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We agree with the Appellate Division as to its construction of the contract between the parties (Wing v. Ansonia Clock Co.,
102 N.Y. 531 ; Ebert v. Loewenstein,42 App. Div. 109 ; affd. on opinion below,167 N.Y. 577 ); but we think the Appellate Division should have ordered a new trial instead of dismissing the complaint. The plaintiff in his complaint alleged that he had demanded of the defendant a re-assignment to him of the patents referred to in the contract and that the defendant had refused to re-assign the same. The issue formed upon this allegation does not appear to have been determined by the trial court.The judgment of the Appellate Division should, therefore, be modified accordingly; costs to abide event.
CULLEN, Ch. J., GRAY, O'BRIEN, BARTLETT, VANN and WERNER, JJ., concur.
Judgment accordingly.
Document Info
Citation Numbers: 76 N.E. 1092, 183 N.Y. 548
Judges: HAIGHT, J.
Filed Date: 12/12/1905
Precedential Status: Precedential
Modified Date: 1/12/2023