Diana Overland et al., as Executors of Leo D. Overland, Deceased, Appellants, v. Max Rothenberg, Defendant; Alex Eisenberg, Respondent, and Le Roy Foods, Inc., Appellant

Diana Overland et al., as Executors of Leo D. Overland, Deceased, Appellants, v. Max Rothenberg, Defendant; Alex Eisenberg, Respondent, and Le Roy Foods, Inc., Appellant. [MAJORITY] In an action to set aside a contract and for other relief, plaintiffs and defendant Le Roy Foods, Inc., appeal from an order denying their motions to dismiss a counterclaim interposed by defendant-respondent Eisenberg, to compel said appellants to account and for other relief. Order reversed, with one bill of $10 costs and disbursements, and motions granted, without costs. Plaintiffs’ testator made an assignment of 50% of any interest he had in and to a certain patent to the defendant Rothenberg and defendant-respondent Eisenberg. That assignment recited that defendant Le Roy Foods, Inc., was using and claiming the patent. If plaintiffs’ testator owned the patent, defendant-respondent became a joint owner of the patent and as such, could not obtain an accounting or a share in any funds received by another joint owner from the exploitation of the patent. If plaintiffs’ testator did not own the patent, he assigned nothing to defendant-respondent, who had no contractual relationship with the defendant Le Roy Foods, Inc. The counterclaim therefore states no cause of action against any party to the action. Wenzel, MacCrate, Schmidt and Beldóek, JJ., concur; Adel, Acting P. J., dissents and votes to affirm.