Individual Drinking Cup Co. v. Public Service Cup Co.

262 F. 410 | 2d Cir. | 1919

PER CURIAM.

[ 1 ] The proper practice would be for the plaintiff to appeal from an order to be entered by Judge Chatfield in accordance with his opinion dated October 20, 1919, denying its motion to strike out from the decree of June 15, 1918, entered under our mandate of May 27, 1918, the provision as to the defendant’s free dispenser, Plaintiff’s Exhibit Push Button Bracket. As, however, he has held up the matter, suggesting an application to this court, and both parties, in order to avoid the delay and expense of an appeal, prefer this course to be taken, we will state what we meant by our said mandate.

[2] Judge Chatfield by an order dated July 14, 1916, refused to permit testimony to be taken before the master as to this free dispenser without prejudice to an application for relief in a new. suit. The plaintiff appealed, but, not having assigned error as to this order, the subject of the free dispenser was not before us in this suit. We had, therefore, no jurisdiction whatever to pass upon it, did not intend to do so, or to cover it by our mandate, and the clause in question should not have been inserted in the decree of the court below entered thereunder.

[3] If, as the defendant alleges, the parties to the suit of Individual Drinking Cup Company v. Erret, in the Southern district, in which we held the free dispenser not to be an infringement (250 Fed. 620, 162 C. C. A. 636), are, though formally different, really the same as the parties to the suit in the Eastern district, the question is res adjudicata between them in any new suit the plaintiff may bring.