The evening times., 1896-07-21

a trustee aud chairman OF the executive
committee. Hon. II. II. Parker and Gen.
Martin I. McAahon were among the stock
holders. But Soon afterward. according
TO Gen. Averill's statements, Mr.. Barber
and his friends got control OF the company,
and destroyed it. They then substituted
The Barber Company, got two OF the De
smedt patents for $50, extended the claim
on one of them SO as to cover the AveriIl
process, and commenced business. Gen.
Averill was thus practically frozen out,'
and excluded from all participation in the
profits arising from his work and invest
ments.
In 1883 Gen. Averill brought suit, with.
the late Gen. Thomas Ewing as his counsel,
In the New York supreme Court. The
matter was first brought before the late
Justice Van Worst, who died while it was
pending. 1t was tried again before Judge
Edward Patterson, and in 1887 was de-
cided in nearly every point II, the complain
ants favor. Mr.. George b. Morris was ap-
pointed referee, to ascertain the profits
due Gen. Averill, and Mr.. Theron G. Strong
receiver. Mr.. Barber appealed to the
general term of the New York supreme court,
and was beaten there also.
FIGHT HAS BEEN A LONG ONE.
The referees report, just confirmed by
Judge Lawrence, at Buffalo, gives Gen.
Averill S476,197.1S, and his friends here,
IN army circles and outside, are rejoicing
In his long contest he has become greatly
reduced in means, and in addition has fallen
into bad health in old age. His Judgments
only for profits up to 1887, as his patent
expired then His attorney claimed share
in profits on contracts made prior TO 1887,
but TO be executed after that date. This
was disaliowed by the referee, and IL is
understood Mr.. Edward Hassett, who took
hold as attorney after Gen. Ewing's death,
has suggested an appeal on that point 1t
is doubtful If such action will be taken
The American Asphalt Paving Company
in 1894, in the process OF litigation went
into the hands of Gen. Arson G. McCoos
as receiver. He has brought suit against
Mr.. Barber individually and against the
Barber Company in New York AMI in West
Virginia for It's infringement OF the Averill
patents. 1t is understood he will bring
| suits also against all cities where the paw
ing has been put down, and force them to
hoNC ICSouisc " luciT from IHe bdr-
her Company to protect themselves.
At the offices of the Barber Company here
the officials said they knew very little Of
this litigation. 1t had been going on before.
and Gen. Averill had obtained Judgments
on other occasions without effecting any,
thing.
PRESIDENT GREENE'S CLAIM.
New York, July 21.-Regarding the filing
of a judgment for nearly half a million
dollars in favor OF Gen. W. W. AveriIl,
representing certain profits of the Barber
Asphalt Company on work done in Buffalo,
Golf. V. Greene, president of the company,
said, in signed statement prepared for
the newspapers:
$50 far from Averill having a Judgment
against tue Barber Asphalt Paving Com
pany, this company has Judgment against
him, in this identical case, which Judgment
| is final, and was given with costs, which
were recovered against Avernl after ted-
oussupplemcntalprocee Thelanguage
| of the court in its decision is that the Bar
Der Asphalt Company has not done any
thing in the premises contrary to equity and
| good conscience.
$50 far as this litigation concerns A.
l.. Barber personally, the Judgment against
him rs been appealed. Gen. Averill
sues. not in his own behalf, but as a
minority stakeholder in the American As
phalt Pavement Company, for the benefit
| of himself and the other stockholders. The
ina iority OF this stock has long been owned
| by the Barber Asphalt Paving Company.
! SO that in case the present report against
| Mr.. Barber should be sustained, the greater
| part OF the recovery would belong to the
Barber Asphalt Paving Company. 1t is
significant that none of the stockholders,
| of WHOM there are many, has Joined him
during the fifteen years of this litigation.
1.-The suit was originally brought agains,
both the Barber Asphalt Paving Company
and Mr.. Barber. AS the Barber Company
on appeal had judgment with costs, it WIS
impossible for the referee to find agains,
that company. He therefore selected Ger.
tain contracts in the city OF Buffalo-the
only ones of their kind-which had beer
taken in the name OF A. L. Barber person,
ally. In point of fact, these contracts were
| executed by the Barber Asphalt Paving
Company for its sole account and profit
and every dollar received under them wa:
paid to the Barber Company and not t.
| Mr.. Barber.
LOOKING FOR A REVERSAL.
"When these facts are brought before tn,
appellate court on appeal u reversal o
the referees finding against Mr.. Barbe
must follow inevitably. from the decision
Of the general term rendered since tn,
order of reference was first made
w.. Niles, who has been counsel to tn,
Barber Company since the beginning o
the suit, in 1883, said yesterday that the
suit was brought originally against til,
Barber Company and four others. "A gums
three OF them the plaintiff failed" Mr.
Niles said. He recovered a Judgment n
special term in 1856 against Mr.. Barber
the Barber Company, and two other par
ties, that they seyeraily accounted for a
profits made by them, or either OF them
from or by means OF the De Smedt patent
and nothing else. The Barber Compan
appealed, and the general term not oni
reversed that decree, but gave final judg
ment, with costs against Ayerin. Til
court held that Barber had never madean
agreement with regard to turning over tn
De smedt patentss mover had any instruction
TO turn them over. but because of his beini
Il dircctor in tho Company they ought To- b