45 F. 243 (S.D.N.Y. 1891), Campbell v. City of New York

Citation:45 F. 243
Party Name:CAMPBELL v. MAYOR, ETC., OF THE CITY OF NEW YORK.
Case Date:February 04, 1891
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 243

45 F. 243 (S.D.N.Y. 1891)

CAMPBELL

v.

MAYOR, ETC., OF THE CITY OF NEW YORK.

United States Circuit Court, S.D. New York.

February 4, 1891

Marcus P. Norton, Harvey D. Hadlock, and Horace G. Wood, for complainant.

Frederic H. Betts, for defendant.

WHEELER, J.

This bill is brought for infringement of a patent to James Knibbs for a relief valve in steam fire-engines, and was sustained

Page 244

notwithstanding the construction and sale of an engine, the Gov. Hill, by the Amoskeag Manufacturing Company, more than two years prior to the application containing the invention, because that use was without the knowledge and consent of the inventor. 9 F. 500, 20 Blatchf. 67. Afterwards it was ordered to be dismissed on account of that sale. 35 F. 504. Then leave was granted to the orator to take further evidence as to surreption in that use, and the exact time of that sale, and to the defendant to take further evidence as to any other use of the invention by that company more than two years prior to the application. 36 F. 260. After that the defendant moved for leave to amend the answer by setting up prior use, and to whom known, on the engines of the steamers Powhatan and Knoxville; and presented certified copies of drawings in black of these parts, with letters, lines, and arrows in red, attached to affidavits in which the affiants stated they had put on the red to show the course of the water in operation. The motion was granted on terms, and an order to that effect was drawn by the defendants, and approved as to form by the orator's counsel, and signed, 'that the original answer filed be, and the same hereby is, considered as amended, and is amended, by inserting' in paragraphs named the proposed amendments in haec verba, and that the replication stand 'as the replication to the answer as thus amended, without further replication thereto,' which was filed. Much evidence has been taken and closed as to the Gov. Hill, other use of the invention by the Amoskeag Manufacturing Company, and the engines of the steam-ships, without further answer or replication. The orator's counsel had entered of record by the examiners many lengthy objections to the taking by the defendant of the evidence of their use of the invention by the Amoskeag Manufacturing Company, on the ground that it was not within the leave granted, and of that as to use in the engines of the steam-ships, because of no...

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