Vulcan Detinning Co. v. Assmann — 149 N.Y.S. 1117

Majority

p. 1117

VULCAN DETINNING CO. v. ASSMANN et al.

(No. 6282.)

(Supreme Court, Appellate Division, First Department.

November 13, 1914.)

Headnote

Appeal from Special Term, New York County. Action by the Vulcan Detinning Company against Franz A. Assmann and others. From an order overruling demurrers to the complaint, certain defendants appeal. Reversed as to the Tin Products Company, and its demurrer sustained, and affirmed as to another defendant. See, also, 149 N. Y. Supp. 1117. C. H. Ayres, of New York City, for appellants Assmann and others. Clifford Seasongood, of New York City, for appellants Seward and others. Henry Wall-man, Edward S. Seidman, and Wm. H. Milholland, all of New York City, for respondent.

It will be sufficient for us to state the conclusions we have reached, without giving the processes leading to the result: (1) The denial of the motion heretofore made by certain of the defendants to separately state and number several causes of action is not a bar to their present demurrer. (2) The complaint states but one cause of action. How extensive may be the relief appropriate to these allegations is not before us. (3) What may be termed the special damages arising from the acts of Kern, alone or with agsociates, in wasting plaintiff's money and compelling it to pay abnormal prices for scrap, are all tied to the alleged general scheme to develop a new process at plaintiff's expense and to exhaust plaintiff's resources as a competitor of the projected Republic Company. (4~ No cause of action is alleged against the Tin Products Company. Its only part in the transactions was to sell to plaintiff an unexciusive license under letters patent owned by it, and later to sell the patents themselves to the Republic Company, retaining no beneficial interest therein. (5) The exact relation which Seward bore to the wrongs complained of is not clear, but in view of the general allegations affecting "the defendants" and the specific allegations that he was among the number to whom the new process was to be transferred, and who were parties in the formation of the Republic Company, we think the complaint sufficient as to him. The order appealed from is reversed, with $10 costs and diebursements as to the defendant the Tin Products Company, and the demurrer of the Tin Products Company to the complaint is sustained. On the appeal of the defendant Seward, the order is affirmed, without costs.

DOWLING, S., dissents from the reversal as to the Tin Products Company.