FRYER
v.
MUTUAL LIFE INS. CO.
787
FRYER V. MU['UAI, LIFE
INS.
CO. OF NEW YORK.
(Circuit Court, S. D. NeJIJ) York. 1. PATENTS FOR INVENTIONS FLOORING. NOVELTY -
April 13.1887.) FIRE-PROOF
INVENTIVE GENIUS -
Au improvement in fire-proof flooring, the utility of which is sufficientll proven, though it does not mvolve a high degree of inventive faculty, ConstItutes a patentable novelty.
2.
SAME-ANTICIPATION.
Where llone of the patents or pUblications set up as anticipations of a new improvement in fire-proof flooring points out the simple means suggested by the improvement of protecting the girders by the use of a filling strip or soffit tile, dovetailed mto and supported by the tiles between the girders, which remedies the radical defect in previous methods, by which the bottom flanges of the girders were not properly protected by fire-proof materials, the improvement is not aIlticipated by the previous patents. Whllre a patent consists of a certain combination of several parts, ultimately to be cemented together, the appropriation of the invention is complete before the parts are joined.
8.
SAME.
In Equity. Bill for infringement of letters patent·. Geo. W. Van SWlen, for complainant. James Knox, for defendant. WALLACE, J. The complainant alleges infringement by the defendant of the second claim of letters patent No. 112,926, granted March 21, 1871, to Johnson and Kreischer, for improvement in hollow-tile floors. The invention relates to a fire-proof flooring, which is composed of arched tiles, resting upon flanged iron girders. The tiles are provided with dovetailed grooves near their bottom edges, to catch oV,er the lower flanges of the girders. The dovetailed grooves project somewhat below the girders, so as to receive filling strips made of clay, so formed at the upper part that they can be inserted in the dovetailed grooves. The object of the filling strips is to fill up the spaces between the aeijoining tiles. They protect the lower ends of the iron girders, and with the dovetailed tiles inclose them in a fire-proof material forming a fire-proof ceiling to the room below. Besides protecting. the iron girders, they improve the finish of the ceiling. The claim is: "(2) The removable clay filling strips, D, in combination with the hollow-arched tiles, A, and double-flanged girders, B, as herein set forth, for the purpose specified." The substantial defendant is the Wight Fire-Proofing Company, the owner of letters patent No. 285,452, granted September 25, 1883, to that company as assignor, for substantially the same improvement as that specified in the claim of the complainant's patent. Novelty of the claim in controversy is contested by the defendant in reliance upon vari()us prior patents and publications. The most important of these is the United States patent to Petersen, granted April 3, 1855, and the English patent to Hogg, of October 1, 1861. The patent to Petersen does not show or suggest a removable or any filling strip intended to cover
788
REPqRTER.
the lower flanges of the girder, and fill up the interstices between the adjoining tiles. It shows a fire-proof floor or ceiling, composed of singlearched tiles, resting on the flanges of double-flanged girders, and coming below the girder. But, like the patents to Bonneville, Abord, and Raux Freres, the interstices between the adjoining tiles are to be filled with mortar, to cover the lower ends of the beams, and protect them from fire in the building. The patent to Hogg has D0 reference to fire-proof floorings or ceilings. It points out the objections to the use of unprotected iron girders, columns, doors, etc., in fire proof buildings, "which, in place of being a security, often give wayan becoming hot or cracked from the application of w3lter." His invention, as described, consists in coating the girders, columns, etc., with fire-proof material, or inclosing them in "moulded forms of fire-p:roof material applie4 thereto, suitable appliances being provided for fixing." The novelty of the present invention o()nsists in substituting It filling strip, which ,is practically a 80$t tile, for the mortar used by Petersen, to l;Iogg may have adapted for a fire-proof 1;loor and ,ceiling. The suggested the utility of inclosing the iron girder with fire-proof material, but it did not point out the means adapted to the new occasion. One of the radical defects of the fire-proof flooring which had been previously constructed was that the bottom futnges ofthe girder were not properly,protected by fire-proof materials. When exposed to fire, the mortar gave way, and the filling between the girders gave way, the girders became warped ilild twisted, and the whole flooring or ceiling b!'lcame insecure and danll:erous. Neither of the patents or publications wJ::tich are set up as anticipations pointed out the .simple and practical method of remedying this defect by the use ofa filling strip or soffit tile, dovetailed into and supported by the tiles between the girders. The improvement may not have involved a high c;legree of inventive faculty, but its utility is attested by the fact that the Wight Fire-Proofing Company have adopted. it, and it hardly lies with that company, the' real defendant here, while justi(ying its acts under its own patent for the same thing, to insi,st that there was no patentable novelty in the improvemep.t. In using the inventioll. covered by. the claim in controversy the defendant first placed the filling strips temporarily in position, and then filled the whole it, the girders, and the adjoining tiles with cement. After beingtl1Us cemented, the filling strip is no longer removable. This method of celllenting the filling strip and the adjoining parts in practice is contemplated, by letters patent No. 285,452. It is now insisted for the defendllnt tbat it does not use the "removable" clay filling strip of the claim. Jnone sense this is true. The soffit tile is not removable after it has beel). made immovable. But the appropriation of the invention was complete when the defendant .used the hollowfilling .arched tiles, the double-flanged girders, and the strips, in combination in the ceiling constructed for it by the Wight Fire-Proofing Company. The appropriation of the invention was complete before the parts were cemented together. A decree is ordered for the complainant.
