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an assessment to the form of proceed

PARTNERSHIP. ure therein disclosed.

N. Y. COURT OF APPEALS. Order affirmed.

Mason, respt. v. Partridge, impleadOpinion by Brady, J.; Davis, P.J.

ed, &c., applt. and Daniels, J. concurring.

Decided June 6, 1876.

Where one party advances money to anCIVIL DAMAGE ACT.

other to be used in business under N. Y. SUPREME COURT. GEN'L TERM, an agreement that they are to share FOURTH DEPARTMENT.

equally in the profits and losses, they

are partners as to third persons. Smith, respt., v. Reynolds, applt. Where there are limitations upon the Decided June, 1876.

authority of the active partner to A wife may maintain an action for bind the other by debts contracted by

loss of support resulting from the him, and the limitations have been death of her husband against a per disregarded with knowledge of such son who sold him liquor &c.

other, they furnish no defense, even Plaintiff's husband became intoxi as to those who knew of them. cated from liquor sold by defendant and

This action was brought against dewas killed by a railroad train.

fendants as partners for goods sold. This action is for damages for loss of It appeared that defendants had ensupport.

tered into an agreement under which On the trial, defendants counsel re- defendant P.advanced to defendant W. quested the judge to charge the jury $2000, to be used in business. Each that if they found from the evidence was to pay one-half the expenses of the that the liquor delivered to plaintiff's business, and they were to share equally husband was delivered by defendant's in the profits and losses. P. claimed bar-keeper without the knowledge of that W. could not, under the agreedefendant, and after defendant had ment, crea*e any debts binding upon directed said bar-keeper not to deliver him, and that he could only be made to the deceased any liquor, the plaintiff liable to the amount of the $2000 he cannot recover. The court refused to put into the business, and that plaintiff 60 charge, and defendant's counsel ex- knew of these limitations. The evicepted.

dence showed, and the referee found, There was a judgment for plaintiff. these limitations had been disregarded Carey & Jewell, for respt.

with the knowledge of P. D. H. Bolles, for applt.

Wheeler H. Peckham, for applt. Held, A wife may maintain an ac

Joseph II. Choate, for respt. tion for loss of support resulting from

Had, That P. and W. were partners the death of her husband against a per- as to third persons ; that even as to son who sold him the liquor, &c., &c.

those dealing with W. who knew the That the refusal of the judge to precise relations between W. and P.,

and the limitations upon W's authority, charge as requested, was correct. Defendant was liable for the act of

these limitations having been disrethe bar-tender even under the facts as garded with the knowledge of P. they

furnished no defense. stated in the exception and request.

Judgment of General Term affirmJudgment affirmed.

ing judgment for plaintiff, affirmed. Opinion by Mullen, P.J.

Per curiam opinion.

VOL. 2.)

MONDAY JULY 31, 1876.

This ques.

NEW YORK WEEKLY DIGEST. Held, That the proposition is un

sound. It is no where declared in the [No. 25.

statute that the decision of the CommisPATENTS.

sioner as to the extent of the utility or U. S. SUFREME COURT.

importance of the improvement shall

be conclusive upon that point, but it Joseph Reckendorfer, applt. v. Eber

is placed in the same category with the hard Faber, reept.

want of novelty and the other requiDecided May 8, 1876.

sites of the statute, and it is expressly The decision of the Commissioner of conceded by the appellant that the judg Patents as to the extent of the utili

ment of the Commissioner on the questy or importance of an improvement tiou of novelty is not conclusive, but

is not conclusive, A combination, to be patentable, must that that point is open to examination.

produce a different force or effect, or On that subject the practice of the result in the combined forces or pro- courts is uniform in holding it to be cesses, from that given by their se pa subject to enquiry. rate parts. There must be a new re

The plaintiff's counsel, in his brief, sult produced by their union.

put his argument in this form : “ The Appeal from the Circuit Court of the commissioner, then, passes on these United States for the Southern District questions. “1. Did the applicant hirnof New York.

self make the invention ? This was a bill filed to restrain the tion is settled by his oath.” This infringement of a patent, and for an is true to the extent and for the accounting and damages.

purpose of issuing a patent, and to this In 1858 one Lipinan obtained a extent only. When the patentee seeks patent for a combined pencil eras- to enforce his patent he is liable to be er, the combination, which he claimed defeated by proof that he did not make as an invention, consisting of the inser- the invention. The judgment of the tion of a piece of india rubber in the commissioner does not protect him body of the pencil for one-fourth of its against the effect of such evidence. length.

