Page:Federal Reporter, 1st Series, Volume 2.djvu/551

 541 FEDERAL BBFOBTEB. �Dat V. Schwab and another. �{fjirouit Court, 8. D. New York. May 8, 1880.) �Patent — Imphovbment m Skibt Photectoes — Motioh to Opbn Oasb TO Admit othbk Dbfencks — Insufficient Afpidavit. �In Equity. �Miles B. Andrus and Edward N. Dickerson, for complain- ant. �M. P. Stafford, for defendant. �Wheelee, D. J. This cause ia substantially like that of Day V. Combination Rubber Co., heard at the same term, except that it is founded upon letters patent No. 161,012, dated March 23, 1875, and issued to the plaintiff, assignee of Theodore D. Day, for an improvement in skirt protectors by placing a moulding of India rubber, having two ribs, upon the lower edge of skirt protectors, made of plain material, and stitching it there through the web between the ribs, in addi- tion to the De Porest patent, and the defendants have moved to have the case opened to admit other defences. �The affidavit in support of the motion sets forth no par- ticular facts coristituting defences desired to be brought for- ward, and no reason why they have not been brought forward in the usual manner, if they exist, except that the case was not attended to either by the defendants or their solicitor. Such an affidavit is wholly insufficient for the purpose. There is nothing in the case to show that the patent is not valid for that addition to skirt protectors. The evidence shows that the defendants have sold, for use, skirt protectors of that particulaV form, as well as those having the band of the De Forest patent. Therefore, upon the case as made up and presented, there must be a decree that both patents are valid, that the defendants have infringed them, and for an injunc- tion and an account accordingly. �Let a decree be entered for the plaintiff accordingly, with costs. ����