Brunner v. Kaempfer — 39 N.Y.S. 1121

Majority

p. 1121

BRUNNER, Respondent, v. KAEMPFER, Appellant.

(Supreme Court, Appellate Division, First Department.

May, 1896.)

Headnote

Action by Marie Brunner against Max Kaempfer. Motion for reargument. See 37 N. Y. Supp. 700 .

The decision of the court found that- the defendant paid the stipulated royalty, and, on the trial of the action, further accounted for liis sales to and including the 20th day of April, 1895. The judgment ordered no accounting, and directed no recovery by the plaintiff against the defendant, which would have followed had anything been due on such an accounting in court. There is nothing, therefore, to entitle the plaintiff to any judgment, as it did not appear that there was anything due from the plaintiff to the defendant on the accounting; and, as nothing was due, plaintiff

p. 1122

was not entitled to enter judgment in such an action, if brought. There is no finding and no evidence that the defendant had ever threatened to manufacture these belts when the elastic on hand January 1, 1895, had been used up, and the court below held that they had a right to manufacture such elastic into belts. _ Ñor is there the slightest justification for saying that, under the agreement, plaintiff had any right to royalties before the belts were accurately pianufactured. If plaintiff had been dissatisfied with the judgment as directed by the court, as to the right to manufacture the elastic on hand, she should have appealed. As she did not appeal, and on the decision rendered the defendant was entitled to a judgment, this court could do nothing except direct such judgment. The injunction was entirely unauthorized by anything that appeared in the decision, and, upon the decision as filed, the defendant was entitled to judgment. Motion for reargument is therefore denied, with $10 costs.