Hanks Dental Ass'n v. International Tooth Crown Co.
| Decision Date | 12 March 1903 |
| Docket Number | 83. |
| Citation | 122 F. 74 |
| Parties | HANDS DENTAL ASS'N v. INTERNATIONAL TOOTH CROWN CO. |
| Court | U.S. Court of Appeals — Second Circuit |
Charles K. Offield and Philip B. Adams, for plaintiff in error.
Walter D. Edmonds and Philip C. Peck, for defendant in error.
Before WALLACE and COXE, Circuit Judges.
This is an action at law by the International Tooth Crown Company the defendant in error and plaintiff below, to recover damages for infringement of letters patent No. 238,940, dated March 15, 1881, to James E. Low for a new and useful improvement in dentistry. The cause was brought to trial in October, 1901, and resulted in a verdict in favor of the plaintiff for $437. From the judgment entered thereon the defendant, the Hanks Dental Association, sued out a writ of error. 111 F. 916.
A former suit in equity had been brought upon the Low patent by the plaintiff against Dr. Allen G. Bennett in the United States Circuit Court for the Eastern District of New York. The patent was there declared invalid. Judgment was entered in the Circuit Court and subsequently affirmed on an appeal to this court. 72 F. 169, affirmed 23 C.C.A. 179, 77 F. 313.
It is alleged that the United States Dental Protective Association which is defending the suit at bar, also conducted the defense in the Bennett Case; that the defendant here and the defendant in the Bennett Case are both members of the said protective association, whose object is to defend all dentists sued for infringement of the Low patent. The defendant pleads the Bennett judgment as a bar to the prosecution of the present suit.
Prior to the trial Edmund F. Hanks, who is president of the defendant, the Hanks Dental Association, was ordered to attend before a master and submit to an examination pursuant to section 870 et seq. of the Code of Civil Procedure of the state of New York. His examination was taken after objection at each stage of the proceedings, and portions of the deposition were read in evidence upon the trial by the plaintiff, after being duly objected to by the defendant. This deposition furnished the only evidence to support the claim of infringement. In view of the diversity of opinion as to whether or not this practice of examining a party prior to trial is permitted by the act of March 9, 1892 (27 Stat. 7 (U.S. Comp St. 1901, p. 664)), we have thought it wise to certify this question to the Supreme Court, in order that...
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