Maitland v. Central Gas & Electric Fixture Co. — 58 N.Y. St. Rep. 35

Majority

p. 35

George Maitland, Resp’t, v. Central Gas and Electric Fixture Company, App’lt.

(New York City Court, General Term,

Filed February 8,1894.)

Headnote

CONSTITUTIONAL LAW—PATENT.

The New York city courts cannot determine the validity or invalidity of a patent.

Appeal from judgment entered on a decision at special term,

p. 36

sustaining the demurrer of plaintiff to the fifth paragraph of defendant’s amended answer.

Birdseye, Lloyd & Bayliss, for app.’lt; A. Walker Oils, for resp’t.

The appeal seems to present the single tion whether the defendant can question in this court the legality of the patent under which the plaintiff claims. The court below, properly held, that this court could not determine the validity or invalidity of the patent, as that question must be determined in the Federal court. The demurrer as to this point was therefore properly sustained. As to the counterclaim, the court overruled the demurrer, because the defendant had set up in its answer, a counterclaim for moneys paid by mistake and without any consideration, and which were, in the nature of things, recoverable back. As the plaintiff does not appeal, this part of the judgment need not be considered. The defendant appeals from that portion of the order, which sustained the demurrer to the fifth paragraph of the amended answer, and as the order in respect thereto, was properly made, it must be affirmed, with costs.

All concur. _