American Steel & Wire Co. v. Mayer & Englund Co.

121 F. 127, 1902 U.S. App. LEXIS 5325

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: December 29, 1902
• Status: Published

Opinion

WHEEEER District Judge.

This suit is brought for infringement of a patent. Issue was joined February 5, 1901. Proofs were closed in June, 1902, at large expense beyond taxable costs and disbursements to defendant, it was placed on the calendar for hearing at this October term, and stood over for hearing December 9th. The plaintiff’s counsel wrote December 3d to defendant’s counsel:

“Dear Sir: I have yours of the 2nd. We intend discontinuing the case of American Steel & Wire Co. vs. Mayer & Englund Co., when it is reached for argument on the call of the present calendar, and immediately thereafter we shall bring a new suit, as it is our intention to relitigate this question, in view of what has developed subsequent to the closing of the proofs in this case. We do not think the purpose we have in view could be accomplished by the opening up of the present case; therefore, we prefer discontinuing and starting de novo, and that we shall do.”

On the call of the day calendar December 9th, the plaintiff asked leave to discontinue; showing no cause beyond the desire expressed in the letter. Under these circumstances, the defendant appears to have a substantial right to the benefit of its testimony upon the issue joined. A condition saving the right to the testimony as if perpetuated is suggested, but that would be uncertain and of doubtful advantage, and not an adequate substitute for its use now.

Leave denied.