Silver & Co. v. Waterman — 122 A.D. 373

Majority

p. 373

Silver & Company, Appellant, v. Henry Waterman and Others, Respondents.

Second Department,

November 22, 1907.

Headnote

Practice —- supplemental answer.

In an action to restrain unfair competition in the manufacture and sale of a night lamp afid to recover damages, the defendant is entitled to plead by supplemental answer that since the joinder of issue letters patent were issued in connection with the lamp manufactured by them.

Leave to file a supplemental answer in no way determines the rights of the parties. '

p. 374

Even though such plea may not be material or a complete defense, it should not be excluded as frivolous where there is a possibility that some of the acts of unfair competition alleged may be justified by the defendant’s invention."

Upon an application to file a supplemental answer the court will not determine' upon the affidavits whether the facts pleaded are a good defepse.

Appeal by the plaintiff, Silver & Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of September, 1907, granting leave to the defendants to serve a supplemental answer herein.

Edward L. Blackman, [Stephen J. Cox with him on the brief], for the appellant. " .

George S. Wheelock [George B. Beattys with him on the brief], for the respondents.

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

p. 375

a: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.