A. Smith & Sons Carpet Co. v. Skinner — 72 N.Y. St. Rep. 102

Majority

p. 102

A. Smith & Sons Carpet Company, Resp’t, v. Skinner, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 27, 1895.)

Headnote

1. Injunction—Pendente lite.

Where, in an action to compel defendant to assign to plaintiffs a certain patent, the moving affidavit shows the patent to belong, in equity, to plaintiffs, while the defendant holds the paper title, and that defendant refuses to assign the patent to plaintiffs, an injunction pendente lile against defendant’s transferring the patent to third persons is prtiper.

2. Evidence—Judicial notice.

.The court will take judicial notice of the course of business that the patent Ho. 543,659 is an issue of later"date than Ho. 186,374.

Appeal from an order enjoining defendant, pendente lite, from transfering ‘the patent to third persons.

R. E. & A. J. Prime, for apy’lt; John F. Braman, for resp’t.

—The special term places this case on the proper ground. The patent, No. 543,659; is shown by moving affidavits to belong, in equity, to plaintiffs, while the paper'title is held by defendant. He refuses to assign, and upon these facts an injunction, pendente lite, against his transferring the patent to strangers is a matter of course. Strict proof that defendant 'threatens to sell is not required. ■ From the fact that defendant unjustly refuses

p. 103

to assign to plaintiffs, the court may well infer an intent to use the patent unlawfully.

It is objected that it is not specifically shown when the discovery covered by patent No. 534,659 was made, and therefore, it may have been made before 1874, when the contract was executed upon which plaintiffs’ rights depend. It is shown to be for an improvement on patent No. 186,374, issued in 1877. The court will take judicial notice of the course of business in the patent office, and that No. 543,659 is an issue of the later date than No. 186,374. We think the appeal without merit.

Order appealed from affirmed, with costs.

All concur.