28 N.Y.S. 74 | The Superior Court of the City of New York and Buffalo | 1894
The learned trial judge was right in holding that the plaintiffs were not concluded by the result in the Pennsylvania ■suit. They were not parties, and do not appear to have had notice ■of it. The complaint states a cause of action for royalties due upon a contract of sale. The answer sets forth, among other defenses, that of the invalidity of the patent sold, and a consequent failure of consideration. In such a case, an inquiry as to the validity of the patent can be made in a state court, as it is merely incidental to the main question, which is, valid contract or void contract? It seems to be the settled law of this state that the invalidity of a patent is available as a defense in an action for the purchase price on the ground of a failure of consideration, but not in an action by a licensee to recover royalties. See Marston v. Swett, 66 N. Y. 212; Rob. Pat §§ 1230, 1239. This action is brought by a purchaser for the purchase price. The agreement to pay royalties did not make the assignee a licensee, as the royalties to be paid were part of the purchase price. Littlefield v. Perry, 21 Wall. 205. The validity of the contract could there
