Misc.] Supreme Court, April, 1896. invention, and before he can be restrained from the enjoyment of the rights guaranteed to him in his capacity as a citizen of the United States, it must be established that he has parted with these rights for a good and sufficient consideration. Public policy suggests that "to promote the progress of science and the useful arts," letters patent shall issue to authors and inventors, and a contract which contravenes public policy, and which seeks to give a monopoly of an advance in "science and the useful arts to an individual or corporation, cannot be presumed; it must be clearly established. That is the real question at issue in this action; whether the defendant has parted with his right of property in the invention now in use in the shop of the plaintiff. Mr. Justice Brewer, in delivering the opinion of the court in Solomons v. U. S., 137 U. S. 342, says: "An employee performing all the duties assigned to him in his department of service may exercise his inventive faculties in any direction he chooses, with the assurance that whatever invention he may thus conceive and perfect is his individual property. * * But this general rule is * subject to these limitations. If one is employed to devise or perfect an instrument, or a means for accomplishing a prescribed result, he cannot, after successfully accomplishing the work for which he was employed, plead title thereto as against his employer. That which he has been employed and paid to accomplish becomes, when accomplished, the property of his employer. Whatever rights as an individual he may have had in and to his inventive powers, and that which they are able to accomplish, he has sold in advance to his employer. So, also, when one is in the employ of another, in a certain line of work, and devises an improved method or instrument for doing that work, and uses the property of his employer and the service of other employees to develop and put in practical form his invention, and explicitly assents to the use by his employer of such invention, a jury, or a court trying the facts, is warranted in finding that he has so far recognized the obligations of service flowing from his employment and the benefits resulting from the use of the property and assistance of coemployes of his employer, as to have given to such employer an irrevocable license to use such invention." This doctrine was strongly asserted in the case of McClurg v. Kingsland, 1 How. 202, quoted by Mr. Justice Brewer in the above case. It is proper to consider, therefore, the testimony bearing upon the question of a contract between the plaintiff and defendant, as tending to establish the existence of such a, contract as would Supreme Court, April, 1896. [Vol. 10. justify this court in continuing the order restraining the defendant from making use of the photographs, drawings, plans and specifications now in his possession in the securing of letters patent to protect his invention. It will probably not be seriously contended on the part of the plaintiff that there was any contract between the parties to this action, at the time the defendant, Myers, entered the employ of the plaintiff, which contemplated the transfer of any inventions which the said defendant may have made prior to such employment, or that there was any contract other than one carrying the obligations of an employee in a responsible position to an employer. The plaintiff, in its verified complaint, admits having gone to the defendant, seeking his services, because the men in his employ were unable to operate certain machines, and, while it might be conceded that his inventive faculties were purchased in the contract, in so far as the operating of the machines then in use were concerned, there is nothing to establish the fact that his previous inventions were involved, and the presumption is untenable, because the rate of compensation, $3.50 per day, was not excessive or unusual in the employment of men capable of taking charge of and operating an important manufacturing plant. The defendant, his wife, his son and his daughter, in their affidavits, state that there was no mention of any invention in either of the two talks which occurred between the contracting parties prior to the defendant entering the employ of the plaintiff, and there is no direct assertion of the fact on the part of the plaintiff. This brings us to the time it was found necessary to construct a new machine for the use of the plaintiff. Charles F. Walther, vice-president and manager of the plaintiff company, says in the complaint, that in March, 1895, the defendant informed "plaintiff he could materially improve such machine (the reamer and facing machine) by mechanical improvements which he had made." This seems to have been the first intimation which the plaintiff had that the defendant was an inventor, and Mr. Walther, in behalf of the plaintiff, demanded to see the drawings before deciding what action he would take. After consulting an attorney, and being advised that he would surrender no right in the invention by having an experimental machine constructed, the defendant produced the drawings, and after having them explained to him, the manager of the plaintiff company ordered the defendant to begin the work of constructing the machine. There is no allegation on the part of the plaintiff that there was any consideration to the de Misc.] Supreme Court, April, 1896. fendant other than the privilege of constructing an experimental machine, at the expense of the company, and Mr. Walther is careful to assert in assert in his affidavit opposing this motion, "That at no time was there any agreement made as to the length of time during which defendant should be employed by the plaintiff; but in the agreement that machines and mechanical processes should be kept secret and not patented it was agreed and understood that the same should be without reference to the employment of defendant by plaintiff." There was no