsel, Henry Root Stern, on the brief), for appellants.
J. Aspinwall Hodge, for respondents.

This case is similar to Sackett & Wilhelms Lithographing & Printing Company et al. v. National Association of Employing Lithographers et al., 133 N. Y. Supp. 372 , 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 Pittsburgh 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. Lithographing & Printing Company v. National Association of Employing Lithographers, 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., concur. INGRAHAM, P. J., and LAUGHLIN, J., dissent.

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