Fll''fH NAT. BANK V. NEW YORK EI,EVATED R. CO.
FIFTH NAT. BANK V. NEW YORK ELEVATED
(Oircuit Oourt, S. D. NIJU) York.
August 10, 1886.)
PLEADING AND EVIDENCE,
DAMAGES-EvIDENCE OF-VARIANCE BETWEEN WHEN ADMISSIBLE-CODE N. Y .544, 539.
Evidence of damage accruing after the commencement of the action, and before the time of trial, is admissible when it has not misled the adverse party.
SAME-INJURY TO PROPERTy-EVIDENCE-QUESTION FOR JURY.
In an action for damages for the erection of a building in front of a banking-house. it may be submitted to the jury to find how much less that part of the building used for banking purposes was worth as a bank on account of said structurc. It is not error to exclude evidence to show that, if the buildings on the op· posite side of the street from plaintiff's building were raised as high as the law and ordinances of tht: city allow/defendant's structure would not intercept any direct raya of the sun towards plaintiff's building.
LIGHT-EASEMENT IN-OnSTRUC1'ION OF LIGHT BY ERECTION OF BUILDING,
Where the question submitted to the jury was as to injury to the use of 8 building during a certain time, caused by the construction of a railroad, evi· dence to show that the general value of the building was increased thereby it not admissible.
At Law. W. F. McRe.e and W. H. A1'noux, for plaintiff. Henry H. Anderson, for defendant.
WHEELER, J. This is an action to recover damages for the erection of the defendant's railroad track and station-house in front of the plaintiff's banking-house at the corner of Twenty-third street and Third avenue, in the city of New York. It has been once before tried, with a verdict for the plaintiff, which was set aside, and a new trial granted. 24 Fed. Rep. 114. It has now been heard on a motion by the defendant for a new trial for alleged errors in law occurring on the second trial. The first ground urged for granting the motion is that it was error to admit evidence of damage to the plaintiff accruing after the com· mencement of the action. This evidence was admitted without objection. The defendant reserved no question about it until the evi· dence was all in, and the charge to the jury was reached. Then the court charged the jury that if the plaintiff was entitled to recover damages for the erection of the tracks and station-house in the street in front of the bank building, it would be entitled to recover the amount shown by the evidence, down to the time of trial. To this part of the charge the defendant excepted, and the correctness of it is a question in the case. The plaintiff's right of recovery was strictly and carefully limited to damages caused by the structure itself, as it was originally constructed, and nothing was allowed in addition fQr the consequences of the use of it for the running of trains, or anything done fmm day to day. It was all directly connected wlth the first wrong. By section 544 of the Code of Procedure of New York,
nnder which this action was brought, it is provided that the court may, and in a proper case must, permit a supplemental complaint, answer, or reply, alleging material facts which have occurred after a former pleading, which, of course, would be after suit brought. In . section 509 it is enacted that a variance between pleadings and proof is not material, unless it has actually misled the adverse party; and. by section 540, that where the variance is not material, as prescribed in section 539, the court may dirt:ct the fact to be found according to the evidence. If the continuance of the structure after the commencement of the action by the summons, or after the filing of the complaint, was material to a recovery for its continuance, it would seem that it could have been brought in by amendment, under section 544. There was no claim that the defendant ;vas misled by this evidence. The evidence on its part, as well as that on the part of the plaintiff, covered the whole time, and there was no ground for such claim. The evidence was in the case, and as there might have been pleadings which would have made it admissible, if not admissible without more, the variance between it and the actual pleadings was immaterial, within the provisions of section 540. The court was therefore permitted by that section to do what was done, and what was excepted to, namely, to direct the fact to be found according to the evidence; and it would appear to be improper not to either do that, or order an immediate amendment. New York Mut. Life Ins. Co. v. Armstrong, 117 U. S. 591; S. C. 6 Sup. Ct. Rep. 877. And this works no wrong to the defendant, if the claim for damages prior to the commencement of the action was propetly tried; for there was no difference between what occurred before and what occurred after, either upon the evidence or the manner of submitting it to the jury. The recovery here will be a bar to any other action for what is embraced within this recovery. Wtndmuller v. Robe'/'tson, 23 Fed. Rep. 652; Fowle v. New Haven cf; Northampton Co., 112 Mass. 338. A new trial for this would not give the defendant the benefit of any different principles as to its liability, but would merely give it another chance before a jury, which, of course, it should have if legally entitled to it, but otherwise not. These considerations make it unnecessary to consider whether, in a case like this, where what was done was done wholly outside the plaintiff's premises, and was completed before the commencement of the snit, the recovery should be to the time of trial, or only to the commencement of the action. There are many cases where the question was whether the damages for the permanent injury to the property-as if the nuisance should always remain -were recoverable or not, but this precise question does not appear to have been often decided, and is not free from difficulty. Everson v. Powers, 89 N. Y. 528; Backhouse v. Bonomi, 9 H. L. Cas. 503; Fowle v. New Haven cf; Northampton Co., 112 Mass. 338; Mayne, Dam. 59-64; Uline v. New York Cent. cf; H. R. R. Co., 4 N. E. Rep. 536, (New York court of appeals, January 19, 1886.)
