The allegations of the complaint seek to charge the defendants with misappropriation of a device invented by plaintiff, knowledge of which came to them through their relationship as an advertising agent for plaintiff, and upon which they subsequently wrongfully, by the use of false affidavits, obtained a patent.
' If the defendants, in violation of a fiduciary relationship with the plaintiff, misused to their own advantage confidential information received from him and appropriated his device, the State court might have jurisdiction under Underhill v. Schenck (238 N. Y. 7). But this complaint is devoid of any allegations other than conclusions of law that there was a fiduciary relationship,, that there was any misuse of confidential information, or that the" defendants’ patent covered substantially the same device.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion to dismiss the complaint granted, with ten dollars costs, with leave to plaintiff to serve an amended complaint upon payment of said costs.
Present —Dowling, P. J., Merrell, Martin and Proskauer, JJ.
Order entered on May 20, 1926, reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and appeal from order entered on July 1, 1926, dismissed, with leave to the plaintiff to serve an amended complaint within twenty days from service of order upon payment of said costs.