Art Metal Works v. Henry Lederer & Bro.

• Decision Date: 17 October 1929
• Citation: 36 F.2d 267
• Parties: ART METAL WORKS, Inc., v. HENRY LEDERER & BRO., Inc., et al.
• Court: U.S. District Court — Southern District of New York

36 F.2d 267 (1929)

ART METAL WORKS, Inc., v. HENRY LEDERER & BRO., Inc., et al.

District Court, S. D. New York.

October 17, 1929.

W. T. Hedlund, of New York City, for defendant Schrager.

Ward, Crosby & Neal, of New York City (Kenneth S. Neal, of New York City, of counsel), for plaintiff.

WOOLSEY, District Judge.

The motion to dismiss the complaint as against Schrager is granted on both grounds, with leave to amend the bill as against him within 20 days if the plaintiff wishes to hold him personally accountable.

This is a bill of complaint in equity based on United States patent No. 1,673,727, for an alleged improvement in cigar lighters, and design patent No. 74,248 covering the design of such lighters, granted to one Louis V. Aronson, the plaintiff's assignor.

This motion, which was argued with the motion to dismiss the bill for want of so-called jurisdiction — really venue — hereinafter referred to, is concerned principally with the eighth paragraph of the bill of complaint.

In that paragraph it is alleged that at the times mentioned in the complaint the defendant Schrager was the managing agent of an alleged place of business of the defendant, Henry Lederer & Bro., Inc., hereinafter called the Lederer Company, at 9-11 Maiden Lane, in this city.

Two motions, made in behalf of the Lederer Company, were decided by me in this case on October 15, 1929.

The first motion decided, although last made in point of time, was referred to me by Judge Goddard on October 15th, and was a motion to set aside a stipulation between counsel extending the time of the defendant to answer, file motions or otherwise plead in this suit. This I denied for want of equity. Cf. Brookings State Bank v. Federal Reserve Bank (D. C.) 291 F. 659, 661.

The second motion which was to dismiss the complaint on the ground that it was not within the jurisdiction of — i. e. was improperly brought in — this district under section 48 of the Judicial Code (28 USCA § 109) was denied solely on the ground that the stipulation to extend the time to answer, which I had refused to set aside in the motion above mentioned, constituted in effect a general appearance and waived the privilege of the defendant to object to the venue. Hupfeld v. Automaton Piano Co. (C. C.) 66 F. 788, 789.

There was not involved in the denial of this last motion any finding whatever as to whether the Lederer Company had or had not a regular established place of business in this city and had or had not been guilty of acts of infringement within this district.

The complaint alleges, in substance, in paragraph eight, that, at all relevant times, the Lederer Company maintained a regular and established place of...