201 F. 368 | E.D.N.Y | 1912
The demurrer must be sustained. Burt et al. v. Smith, 71 Fed. 161, 17 C. C. A. 573, Hutchinson, Pierce & Co. v. Loewy, 163 Fed. 42, 90 C. C. A. 1, and National Casket Co. v. New York & Brooklyn Casket Co. (C. C.) 185 Fed. 533, settle the law in this circuit. As well could infringement and an action for specific performance of contract to sell real estate between the parties to the patent suit be united, on the ground that the court had jurisdiction of the parties. See, also, Cushman v. Atlantis Fountain Pen Co. et al. (C. C.) 164 Fed. 94; Keasbey & Mattison Co. v. Philip Carey Mfg. Co. (C. C.) 113 Fed. 432; C. D. King & Co. v. Inlander (C. C.) 133 Fed. 416.
The case of Ball & Socket Fastener Co. v. Cohn et al. (C. C.) 90 Fed. 664, which is cited by complainant, following Adee v. Peck Bros. & Co. (C. C.) 39 Fed. 209, cannot be considered as sufficient to support the contrary view. The Adee Case, supra, as well as Jaros Hygienic Underwear Co. v. Fleece Hygienic Underwear Co. (C. C.) 60 Fed. 622, and Dennison Mfg. Co. v. Thomas Mfg. Co. (C. C.) 94 Fed. 651, seem, in so far as they affect the question, to have had other
Complainant may have 10 days to amend, so as to stand on alleged infringement alone.