Plaintiff was the inventor óf a metal, basket. ín September, 1896, ho entered into an agreement with the defendant whereby the ■ latter agreed to manufacture said patented baskets, paying the plaintiff ten cents for each basket so, “ made and sold by the party, of the second part, during the continuance of this agreement.” _ The agreement further provided that the plaintiff 'was to furnish to the defendant the tools which had been used ■ in the manufacture of said baskets and which were then in the possession of the defendant.
An action was subsequently commenced by the plaintiff to recover the royalties, his due, by reason of the manufacture and sale of these baskets, and we assume, although the complaint in that action is not before us, asking' also for a cancellation of the agreement. The action was tried before a referee, and in. his report he directed judgment-in favor of the plaintiff, canceling the contract and awarded a money judgment. The report. further directed the defendant to deliver to the plaintiff the todls and machinery furnished him. Judgment was entered July 15, 1903, conformably to the report adjudging that the contract be forfeited and canceled,”, and in-other respects following the conclusions of law determined by the referee. The defendant appealed to the Appellate Division, giving the usual undertaking to stay the execution. The judgment was affirmed (90 App. Div. 611), and upon appeal to the Court of Appeals another undertaking was given also to. stay execution, pursuant to section 1327 of the Code of Civil Procedure. The appeal was dismissed in the Court of Appeals (179 N. Y. 514). Mo undertaking was given-as is permitted by sections 1328 and 1329 of the Code of Civil- Procedure to stay that part of the judgment which directed thedelivery of the tools to, the plaintiff, so that .he might at any time have obtained tlie possession of that property.
After tjie decision by the Court of- Appeals this action was commenced. The complaint sets- out the agreement between the parties, the judgment recovered in the prior action, the appeals therefrom, *449reciting the conditions of the two undertakings, which merely stayed execution, and the termination of that action. In the 7th paragraph it is alleged that “ during the pendency of said appeals and until October 10,1904,” the defendant continued manufacturing and selling said baskets and has now a large quantity of the same on hand, for each of which it is liable to pay the plaintiff ten cents. The theory of the cause of action seems to be that the defendant is liable to account to the plaintiff for manufacturing and selling the baskets pending the appeal, as if the contract was still in force, although asserting its invalidity. The judgment abrogated the agreement between the parties. A remedy available to the plaintiff by injuncr tion, or for an infringement of his patent, or to recover damages independently of his agreement, or to adopt any other course to which he may have been entitled, could have been resorted to immediately upon the entry of .the judgment. The undertaking did not assume to stay any remedy permissible to the plaintiff, but only prevented him from collecting the sum awarded by the judgment. He relies upon the annulment of the contract which dates from the entry of the judgment. The plaintiff may be entitled to recover the contract price for baskets made and sold during the pendency of the action and prior to the entry of the judgment, but the action is not brought for any stieh purpose. Such an action would rest upon the existing agreement, while the basis of the one now pending is' upon the dead contract and made so by a judgment recovered at the instance of the plaintiff. He cannot annul the agreement and still continue to reap the fruits of it. The rights of' the par-ties are the same as if no contract had ever been made, and there is no claim in the complaint that new life has been imparted to it or that it has been recognized in any way by the. defendant as a subsisting agreement.
The plaintiff does not ■ claim that the agreement has been reinstated, nor does he seek its revival. Mor does he elect to waive the judgment of cancellation. The allegation that the defendant has continued manufacturing “ within the terms, of said contract ” is . a conclusion of law. At best the plaintiff must allege that he elects to consider the contract in force. He cannot in one clause insist upon its abrogation . for his own benefit and in the succeeding one *450assert its validity also for his own benefit. He must adopt one course or the other. He may waive the judgment, but he does not do this.
Upon the entry of the judgment a new relation arose between the parties., tí that is to be altered at the instance of the plaintiff he must set forth facts showing his purpose or that of -both parties' to disregard it.
The cbmplaint alleges that the _ intiff demanded possession of the tools, furnished to" the defendant, as provided in the agreement, and the failure to deliver the same, and seeks to recover their value, but that alleged cause of action was withdrawn by the plaintiff on the trial. . .
The judgment and order should be affirmed',, with costs.
Hiscock, J., concurred.
Judgment and order reversed • and new trial ordered, with costs "to the appellant to abide event.