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PAGE PAGE The Hudson River R.R. Co., JohnSchanck 0. Morris...

464
son 0.......

298 Shepard 0. Heineken.

525 The Hudson River R.R. Co., Priest Shearman 0. The Niagara Fire In

595 surance Co.....

470 The Knickerbocker Ice Co., Parrott Sherwood o. Wilson.

684
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93 Smith, Harrison o

669 The Massachusetts Life Insurance Smith, Hodnett o.. 401 Co. v. Carpenter....

734 Smith, Premo o.

467 The New Jersey Mutual Life Ins. Southwick 0. Southwick...

234
Co., De Campo

481 Speyer o. Stern..

516 The Niagara Fire Ins. Co., ShearStern, Speyer o.

516
man v...

470 Sterens, Dabney o.

415 The People ex rel. Meyer v. HartStewart, Field o.

193
man.....

576 Stoddard o. Denison.

54 The Standard Life Ins. Co., Stokes o. Brown.. 457 Ahern v......

441 Stone, Henderson o.

468
Thomas v. Payne..

605 Sunderland o. Westcott...

260
Townsend v. Hendricks..

503 Swan, Phelps o. 696 Trevor, Nowlan v..

67 Tucker 0. Meeks...

736 T

Talmage 0. Nevius

38

V
Tappan, Nimmons 0......

652
Van Pelt o. Otter..

... 202 Temple, The Bank of the Commonwealth 0.....

344 The Bank of the Commonwealth

W t. Temple......

344 The Board of Water Commission

Walter, Quigley 0....

175 ers o. Burr. 25 Wannemacker 0. Davis....

272 The Central National Bank 0. Ward 0. The Central Park, N. &

194
E. R. R.R. Co......

701 The Central Park, N. & E. R. R.R.

Westcott, Sunderland v.

260 Co., Ward 0... 701 Wetmore, Lass v.......

209 The Commercial Warehouse Co. 0.

Whitlock, McAndrew v...

623 Graber..... 638 Wilson, Sherwood o.

684 The East River National Bank, Romertze o.....

82

Arthur ....

Y The Great Western Ins. Co., Röl-. 275 | Youngs o. Kent.

... 248

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CAUSES ARGUED AND DETERMINED

IN THE

SUPERIOR COURT

OF THE

CITY OF NEW YORK

AT GENERAL TERM.

GEORGE W. HART, PLAINTIFF AND RESPONDENT, v. DENNIS M. FITCH, AS SURVIVING EXECUTOR OF THE LAST WILL AND TESTAMENT OF STEPHEN A. DENNIS, DECEASED, DEFENDANT AND APPELLANT.

Under a contract whereby D., as the owner of one half of a patent, in consideration of the assignment to him of another quarter by the inventor, agreed with said inventor that be would proceed, with funds to be furnished by him, with the construction and completion of a machine according to the plan of said patent, and put the same into operation; and that after such machine had been made and completed, the same should be used and applied to the promotion of the formation of a stock company, the capital of which was not specified, in which D.'s interest in the patent should be incorporated as a part of the capital stock, and that whatever stock in said company, when formed, should be represented by the quarter of the patent still remaining the property of the inventor, should be transferred to said inventor free of all assessment, charge, or expense, etc.;

Held that D. was bound to put his interest in the patent into the company under all circumstances, but the inventor might elect whether he would do so or not; that the construction and completion of the machine was a condition precedent to the formation of the company; that the inventor had a right to refuse his assent to the formation of a company, as long as this condition remained unperformed ; that after the organization of a company without such previous performance and the refusal of the inventor to join, which refusal resulted in the formation of the company upon D.'s

Statement of the Case.

three-quarters interest in the patent, the inventor could not, after all the stock had been issued and disposed of, change his mind and insist to come in, but that he might maintain an action for the recovery of the damages sustained by him genera in consequence of D.'s breach of the contract.

Before MONELL, JONES, and FREEDMAN, JJ.

[Decided December 4, 1869.)

Appeal from a judgment entered upon the report of a referee.

The action was to recover damages for a breach of two written contracts.

The referee found the following facts :
That the defendant's testator made the following agreement:

Whereas, Carmi Hart has, this day, by instrument in writing bearing even date herewith, transferred and assigned to me, Stephen A. Dennis, the one undivided equal fourth part of certain letters patent of the United States, issued to said Hart for a machine for cutting veneers: Now, in consideration thereof, and other considerations received, to my full satisfaction, I, the said Stephen A. Dennis, do hereby covenant and agree with said Hart, that in case certain contemplated arrangements agreed upon by and between me, the said Dennis, and Edward White, for forming and organizing a stock company, under the laws of the State of New York, shall not be completed and successfully carried ont, which said company is to have the said letters patent and certain other property for its capital, that in such case the said Dennis will proceed with the construction and completion of a large machine for cutting veneers, according to the plan described in the said letters patent, and will put the same into operation, and that he will appropriate and expend ten thousand dollars ($10,000), if necessary, for such object; and that, after such machine is made and completed, the same shall be used and applied to the promotion of the formation of a stock company, in which the interest of the said Dennis in said letters patent shall be incorporated as a part of the capital stock; and it is understood and agreed, on the part of said Dennis, that whatever stock in the said company, now or hereafter to be formed,

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