Silver & Co. v. Waterman

Appellate Division of the Supreme Court of New York

Silver & Co. v. Waterman

122 A.D. 373, 106 N.Y.S. 899, 1907 N.Y. App. Div. LEXIS 2442

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 22, 1907

StatusPublished

Cited by1 cases

This text of 122 A.D. 373 (Silver & Co. v. Waterman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Silver & Co. v. Waterman, 122 A.D. 373, 106 N.Y.S. 899, 1907 N.Y. App. Div. LEXIS 2442 (N.Y. Ct. App. 1907).

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Opinion

Jenks, J.:

This appeal is from an order of the Special Term that allows a supplemental answer, in an action to restrain unfair competition in the manufacture and sale of a night lamp and to recover profits from the sales thereof. Issue was joined on July 25, 1907, whereupon the plaintiff demurred to the answer. It does not appear that the issue of that demurrer has been tried.

The defendants- would plead by supplemental answer that on August 20, 1907, letters patent were issued “ in connection with the said night lamp manufactured by defendants.” As this fact has come intp existence subsequent to the former pleading, the procedure is correct. The leave granted in no way determines the rights of the parties. (Nichols N. Y. Pr. 1058.) But the learned counsel for the appellant insists that the order is wrong, because the moving papers are insufficient in that the proposed pleading does not show that the allegation is material and also in that the plea is frivolous. It is true the plea if proven cannot constitute a complete defense if all the allegations of the complaint are established ; and it is possible, that the plea may not be at all material. But on the other hand, indefinite as the pleading is, it is possible that some of the acts of unfair competition alleged may be justified by the invention secured by the defendants. We cannot say, therefore, that the pleading is manifestly bad or frivolous. ' Upon such [375]*375a:n application the court does not determine whether the fact pleaded is available upon a reading of the opposing affidavits. (Reynolds v. Ætna, Life Ins. Co., 16 App. Div. 74.) The order of the Special Term was properly made and it should be affirmed, with $10 costs and disbursements. ( Williams v. Hays, 23 N. Y. St. Repr. 489 ; Mitchell v. Allen, 25 Hun, 543.)

Woodward, Hooker, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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Jenks, J.:

This appeal is from an order of the Special Term that allows a supplemental answer, in an action to restrain unfair competition in the manufacture and sale of a night lamp and to recover profits from the sales thereof. Issue was joined on July 25, 1907, whereupon the plaintiff demurred to the answer. It does not appear that the issue of that demurrer has been tried.

The defendants- would plead by supplemental answer that on August 20, 1907, letters patent were issued “ in connection with the said night lamp manufactured by defendants.” As this fact has come intp existence subsequent to the former pleading, the procedure is correct. The leave granted in no way determines the rights of the parties. (Nichols N. Y. Pr. 1058.) But the learned counsel for the appellant insists that the order is wrong, because the moving papers are insufficient in that the proposed pleading does not show that the allegation is material and also in that the plea is frivolous. It is true the plea if proven cannot constitute a complete defense if all the allegations of the complaint are established ; and it is possible, that the plea may not be at all material. But on the other hand, indefinite as the pleading is, it is possible that some of the acts of unfair competition alleged may be justified by the invention secured by the defendants. We cannot say, therefore, that the pleading is manifestly bad or frivolous. ' Upon such [375]*375a:n application the court does not determine whether the fact pleaded is available upon a reading of the opposing affidavits. (Reynolds v. Ætna, Life Ins. Co., 16 App. Div. 74.) The order of the Special Term was properly made and it should be affirmed, with $10 costs and disbursements. ( Williams v. Hays, 23 N. Y. St. Repr. 489 ; Mitchell v. Allen, 25 Hun, 543.)

Woodward, Hooker, Rich and Miller, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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Bluebook (online)

122 A.D. 373, 106 N.Y.S. 899, 1907 N.Y. App. Div. LEXIS 2442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/silver-co-v-waterman-nyappdiv-1907.

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