THE YOUNG AMERICA. T:aE YOUNG AMERICA.
789
PUTNAM V. THE YOUNG AMERICA. INSURANCE Co. OF NORTH AMERICA v. SAME. GLADWISH and others v. SAME. HORRE V. SAME. COMMUNIPAW COAL Co. V. SAME. (District Oourt, 8. D. New York. 1. May 6, 1887.)
MARJTIM1Jl LI1JlNS-FORMAL ARREST OF VESSEL-LI1JlNORS WITIIOUT NOTICE.
The rule that liens upon cannot be acquired while they are in cns-· tody of the court is not applicable upon a formal arrest only, when the vessel, by consent of the parties,'i'sallowed to engage in her usilal business, and to incurmaritime third having no notice of her arrest; !leither the J11arshal, nor any deputy, being on board, or having actual possession,
, Liens equalling .orexceeding the whole value of, the :veMel should be enforced' :with diligence; otherwise' such claims, after ,a comparatively short 'period of'inactivity, will be postponed, for laches, in favor of subsequent liens 'of navigation acquired without notice. The rule of The Grapeslwt,22Fed.' l{ep.l23, qualified. . ' . 3. SAME-Ex DELICTO AND Ex COl'lTRACTU-RANK;-MARSUALINQOFSECUlUTY· . By maritime law, liens ex delicto are inferior in the rank of privilege'to liens ex contractu. A prior lien for supplies is entitled to a preference, .considered as a mere, question of legal rank, and independent of the equitable marshaling of securities or remedies, over a. subsequent lien for damage upon the same voyage. Tlw Aline, 1 W. Rob. 111, and other English cases on this subject, and the provisions of various maritime codes, considered. As to the priority of liens by collision, qUlPJI'e. 4. SAME-CASE STATED-SUPPLIES OUTRANK NEGLIGEl'IT TOWAGE. The tug Y. A., on the twenty-ninth of January, 1886, negligently stranded her tow, doing to the latter damage exceeding the tug's value. The libel for damages was filed February 10th, but a formal arrest only was made by the by consent of the libelant's proctor, she was suffered to engage' in'her usual business about the harbor. without any keeper on board, and without pUblication. Upon trial the tug was held liable, Rnd she was arrested· for sale upon execution on the eighth of July. In the mean time several bills for supplies of coal were incurred. upon 'Were claimed under the maritime and state laws. Held. (1) that the liens for supplies furnished without notice of the libelant's suit should be sustained; (2) that the practical release ofthe vessel, after a formal arrest only, for the purpose of permitting her to engage in her usual business. was such laches as should postpone the libelant's liens to those of the subsequent material-men without notice of ,the suit or claim; but not as to supplies furnished after notice of the suit pending; (3) .that the lien for supplies furnished before the stranding was prior in rank to the subsequent lien for damage for negligence in towage, which should rank with negligent damage to cargo; (4) that the damage to cargo, for which a subsequent libel was filed, should share. ratably with the owner of the vessel damaged. after paying for, the supply bills allowed.
2. SAME':':"DAMAGE LIENS-LACIIEs-PRIORITIES.
Distribution of proceeds. . Onthe tenth of February, 1886, the libel wal'filed in the first-named ,cauae to recover $10,000 damages to the barkStrathay, for the alleged negligence of the tug Young America, while towing the bark, in causing her to run upon the rocks at Hell Gate on the twenty-ninth of January, 1886. Under the process issued, the marshal made a formal arrest of thetug the tenthof February. The libelant's proctor,howevElr, look-.
In Admiralty.
on
