I concur in the views expressed by the presiding justice, but desire to add what I believe to be additional grounds for reversal of the order appealed from.
It appears from the present complaint that plaintiff’s alleged secret process was “ disclosed to the public ” over ten years before the commencement of this action. The complaint avers that defendant made the process public in various ways, in breach of a confidence which, by express agreement, it had undertaken to preserve. The complaint fails to show that plaintiff ever did anything to preserve his right of secrecy for almost fifteen years, although defendant during that time had obtained a patent on the secret process, and devoted it to the widest use. I think that defendant acquired a property right by this open, public and notorious use and possession of the process, under claim of right, for a period which, under the law, would bar an action for the recovery of property by the real owner. There is the rule as to tangible personal property (Lightfoot v. Davis, 198 N. Y. 261), and I see no reason why it would not apply to intangible personal property, and especially to property of the present nature which depends upon secrecy for its very existence. Under the circumstances any action for an alleged continuing injury to property, or for breach of confidence, would be nonexistent or barred by the Statute of Limitations in 1941, because (1) there could be no injury suffered by plaintiff to property which had been lost or destroyed, and (2) any causes of action against defendant for using or destroying plaintiff’s property' *503accrued when the wrong was committed. The last date when such a wrong could have occurred herein would necessarily be at a time when plaintiff owned property in the secret process, which was more than ten years before the commencement of this action.
Assuming that plaintiff’s property rights merged into the patent obtained by the defendant, such merger occurred when the patents were procured in 1929. Any cause of action for such conversion accrued at that time. Subsequent use under the patent would merely establish a possible basis for further damage.
In whatever light the complaint be considered, the cause of action pleaded therein would appear to be barred by the Statute of Limitations, and the motion to dismiss on that ground should have been granted.
Townley and Dore, JJ., concur with Martin, P. J.; concurring opinion by Callahan, J.; Cohn, J., dissents and votes to affirm,
Order reversed, with twenty dollars costs and disbursements, and the motion to dismiss the complaint granted.