increase of wages; no agreement as to the length of term of service, and absolutely no advantage to flow to the defendant by reason of his invention, made prior to his employment by the plaintiff, this latter fact being established by the testimony of at least four competent witnesses, and practically conceded in the complaint, where the "plaintiff demands judgment against said defendant adjudging and decreeing it to be the sole and exclusive owner and holder and exclusively entitled to the right to use and employ the said several improved machines, devices and mechanical processes designed and made by said defendant in plaintiff's shops and while in its employ, includ ing the machines designed prior to said employment and reduced to practice and constructed and employed in plaintiff's shops by said defendant while in plaintiff's employ." On the contrary, the defendant swears that there was no agreement, except that the plaintiff was to have the use of the experimental machine, and that he distinctly gave notice that he was going to have the invention patented. In this he is sustained by the testimony of his son, and collaterally by one or two other witnesses. The testimony, so far from establishing the fact of a contract existing between the parties to this action warranting the continuance of this injunction, is overwhelmingly against it, and, as it does not appear that any photographs, drawings, plans or specifications of any of the machines, tools or appliances of the plaintiff, aside from the experimental machine, designed and invented by the defendant prior to entering the employ of the plaintiff, were taken or removed from the shops of the plaintiff, to deny this motion would be such a substantial violation of individual rights that it could not be justified upon any correct conception of public policy. The motion to dissolve the injunction is, therefore, granted, with $10 costs. Motion granted, with $10 costs. Supreme Court, April, 1896. [Vol. 16. Matter of the Application of LORENZO D. COLLINS and JOHN H. KEMP. Matter of the Application of JAMES H. GODFREY and HENRY L. ENGEL. Matter of the Application of LORENZO D. COLLINS and FRANK P. GROAT. (Supreme Court, Albany Special Term, April, 1896.) 1. Office-Vacancy. A newly-created office which is not filled by the tribunal which created it becomes vacant on the instant of its creation for the purpose of an appointment or election. 2. Towns Election of supervisor and town clerk in newly-erected. Where a town is divided and a new town erected therefrom during the term of office of the supervisor and town clerk of the original town, there is a vacancy in those offices in the new town until the first town meeting, at which they are to be filled only for the remainder of the unexpired term, and not for a full term. CERTIORARIS to review the determination of the town clerk of the town of Colonie. Arthur L. Andrews, for republican and union candidates. Norton Chase and Frederick E. Wadhams, for democratic candidates. George L. & George W. Stedman, for town clerk. CHESTER, J. These are applications to review the determination of the town clerk of the town of Colonie, in refusing to print the names of candidates for supervisor and town clerk on the ballots to be furnished at the ensuing annual town meeting of such town. It appears that three certificates have been filed with him; one certifying the nomination by the democratic party of James H. Godfrey, as a candidate for supervisor, and of Henry L. Engel, as a candidate for town clerk; one by the republican party, certifying Misc.] Supreme Court, April, 1896. Lorenzo D. Collins, as a candidate for supervisor, and John H. Kemp, as a candidate for town clerk; and one by twenty-five citizens, certifying Lorenzo D. Collins and Frank P. Groat, as independent nominations, known as union nominations, for the offices of supervisor and town clerk respectively. Three cases are submitted, but as they present exactly the same questions, they will be considered as one. The clerk has decided that the certificates above mentioned are defective in that they contain names of candidates for the offices of supervisor and town clerk, and that said offices are not to be filled at the coming town meeting becauso the term of the present incumbents of the offices will not expire until 1897. For these reasons he has decided to refuse to print the names so certified upon the ballots which he is required to print and furnish. The question here is as to the correctness of the town clerk's decision. The town of Colonie was organized pursuant to chapter 975 of the Laws of 1895, passed June 7 of that year, and by section 10 of the act it took effect immediately. Section 1 of that act provided that all that part of the present town of Watervliet not included within the limits of the village of West Troy, and of the village of Green Island, is separated from that part of the said town included within such villages and erected into a separate town to be hereafter known as the town of Colonie. Section 2 provided that all the rest of said town, consisting of the villages of West Troy and Green Island, shall be the town of Watervliet. Section 3 provided that the first town meeting of the town hereby erected shall be held at the "town house" at Lathams Corners, on the 2d day of April, 1895, providing this act shall become a law six days prior to that date, and if such shall not be the case, then on the third Monday after this act shall become a law, and thereafter the same shall be held on the same day that other towns hold their annual meeting in Albany county. Section 4 provided that there shall be elected at the said first town meeting, by ballot, one supervisor, one town clerk and the other town officers named in the section. None of the terms of office of any of these town officers are fixed by section 4. The terms of office of the assessors are provided for by section 5; of the commissioners of excise by section 6; of the |