App. Div.] First Department, November, 1911. street; that the night watchman pulled the door open and she thereupon started to walk in and stumbled on a board which she did not know was there, as she had never entered that way before, and fell, sustaining the injuries for which she seeks to recover damages; and that the night watchman said nothing to her when he opened the door. The board on which the · plaintiff tripped or stumbled extended edgewise across the gateway and its top was about nine inches above the walk. It was designed to prevent the gate being forced in. The night watchman denied that he requested the plaintiff to accompany him and show him the window which had been left unlocked. He claims that she followed him and overtook him on his arrival at the Phipps mansion, and then informed him about the opening of the window, and that he unlocked the door, or gate, with a view to entering, not to obtain access to the house, but to close any window found opened, and that without any invitation from him, or knowledge on his part that she was to do so, the plaintiff immediately entered as the gate swung open. In the view we take of the case it may be assumed that the jury believed the testimony of the plaintiff instead of that of the watchman. Accepting the testimony of the plaintiff as to the purpose for which the gate was opened, then on the uncontroverted evidence the night watchman was not engaged in the performance of any duty which he owed to the defendant, which authorized him, as representing the defendant, to call the plaintiff to his aid, and would render the defendant liable for any act of negligence on his part. The only negligence charged is the failure on the part of the night watchman to inform the plaintiff of the location of this board and to warn her of the danger of tripping or stumbling over it. There was no negligent construction by defendant and no personal negligence on his part. He had sent no word to the night watchman by the maid either enlarging or changing his duties, and she did not ask him to assist her. At most, he was a volunteer in aiding the maid to obtain access to the house, as was also the plaintiff, for any act on her part with respect to aiding the maid or the night watchman in obtaining access to the house was not within the scope of her employment and likewise had not even First Department, November, 1911. [Vol. 146. been requested by the maid. She may have acted upon the theory that she owed the duty to the defendant by virtue of her employment in his service; but if this were correct she would be coservant with the night watchman and could not recover for his negligence. (Erjauschek v. Kramer, 141 App. Div. 545.) There are cases in the books in which an employer has been held liable for the negligence of an employee toward another called to his assistance in an emergency (Geibel v. Elwell, 19 App. Div. 285; but see Cannon v. Fargo, 138 id. 20), but we know of no principle of law, or precedent, for holding a master liable for the negligence of one volunteering services to an employee by which another, likewise volunteering services, sustains injury. Here there was no emergency. The housemaid was in the house and she opened the door within about twenty minutes and defendant had not even left his property in a negligent or dangerous condition. We do not deem it necessary to analyze the authorities cited, for we deem them all plainly distinguishable from the case at bar on the facts. We express no opinion on the question as to whether or not the acts and omissions of the night watchman would constitute negligence if defendant were liable therefor. If follows, therefore, that the judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event. INGRAHAM, P. J., SCOTT, MILLER and DOWLING, JJ., concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event. App. Div.] First Department, November, 1911. ELECTRICAL ACCESSARIES COMPANY, Respondent, v. SAMUEL S. MITTENTHAL, Appellant, Impleaded with ISAAC M. MITTENTHAL and Others, Defendants. First Department, November 3, 1911. Contract-assignment-assignment of patent-royalty - pleadingrelief beyond that demanded in complaint - trial-sufficient exception-appeal - changing theory of case-judgment-joint liability -right of one judgment debtor to appeal - notice of appeal - service on codefendant. Where part of the consideration for the assignment of a patent to the defendants was to be paid in royalties consisting of five per cent of the gross sales of the patented device made by them or their assigns, they are liable for this percentage of the gross sales made by a company incorporated by them one month after the assignment of the patent and to which they had transferred their rights thereunder. The plaintiff is not limited to a recovery of five per cent of the gross sales of the patented article actually manufactured and sold by defendants personally. Where the original complaint limited its demand to royalties on gross sales up to the commencement of the action, plaintiff cannot, over proper objection and exception, recover for royalties on sales made up to the time of the trial. Where, over defendant's objection that it was not within the issues, evidence as to the amount of sales between the commencement of the action and the time of the trial was received and an exception duly taken, the defendants' rights were preserved, although they did not object to the granting