Gregory v. Royal Typewriter Co.

S.D. New York

Gregory v. Royal Typewriter Co.

27 F. Supp. 160, 41 U.S.P.Q. (BNA) 85, 1939 U.S. Dist. LEXIS 2840

CourtDistrict Court, S.D. New York

DecidedMarch 16, 1939

StatusPublished

Cited by1 cases

This text of 27 F. Supp. 160 (Gregory v. Royal Typewriter Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gregory v. Royal Typewriter Co., 27 F. Supp. 160, 41 U.S.P.Q. (BNA) 85, 1939 U.S. Dist. LEXIS 2840 (S.D.N.Y. 1939).

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Opinion

LEIBELL, District Judge.

Plaintiff E. E. Gregory is a citizen and resident of the State of New Jersey. Plaintiff Gregory Motors is a co-partnership; the individual partners are E. E. Gregory and his wife, Alice C. Gregory, also a citizen and resident of the State of New Jersey. Plaintiff Gregory Motors, the partnership, has been doing business in this district since June, 1933, formerly at 40 East 8th Street, Borough of Manhattan, and at present at 59 East 34th Street, Borough of Manhattan, City of-New York. A certificate of the partnership, naming the partners. and the place of business at 40 East 8th Street, was filed with the Clerk of New York County, pursuant to Section 440 of the New York Penal Law on June 29, 1933.

Defendants in this motion request that plaintiff be required to post a bond for costs in the sum of $500 ($250 for each plaintiff). Defendants argue that it is the law of this state “that a suit by a copartnership must.be brought in the individual names of ' the partners, and not' in some name adopted to denote the partnership relation”. Union Wine Co. v. Green, 62 Misc. 551, 115 N.Y.S. 921.

However, Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides as follows: “(b) Capacity to Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held; except that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States.”

This is a suit for patent infringement under the laws of the United States.

Section 1522, subd. 8, of the New York Civil Practice Act provides: “In a case specified in this section, if there are two or more plaintiffs, the defendant cánnot require security for costs to be given unless he is entitled to require it of all the plaintiffs.” See Salimoff v. Standard Oil Co., 259 N.Y. 219, 221, 181 N.E. 457.

The motion is accordingly denied. Submit order on notice.

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LEIBELL, District Judge.

Plaintiff E. E. Gregory is a citizen and resident of the State of New Jersey. Plaintiff Gregory Motors is a co-partnership; the individual partners are E. E. Gregory and his wife, Alice C. Gregory, also a citizen and resident of the State of New Jersey. Plaintiff Gregory Motors, the partnership, has been doing business in this district since June, 1933, formerly at 40 East 8th Street, Borough of Manhattan, and at present at 59 East 34th Street, Borough of Manhattan, City of-New York. A certificate of the partnership, naming the partners. and the place of business at 40 East 8th Street, was filed with the Clerk of New York County, pursuant to Section 440 of the New York Penal Law on June 29, 1933.

Defendants in this motion request that plaintiff be required to post a bond for costs in the sum of $500 ($250 for each plaintiff). Defendants argue that it is the law of this state “that a suit by a copartnership must.be brought in the individual names of ' the partners, and not' in some name adopted to denote the partnership relation”. Union Wine Co. v. Green, 62 Misc. 551, 115 N.Y.S. 921.

However, Rule 17(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides as follows: “(b) Capacity to Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of his domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held; except that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States.”

This is a suit for patent infringement under the laws of the United States.

Section 1522, subd. 8, of the New York Civil Practice Act provides: “In a case specified in this section, if there are two or more plaintiffs, the defendant cánnot require security for costs to be given unless he is entitled to require it of all the plaintiffs.” See Salimoff v. Standard Oil Co., 259 N.Y. 219, 221, 181 N.E. 457.

The motion is accordingly denied. Submit order on notice.

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Bluebook (online)

27 F. Supp. 160, 41 U.S.P.Q. (BNA) 85, 1939 U.S. Dist. LEXIS 2840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gregory-v-royal-typewriter-co-nysd-1939.

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