“ 2.” (The counsel says), “ Was the This patent was extended for seven invention new? This question is solved years on the 30th day of March, 1872. by the examination required by the

In 1862 plaintiff obtained a patent act.” To the same extent only. The for an improvement upon Lipman's defense of want of novelty is set up invention, which consisted of a ta per- every day in the courts, and is detering pencil with one end enlarged or re mined by the court or jury as a cessed to constitute a receptacle for the question of fact upon the evidence ad

duced, and not upon the certificate of The court below dismissed the bill.

the commissioner. “3." (The comsel The plaintiff contends that the decis- says again) “Is the invention suttiion of the Commissioner is conclusive ciently useful and important? This upon the point of invention, and that the commissioner settles for himthe question, as distinct from that of self by the use of his own judgment. want of novelty, is one not open to the It is a question of official judy. judgment of the court.

ment." These questions are all ques


all the ques

tions of official judgment, and are cases. Rubber Tip P. Co. 1. Howard, all settled by the judgment of the com- and other cases, sup.; Curtis, $ 72, b. missioner. His judgment goes to the The combination to be patentable same extent upon each question. He determines and decides for the purpose or result in the combined forces or pro

must produce a different force or effect, of issuing or refusing a patent. When

cesses, from that given by their separate the patent is sought to be enforced, the

parts. There must be a new result questions, and each of them, are open produced by their union. If not so, it to judicial examination. We see many is only an aggregation of separate elereasons why all the questions of inven

ments. tion, novelty, and prior use should be open to examination in each case, and

In the case we are considering the such we believe to be the course of the parts claimed to make a combination authorities and practice of the courts. are distinct and disconnected. There 11 How. 248; 10 Wall. 117; 20 ju. is no new result not only, but there is 353 ; 20 Id. 498; 21 Id. 115; 18 Id. no joint operation. When the lead is

used it performs the same operation 670; 11 Id. 516. His decision in the allowance and is and in the same manner as it would do

if there were

no rubber at the other suance of a patent creates a prima facie right only, and upon all the

end of the pencil. When the rubber tions involved therein, the validity of is used it is in the same manner and the patent is suloject to an examination performs the same duty as if the lead by the courts.

were not in same pencil. A pencil is Also held, That neither the patent laid down and a rubber is taken up, the of Lipman nor the improvement of one to write, the other to erase; a penReck ndorfer can be sustained.

cil is turned over to erase with, or an The law requires more than a change eraser is turned over to write with. The of form, or juxtaposition of parts, or of principle is the same in both instances. the external arrangement of things, or

It may be more convenient to have the of the order in which they are used, to two instruments on one rod than on give patentability. Curtis on Pat., $ 50;

two. There may be a security against Hailes v. Van Wormer, 20 Wall. 353. the absence of the tools of an artist or A double use is not patentable, nor mechanic from the fact that the greater

the numbe! the greater the danger of does its cheapness make it so. (Curtis,

loss. It may


more convenient to SS 56, 73).

turn over the different ends of the same An instrument or manufacture which is the result of mechanical skill merely,

stick than to lay down one stick

an' take up another. This, however, is not patentable. Mechanical skill is

is not invention within the patent law, one thing. Invention is a different thing. Perfection of workmanship, There is no relation between the instru

as the authorities cited fully show. however much it may increase the

ments in the performance of their sevvenience, extend the use, or diminish

eral functions, and no reciprocal action, expense, is not patentable. The distinction between mechanical skill, with

no parts used in common. its conveniences and advantages and in Judgment of Circuit Court, dismis. ventive genius, is recognized in all the sing bill of complaint, affirmed.



Opinion by Hunt, J.; Strong, J., dis- either party the court, after a jury has sents from so much as holds that the in- retired, gives the many instruction or strument or manufacture described in information in any way affecting the the patents exhibits no invention to merits of the case, the judgment will be warrant the grant of a patent for it. set aside.

That it is not to be tolerated that a PRACTICE. INSTRUCTION BY jury can be allowed to render a verdict COURT. JURY.

in favor of one of the parties, provided N. Y. SUPREME Court. GENERAL TERM the court shall answer a question relat

ing to the action but not affecting the FOURTH DEPARTMENT.

merits in a specified way. That to tolBurke, respt. v. Webb, applt.

erate such practice would tend to base Decided June, 1876.

verdicts of juries more on chance and After a jury has retired, the court, in guess than on deliberate and careful exabsence of the counsel for either par- amination of the facts. ty, cannot instruct the jury on any

The question whether plaintiff could point material to the issue.

in a new action recover for his wages This action was brought to recover

one with which the jury had nowages for a year upon a special contract

thing to do. between the parties, the term to com

"Order granting new trial affirmed. mence April, 1874.