FIFTH NAT. BANK V. NEW YORK ELEVATED R. CO.
The next question is as to the right of the plaintiff to recover for the injury to that part of the buiiding occupied by itself for banking purposes. It is argued that the inconveniences were to the persons employed, and not to the plaintiff bank, as such. The court, in substance, submitted it to the jury to find how much less the use of this part of the building was worth as a bank on account of this structure. This seems to be covered by Baltill101'e cf: P. B. Co. v. Fifth Bllptist Church, 108 U. S. 317, S. C. 2 Sup. Ct. Rep. 719, where it was held that a religious corporation was entitled to recover damages for interference with its comfortable enjoyment of its house of worship. It is said in argument that no damages were proved except as to additional cost of gas, in this respect. But the situation of the plaintiff was shown, and what was done by the defendant, from which it was competent for the jury to infer the damages.. It is not claimed that they were led by partiality, passion, or prejudice about this. The next question is as to the exclusion of evidence to show that if the buildings on the opposite side of Third avenue were raised as high as the law and ordinances of the city allow, the defendant's structure would be in their shadow during all the time that the plaintiff's building is in its shadow, so that it would not intercept any direct rays of the sun towards that building. The admissibility of tbis evidence rests upon the claim that because others have a right to do what would shade the plaintiff's building the defendant is not liable for shading it to the extent of that right. The defendant, however, does not have, or stand at all upon, the rights of these other persons. The buildings were not raised to that height, and the plaintiff would have enjoyed the light which the defendant's structure did intercept, but for that structure which the defendant, as against the plaintiff, had no right to erect. There is no ownership in light itself, as it is diffused, and the jury has not awarded anything to the plaintiff for what belonged to anyone else. This evidence would not have shown that the injury was to others, and not to the plaintiff. The next question is as to the admissibility of evidence to show that the general value of the plaintiff's building was increased by the building of the defendant's road. The injury to the permanent value of the building was not on trial. The question submitted to the jliry was as to the injury to the use of the building during the time in question. No evidence offered bearing upon that question was excluded. The evidence on both sides was full as to the value of the use without the road there, in comparison with that value with the road there ;as to that value before the road was built, and after the road was built. Finally, the defendant claims that a verdict should have been directed for the defendant. The case has not been allowed to go beyond. if it has not been narrowed within, the principles laid down by the majority of the court in Story v. New York Elevated R. (Jo., 90
FEDERAL REPORTER. N. Y. 122. That case has controlled this as to the extent of tho plaintiff's rights and of the defendant's liabilities. Motion for new trial overruled, stay of proceedings vacated, and judgment to be entered on the verdict.
NORTHWESTERN HORSE-NAIL Co. v. NEW HAVEN HORSE-NAIL Co. and others. 1
(Oircuit Court, D. Oonnecticut. August 4,1886.)
PATENTS FOR INVENTIONS-HoRSE-NAIL MACffiNES.
Letters patent No. 172,660, of January 25, 1876, to Robert Ross, for an improved machine for the manufacture of horse-nails, considered. the seventh and eighth claims thereof construeq, and the former found to be infringed.
