106 N.Y.S. 899 | N.Y. App. Div. | 1907
This appeal is from an order of the Special Term that allows a supplemental answer, in an action to restrain unfair competition in the manufacture and sale of a night lamp and to recover profits from the sales thereof. Issue was joined on July 25, 1907, whereupon the plaintiff demurred to the answer. It does not appear that the issue of that demurrer has been tried.
The defendants- would plead by supplemental answer that on August 20, 1907, letters patent were issued “ in connection with the said night lamp manufactured by defendants.” As this fact has come intp existence subsequent to the former pleading, the procedure is correct. The leave granted in no way determines the rights of the parties. (Nichols N. Y. Pr. 1058.) But the learned counsel for the appellant insists that the order is wrong, because the moving papers are insufficient in that the proposed pleading does not show that the allegation is material and also in that the plea is frivolous. It is true the plea if proven cannot constitute a complete defense if all the allegations of the complaint are established ; and it is possible, that the plea may not be at all material. But on the other hand, indefinite as the pleading is, it is possible that some of the acts of unfair competition alleged may be justified by the invention secured by the defendants. We cannot say, therefore, that the pleading is manifestly bad or frivolous. ' Upon such
Woodward, Hooker, Rich and Miller, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.