Opinion by Mullin, P.J. The plaintiff worked for defendant for some months when, as he claims,

EXONERATING BAIL. defendant discharged him without


FIRST DEPARTMENT. After the jury had retired they returned and desired to know of the

Robert A. Mills, respt. v. Henry court whether plaintiff could recover

Rodewald, applt. for his services in another action, pro

Same respt. v. David M. Hildreth, vided they found for defendant in this impleaded, &c., applt. action. Neither plaintiff's attorney or

Decided May 1, 1876. plaintiff were present at this time. When bail is indemnified an applica

tion to the favor of the court for The court, in answer to this ques

leave to surrender principal should tion, told the jury, he (plaintiff) could not be granted. recover in another action.

Appeal from order denying defendSoon after plaintiff's counsel returned ant's (who is bail) application to surrenand excepted to this instruction to the der his principal, Henry Rodewald. jury. The jury found for the defend

In 1869 plaintift sued Henry Rodeant.

wald, at the same time arresting him. Subsequently, on motion, such ver- Hildreth and one Stubbens went upon dict and judgment were set aside, and his bail-bond. After obtaining judga new trial ordered.

ment and issuin: executions against From this order this appeal is taken. the property and person of Rodewald, W. E. Hughitt, for applt.

both of which were returned unsatisfied, W. Porter, for respt.

this action was brought against the sureHeld, That when in the absence of ties on the bail.


Hildreth now makes application to This action was brought to recover be allowed to surrender his principal, damages for injuries alleged to have and to be exonerated from further lia- been received by plaintiff by being rebility as bail. It appearing that he had moved from one of defendants' cars. been indemnified by Rodewald's wife, It appeared that plaintiff had paid his his application was denied.

fare, and that it being demanded a Thos. Bracken, for respt.

second time, he refused to pay it, Gco. C. Genet, for applts.

and that defendants' conductor thereOn appeal.

upon violently ejected him from the Hed, That where bail are indemni. car, plaintiff meanwhile resisting. Defied and leave to surrender, if granted fendants' counsel requested the at all, can only be as a favor, the appli- to charge that, even if the conductor cation should be denied.

had no right to remove plaintiff from In this case the rule should be ap- the car, if he resisted to such an extent plied, because the wife of the principal that extraordinary force became neceshas indemnified the bail, and the plain-sary to remove, and he was injured tiff therefore has the superior equities. thereby, he could not recover for such

It is true that it does not appear af- injury. The court charged in response firmatively that the wite is responsible, to this, that if plaintiff was lawfully but it was the duty of the bail to have there he had a right to resist the con. shown, with reasonable certainty, her ductor in removing him, and his resistinability to meet the indemnity assum-ance could not be urged against his ed when the obligation was given. right to recover dainages. Order affirmed.

J. G. Runkle, for applts. Opinion by Brady, J.; Davis, P. J.,

0. W. Chapman, for respt. and Daniels, J., concurring.

Held, No error; that when a conRAILROAD COMPANIES. DAM- ductor is in the wrong, the passenger AGES. RESISTANCE,

has a right to protect himself against N. Y. COURT OF APPEALS.

any attempt to remove him, and resistEnglish, respt., v. The President, ance can lawfully be made to such an &c., of the D. & H. C. Co., applts.

extent as may be essential to maintain

such a right. Decided June 20, 1876. Where a conductor attempts to cject a

Defendants' counsel also requested passenger from the train for re- the court to charge the jury, that if fusing to pay his fare a second time, they found that plaintiff resisted when the passenger has a right to protect being put off the train more than was himself against any such attempt, and may resist to such extent as may

necessary to protect his legal rights, be necessary to maintain such right. and to avail himself of his legal remThe train being in motion, the passen - edy for a breach of the contract on the

ger is justified in repelling any part of the defendants, and was thereattempt to eject him which would by injured, he could not recover. This endanger his life or subject him to great hazard and peril, and his re request was refused. The evidence sistance cannot be urged against his showed that he did not resist enough to right to recover damages for injuries retain his position on the cars, and it sustained through such ejectment. did not distinctly appear that he resist.

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