In Equity. Ooburn it Thatcher and Benj. F. Thurston, for plaintiff. Edward H. Roger8 and Gharle8 E. Mitchell, for defendants. SHIPMAN, J. This is a bill in equity to restrain the alleged infringement of letters patent No. 172,660, applied for November 16, 1872, and issued January 25, 1876, to Rohert Ross, as inventor, for an improved machine for the manufacture of horse-nails. An automatic horse-nail machine must produce, as nearly as may be, the same nail which was formerly made by the hand of the smith. "The requisites of a finished horse-shoe nail," says the plaintiff's expert, "are, first, it shall be of very tough metal, capable of bending without breaking; that the head and neck shall remain soft, the body of the nail shall be hardened slightly, and to a greater degree on one side than on the other; that it shall have a chisel or bevel point, which shall be the hardest portion of the entire nail." Before the date of the Ross invention there were horse-nail rna· chines having a disk which carried the blanks by a step by step movement, and the subsequent operations of bending, stiffening, and clipping were successively and simultaneously performed. Upon this disk the blanks were generally radially arranged. '}'he machines of the Fowler patent, No. 64,964, dated May 21,1867; of the Sandham patent, No. 109,844, dated December 6, 1870; and of the Wills patent, No. 117,584, dated August 1, 1871,-are examples of this general class. Each machine differs materially from the Ross structure, notably in the fact that the stiffening process is not performed by cold rolling, and that in the Fowler and Wills carrying devices the blanks are arranged radially, and in the Sandham machine they are in pockets, and do not hang vertically by their necks. In the first
by Charles C. Linthicum, Esq., of the Chicago bar.
NORTHWESTERN Hor:m-XAIL CO. V. NEW HAYEN HORSE-NAIL CO.
two machines the stiffening is effected by pressure; in the Wills machine, by hammering. Other machines did a part of the work only. / Of these the machine of the Chase patent, No. 78,644, dated June 9, 1868, which pointed and sheared the nail, and the Globe Nail Company's machine, which also had a feeding disk which carried radially projecting nails, and presented them successively and simultaneously to beveling and trimming devices, are examples. By the machine of the Hall patent, No. 12] ,511, dated December 5, 1871, the blanl,s were fltiffened on each side by cold rolling, the points were beveled between rolls, and were subsequently sheared. This machine had no carrier. The blanks were fed through a vertical tube. The machine of the Wills patent, No. 122,876, of January 16, 1872, had a carrier in the form of a revolving screw, and cold rolled the blanks on one side. A small roller was passed over the nail while resting upon a stationary hed. It was beveled and trimmed on another machine. The machine of Carter's English patent, No. 1,338, dated April 23, 1868,.was for making carpenters' nails, spikes, and holts from rods of hot iron. After a heading die had formed the head of the nail, and while it was held by a gripper, it was tapered and pointed, by means of a roller on one side and a die on the other, and then was released, and discharged. The roller and die are said to be, and I assume that they are, like the roller and die of the Ross machine. It will thus be. seen that before Ross' invention horse-nails were made, by different processes, upon one machine, the various operations being successively and simultaneously performed; and also that the blacksmith's art in stiffening one side of the nail had been imitated by cold rolling one side, but that horse-nails stiffened by cold rolling had not been made upon one machine having an intermittent carrier. It may be added that, by hammering or by cold rolling, the skill of the blacksmith is more nearly attained than by pressing. Ross'invention consisted, in general terms, in a machine in which a new feeding mechanism, wherein the blanks hang vertically by their necks, presented the blanks thus suspended, by It step by step movement, to a roller and die, so that the nail was brought in front of the die, and rolled upon one side, and thereafter, in succession, to pointing and trimming dies, each operation being performed simultaneously. The principal parts of the feeding mechanism are a horizontal ratchet feed-wheel, which is caused to revolve with an intermittent motion, and two stationary concentric guide-rings, 80 as to have a concentric space between the two. The outer ring exactly incloses the feed-wheel. The head of the blank drops through the spaces between the teeth upon the periphery of the wheel, while the annular space between the guide.rings is wide enough to receive the shank of the nail, but not wide enough to permit the head of the nail 1.0 pass. As the feed-wheel rotates, it forces the blank to pass around in the space between the rings that support i.t. The carrying device con-
sists of the intermittent notched feed-wheel and the concentric guidewheels. The first claim, which is for the feeding mechanism, is as follows'
"The improved nail-carrying device, composed of the two concentric gUiderings and the notched feed-wheel, provided with teeth projecting down wards, llnd operating to carry the nails around between the rings."
