Plimpton v. Winslow

• Citation: 9 F. 365
• Parties: PLIMPTON v. WINSLOW.
• Decision Date: 12 November 1881
• Court: U.S. District Court — Southern District of New York

9 F. 365

PLIMPTON v. WINSLOW.

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

November 12, 1881

E. N Elliot, for plaintiff.

Wetmore Jenner & Thompson, for defendant.

BLATCHFORD C.J.

A suit in equity brought by the plaintiff in this suit against the defendant in this suit, for the infringement of letters patent, is pending in the circuit court for the district of Massachusetts.

Prior to November 2, 1881, it had been verbally agreed between Mr Roberts, the counsel for the defendant, and Mr. Clark, the counsel for the plaintiff, in the suit in Massachusetts, that the defendant might have testimony on his behalf taken in the city of New York for use in that suit before Mr. Thompson, as a special examiner, and Mr. Clark verbally agreed to attend before Mr. Thompson at any time, on telegraphic notice, for the purpose. Such notice was given that the plaintiff together with the defendant and Mr. Roberts, attended in New York, before Mr. Thompson, on November 2d. Mr. Clark was not present on that day. Witnesses were examined on that day on behalf of the defendant, before Mr. Thompson, by Mr. Roberts as counsel for the defendant, with the acquiescence of the plaintiff, who was present during the examination, and it was agreed between the plaintiff and Mr. Roberts that Mr. Clark should have the right to afterwards cross-examine the said witnesses and enter objections to all questions in the direct testimony, and the examination was adjourned to November 3d. On that day Mr. Clark appeared and cross-examined the said witnesses, and also, in conjunction with Mr. Roberts, signed a stipulation in writing, dated November 2d, and entitled in the Massachusetts suit, stipulating and agreeing that Mr. Thompson might be appointed a special examiner by the court of Massachusetts to take the testimony for the defendant in the suit in New York, under the sixty-seventh rule in equity, as amended. After the adjournment on the second of November, and on that day, the defendant was served personally in the street in New York, after he had left the building where the examiner's office was, and a few steps therefrom, with a subpoena to appear and answer in this suit, and with a copy of the bill and other papers in this suit, and notice of a motion to be made for an injunction herein. The bill in the suit was filed November 2d, and is a bill for the infringement of the same letters patent. The defendant now moves to set aside the service of the subpoena and the other papers on the ground...