Dickerson v. Armstrong

94 F. 864, 1899 U.S. App. LEXIS 3107

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: May 24, 1899
• Status: Published

Opinion

LACOMBE, Circuit Judge.

A statement of the facts which are conceded, either by express admission of the individual attached, or by his failure to controvert the moving affidavits, will relieve this case of all difficulty. In the month of March, 1898, and prior thereto, William T. James, the person now under attachment, resided at Ko. 97 Perry street, in this city, and there occasionally sold phenacetine, in infringement of the patent, “as an accommodation,” to one Frank J. Armstrong, who made his headquarters there. On March 8, 1898, one Klappenburg came to 97 Perry street, and there met said James, whom, in the course, of conversation, he referred to as Armstrong. James thereupon informed him that his name was - James, and that he came from Wales, Great Britain. He there and then sold to Klappenburg 10 boxes of infringing phenacetine, showed him about 250 packages of phenacetine, offered to sell him 100 boxes at ?25, and told him that he liad about §500 worth of goods on hand. On April 1, 1808, a deputy marshal called at 97 Perry street, and asked James, who oponed the door, for Mr. Armstrong. Upon being informed that Armstrong was not in, the marshal asked his name, and, upon hi‘< replying “James,” handed Mm an order to show canse, with a restraining order, in this cause. The order is entitled, “Edward N. Dickerson v. Prank Armstrong, alias James;” and the order restrained “the said defendant, Prank Armstrong” (i. e. Prank Armstrong', alias James), from continuing the sale of the infringing article. The order was accompanied with affidavits which showed that the Frank Armstrong named as defendant was the individual who had sold the 10 boxes of phenacetine to Klappenburg, and liad offered to sell (lie latter a much larger quantity, and who on that occasion represented himself to be - James.” Inasmuch as if. was James’ act which was complained of, and the sale of the goods which he exhibited that was sought to be enjoined, and the papers served on him enjoined the individual offender, whether his true name was Armstrong or James, It seems clear that the recent sale by James of a further lot of the infringing article was in disobedience of the order. In punishment of Ms contempt he may stand committed for 15 days (the time of confinement under attachment to be credited), and until he shall pay a fine of §250.