There was nothing particularly new in the pointing or trimming devices, or in the successive and simbltaneous operation of the different processes by which a nail is made, but the Ross carrying device was new; and neither it, nor any other intermittent carrier, had been united with a roll and die in the manner specified in the patent, and an intermittent carrier had not been united in one machine with rolling, beveling, and trimming devices. The seventh and eighth claims of the patent-the only claims which are said to be infringed -are as follows:
"(7) The combination in a horse-nail machine of a feed-wheel, a roll-die, and a nail-roll, together with their respective connections with the main shaft, substantially as hereinbefore described, so that the nail may be into position in fron t of the die before the die is advanced, and the die be advanced before the roll begins its work. "(8) The arrangement in a nail-machine of the feeding mechanism, the rolling devices. and the pointing and trimming devices, substantially as hereinbefore described, so that, when the nail-carriage is full, a nail shall be brought into position before the trimming die. and another l>efore the beveling die, at the same moment that one is brought into position for the action of the rolling mechanism."
The seventh claim has reference to the combination of a carrier wheel of the Ross type, a roll.die, and nail·roll for rolling the nail on one side only, together with their respective connections with the main shaft, so arranged or connected therewith that the nail is brought in front of the die before the die is advanced; and then, after the die is advanced, the roll begins its work by passing down over the die, wiping or rolling the nail. It is for a carrier wheel in which nails hang vertically by their heads, a roll·die, and nail.roll, substantially as described, and their connections with the main shaft, so that the nail, while suspended, shall be brought to the roll and die, which shall operate upon it in the described order and manner. This claim specifies a feed-wheel of the Ross type, and does not include the entire carrying device of the Ross machine. The eighth claim includes the primary elements of the Ross mao chine, as they are specified in the patent; the feeding mechanism; the rolling, the pointing, and trimming devices, arranged with refer· ence to each other, as specified in the claim. The feeding mechan· ism is that which has been before described, and which is described in the first claim, and embraces more than the feed·wheel of the seventh claim. The carrying device of the defendants is described by their expert as follows:
1\OHTHWFTERX IlOH.'iE-X.UL CO. V. XEW HAVE"'" HORSE-......U L CO.
"It consisls of a ring having upon its inner surface an inwardly projecting' flange, in which are a series of equidistant recesses, to be somewhat narrower than the head of the nail blank to be introduced. The ring is supported from below, and so as to leave the space below the notches or recesses j n the ring clear, and so that a nail introduced into either of the said recesses, point downwards, will fall until the head com"es to a bearing on the ring, and so that. if the ring be rotated, it will carry the blanks so introduced in a circular path. On the periphery of the ring is a series of notches corresponding to the notches all tbe inside of the ring."
In the Ross machine the movements of the carrier, the roll, and the roll-die, are all derived directly from the main shaft. In the defendants' machine the pointing and trimming devices receive their movements directly from the main shaft, but the rolling devices receive their motion from a counter-shaft, at right angles to the former. In the defendants' machine the roll-die, the nail-roll, the pointing and trimming devices, are substantially those of the Ross patent, and the nail, while suspended, is brought by the feed-wheel into position, in front of the die, before the die is advanced, and the die is advanced before the roll, which rolls the nail on one side only, begins its work. A nail is also brought into position before the trimming die, and another before the beveling die, at the same moment that one is brought into position for the action of the rolling mechanism. Upon the question of infringement of the seventh claim the defendants make several points, which involve different constructions of the claim. 1. If the claim is, broadly, for any dial feed-wheel and a stiffening <levice combined, so that the stiffening device would operate upon the blank presented by said wheel, then it was anticipated by the Fowler and Sandham patents and the first of Wills. This construction is so obviously inadmissible that it was not pressed: 2. If the seventh claim is, broadly, for a dial feed-wheel, a roll-die, and a nail-roll, arranged with reference to each other, as recited ill the claim, and irrespective of the peculiar connections between said parts and the main shaft, then the invention was the substitution of the roll-die and nail-roll of the Carter patent in place of the stiffening <l.evices in the pre-existing patents, which have just been mentioned, which substitution involved nothing more than the skill of the trained mechanic, and was unpll,tentable. Assuming that the improvement did substitute the rolling device of the Carter patent for the stiffening device of some other patent, the conclusion that the Carter device could have been put into a borse-nail machine with any dial feed-. wheel, or especially with a new feed-wheel, without that reconstruction whicb would require invention, seems to me to be very untenable. The inventive skill of the patentee does not req uire much discussion, in view of the pre-existing devices an::l his machine. An examination of them all shows that the Ross machine, as well as its prede.cessors, was tbe product of a creative mind. He made a new carry-
