Matthews v. Puffer

• Decision Date: 18 January 1882
• Citation: 10 F. 606
• Parties: MATTHEWS v. PUFFER and others. [1]
• Court: U.S. District Court — Southern District of New York

10 F. 606

MATTHEWS v. PUFFER and others. ^[1]

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

January 18, 1882

A. v Briesen, for plaintiff.

E.C Webb, for defendant.

BLATCHFORD C. J.

The defendant Alvin D. Puffer heretofore made a motion to this court, founded on affidavits, to set aside the service made on him of the subpoena to appear and answer herein. The suit is one for the infringement of letters patent. The motion was opposed and denied by an order made December 30, 1881. The reasons set out in the motion papers, as grounds for the motion, were that the service was made upon the said defendant while he was attending the examination of witnesses in the office of the counsel for the plaintiff herein, in the city of New York, in a cause of interference then pending between him and the plaintiff before the United States patent-office, and when he was lawfully attending at said office 'in his right as a party to said interference cause. ' The moving affidavits did not show where the defendant resided, or where he carried on business; but merely that he 'went to New York' to attend such examination, not stating from what place he went. The motion was made upon the bill as a part of the moving papers. The bill speaks of the defendants as 'doing business' at Boston and New York, and as being citizens of the United States.

In opposition to the motion it was shown by affidavits on the part of the plaintiff that the defendant served had a place of business in the city of New York, and one also in Boston. In regard to him the plaintiff said, in an affidavit 'His place of residence in New York is not known to me, and I have been unable to ascertain it. ' The defendant, after hearing the affidavits in opposition to the motion, chose to submit it for decision, and did not ask leave to withdraw it and renew it on further papers, or to put in further papers. The court, in denying the motion, said: 'It does not anywhere appear that A. D. Puffer is a citizen of Massachusetts, or is not a citizen of New York, or does not reside in New York. The bill alleges that he does business at New York and is a citizen of the United States. It is shown that he has a place of business in New York city. The motion is denied.'

The defendant now, without leave, renews the motion on papers showing that at the time of the service he was a citizen and a resident of the state of Massachusetts. This was a fact which the defendant was called upon to show on the first motion. It is not a newly-discovered fact. It was involved in and pertinent to the first motion....