of plaintiff's motion to amend the complaint made at the close of his case. Nor can plaintiff sustain a judgment for royalties on sales intermediate the commencement of the action and the trial on the ground that one of the defendants in his answer claimed that the contract had been abrogated and thus entitled plaintiff to recover as for a total breach, where no such theory was presented on the trial. It was not necessary for both defendants to appeal from the judgment, although it was rendered against them on a joint liability. It seems, that one defendant held jointly liable with another cannot by appeal, without the other joining therein or without serving his notice of appeal on him, obtain relief which will affect the other defendant prejudicially. The fact that the notice of appeal describes the judgment as against appellant instead of against both defendants does not preclude him from obtaining a modification of the judgment not prejudicial to his codefendant. First Department, November, 1911. [Vol. 146. APPEAL by the defendant, Samuel S. Mittenthal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1911, upon the verdict of a jury rendered by direction of the court. Edward Potter, for the appellant. Justin S. Galland, for the respondent. LAUGHLIN, J.: The plaintiff was the owner of certain letters patent issued by the United States Patent Office for the improvement of electrical fountains, and it sold and assigned the same to the defendants. The consideration was paid in part in cash and the defendants agreed to pay the balance in royalties, consisting of five per cent on the gross sales of the electrical fountains made by the defendants or their assigns, until the indebtedness was paid. The defendants did not manufacture or sell any of the electrical fountains, and the appellant contends, on the opinion delivered by the Court of Appeals on a former appeal herein from an order striking out the appellant's answer as frivolous (Electrical Accessories Co. v. Mittenthal, 194 N. Y. 473), that the plaintiff can only recover herein for electrical fountains actually manufactured and sold by the defendants. The question presented by that appeal was merely whether the answer contained a denial of any of the material allegations of the complaint, and the question as to whether the defendants would be liable for royalties on electrical fountains manufactured and sold by others by their authority, or with their consent, was not presented for decision. It appears that within about one month after the sale and assignment of the letters patent to the defendants, they incorporated the New York Electric Fountain Company, for the purpose of manufacturing and selling the electrical fountains, and that they assigned their rights to that company. The basis of the recovery is a percentage on the gross sales of the electrical fountains thus manufactured and sold by the New York Electric Fountain Company, and we are of opinion that the defendants were properly held liable therefor. App. Div.] First Department, November, 1911. The plaintiff's demand in the original complaint was limited to royalties on gross sales down to the time of the commencement of the action; but it claimed the right to recover for royalties down to the time of the trial; and over the objection and exception duly taken of the appellant, that the evidence was not within the issues, and that the plaintiff was limited to the royalties earned before the action was commenced, the court permitted the plaintiff to show the amount of the sales intermediate the commencement of the action and the trial. At the close of the plaintiff's case it moved to amend the complaint to include these royalties and the motion was granted. No exception appears to have been taken, but the rights of appellant are preserved by the exception to the reception of the evidence. The defendant Jacobson pleaded as a defense the assignment to the New York Electric Fountain Company, and that this was made with the knowledge and consent of the plaintiff, and on the understanding and agreement that the defendants were to be released, and that the plaintiff was to look to said assignee for the balance of the consideration agreed to be paid by defendants to plaintiff under the assignment of the letters patent to them; but these facts were not set up in the answer of the appellant. On account of this contention made by the defendant Jacobson the plaintiff now claims that it was entitled to recover as for a total breach of the contract, and that these royalties constitute its damages; but it does not appear that this theory was presented on the trial. This action is at law, and the only breach shown on the part of the defendants prior to the commencement of the action was a failure to pay the royalties on gross sales down to that time. There was no allegation or proof of a total repudiation by defendants of their liability under their contract with plaintiff. The plaintiff was permitted to recover the sum of $422.75 for royalties on sales after the commencement of the action. This should, therefore, be deducted from the amount of the recovery. The respondent also contends that the judgment was rendered against the defendants on a joint liability, and that it was, therefore, not competent for one of the defendants to appeal alone. This contention is not sound. It may be that one defendant, who has been held jointly liable with another, |