ing device, and he made a new combination of a carrier \\ heJl of his: type, and a roller and roll·die. 3. If the seventh claim includes the connections whereby all the movements are derived from the main shaft, then the defendant's machine does not infringe. The feed-wheel, roll-die, and nail-roll of the defendant's machine are moved by one main shaft, as the primary factor of their movements. "There is a short counter-sbaft interposed between tbe main shaft and another shaft that runs lengthwise of the machine, and motion is transmitted from said main shaft to said other sbaft by gear-wheels. Said lengthwise shaft has upon it an eccentric and a cam. The eccentric carries the roll carriage, and causes it to reciprocate at each revolution of said shaft, and the cam actuates the vibrating arm to which the roll-die was attached." It would be an extremely narrow construction of this claim tocompel the connections to be directly with the main shaft, and to say that there was no infringement because a part of the devices got their direct movement from a connter-shaft. Such a construction would also be unjust to other patents for machines wherein motion must necessarily be transmitted,either directly or indirectly, from one sbaft. The means by which motion is transmitted from one sbaft to another are so various, and so well known to machinists, that the limitation which is desired by the defendants might result in an easy spoliation of inventions. The defendants' positions in regard to the claim, which were selected by an experienced and skillful expert, and by able counsel, appear to me to be so untenable that a court is compelled to hold that the claim is being infringed. The plaintiff regards the successive and simultaneous action upon the different nails as the important element of the eighth claim. I think that as much importance should be paid to the primary elements of the different devices as to the manner in which the work is delivered by the carrying deviCle. 'rhe feeding device of the defendants is not claimed to be an infringement of the concentric rings and the notched wheel of the plaintiff's machine, and the eighth claim is not infringed. There was a misunderstanding on the part of the plaintiff as to the effect of the stipUlation which had been entered into, a·nd the existence of the plaintiff corporation was not proved. Unless its corporate capacity is admitted, opportunity will be given to make the requisite proof before an interlocutory decree is signed. Let there be a decree against infringement of the seventh claim,. and for an accounting.
THE CITY OF MEXICO.
(Diabrict Oourt, D. Florida.
April 19, 1886.)
8WPB AND SWPPING-PROVISIONS FURNISHED TO VESSEL HELD FOR PmACY.
Expenses for provisions provided passengers and crew detained on board a vessel under seizure, after arrival in port, and before service of attachment under libel for forfeiture, allowed against the vessel.
Forfeiture. W. O. Maloney, for petitioner. . G. B. Patterson and W. W. McFarland, for claimant. L. W. Bethel, for the United States.
LOCKE, J. When this vessel arrived in port there were on board over· 60 passengers, and crew, but the stores and provisions had been entirely exhausted. The crew were performing their regular duties on board, and the passengers were charged with being engaged in an illegal and criminal voyage, which justified their detention; and there was no one present at that time competent or authorized to order the discharge of either, and, had there been, the vesllel's being placed in quarantine would have prevented them from leaving the ship. Under these circumstances, Lieut. Elliott, United States naval officer in charge, made arrangements with the petitioner for supplying such provisions as were necessary, and this petition has been filed to obtain payment. In defense it is ut'ged that the indebtedness was incurred, not by the authority of the owners of the vessel,but by the officers, after a seizure, and while she was in custody of the government; that no advantage came to the owners, nor was the vessel bound to provide the passengers with provisions after their arrival in port; that they were unreasonably detained on board, and it should not be at the expense of the ship. '1'he8e bills were incurred before there had been an opportnnity for attachment by the marshal under a warrant, and were rendered necessary by the peculiar circumstances. Any other course than that pursued would have been objectionable. The circumstances of her seizure justified the detention of those on board until the law officers of the government could have an opportunity to inquire into the facts of the case. The relations existing between the vessel and those on board were such as should make her responsible for their subsistence as long as they remained on board, regardless of the question as to who had charge of her. The position of the passengers on board was different from that of ordinary passengers who had taken passage from port to port, and whose voyage had terminated. The vessel had been placed at the disposal of Gen. Delgado, in whose employment and pay the rest all seem to have been, and. she,.and the owners through