Planetlite Co. v. Gleason-Tiebout Glass Co. — 234 A.D. 304

Majority

p. 304

Planetlite Co., Inc., Appellant, v. Gleason-Tiebout Glass Company, Respondent.

First Department,

January 29, 1932.

p. 305

i Harold M. Goldblatt of counsel [Leonard B. Hanower, attorney], for the appellant.

Charles F. Hulseman of counsel [William Stanley Miller, attorney], for the respondent.

The action is for damages in failing to deliver a mold and certain glass globes to be manufactured by defendant upon plaintiff’s order. The separate defense, assailed as insufficient, pleads that the merchandise mentioned in the complaint, if manufactured by defendant, would have infringed design patents held by defendant’s customers, to plaintiff’s knowledge.

That averment constitutes no defense here. Defendant, having undertaken to manufacture and deliver the product to plaintiff, was impliedly required to obtain a license from the patentee. The circumstances pleaded in the affirmative defense did not render the contract either unlawful or impossible of performance.

The order appealed from should be reversed, with ten dollars costs and disbursements to appellant, and the motion to strike out the first separate and distinct defense granted, with ten dollars costs.

Present — Finch, P. J., Merrell, O’Malley, Sherman and Townley, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.