Peelle Co. v. Raskin , 199 A.D. 938 ( 1921 )

Judgment and order reversed and new trial granted, with costs to appellant to abide the event. On the face of the complaint this action in the last analysis is an action based upon a contract, and is not an action to enjoin infringement of the patent. If the plaintiff succeeds, the relief granted should be such as is proper in an action based upon a breach of contract. (Wise v. Tube Bending Machine Co., 194 N. Y. 272; Hyatt v. Ingalls, 124 id. 93; Herzog v. Heyman, 151 id. 587; Comerma Co. v. Comerma, 182 App. Div. 576.) Blackmar, P. J., Mills, Putnam, Kelly and Maiming, JJ., concur.