ALLIED METAL STAMPING CO., Inc., v. STANDARD ELECTRIC EQUIPMENT CORPORATION

ALLIED METAL STAMPING CO., Inc., v. STANDARD ELECTRIC EQUIPMENT CORPORATION. Circuit Court of Appeals, Second Circuit. October Term, 1931. Jan. 14, 1932. Walter A. Darby, of New York City, for motion. Albert T: Scharps, of New York City, opposed. Before L. HAND, SWAN, and CHASE, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The plaintiff filed a bill in equity in the Eastern district of New York for the infringement of a patent. The defendant in its answer set up a counterclaim, against the plaintiff for the infringement of another patent. The plaintiff thereupon moved to dismiss the counterclaim for lack of jurisdiction, on the ground that plaintiff was not shown to have been guilty of the infringement in the Eastern district of New York. This motion the judge granted and dismissed the counterclaim, and the defendant appealed. The ease is ruled by our decision in Radio Corporation of America v. J. H. Bunnell & Co., 298 F. 62. Since then the Circuit Court of Appeals for the Sixth Circuit has decided the other way in a substantially similar ease, Naivette, Inc., v. Philad Co. (C. C. A.) 54 F.(2d) 623, May 15, 1931. The question is whether the dismissal for jurisdictional reasons of a counterclaim praying an injunction is a refusal to grant an interlocutory injunction. Jud. Code § 129 (section 227, tit. 28, U. S. Code, 28 USCA § 227). Whatever we might think of this as a new matter, it does not seem to ns that the question is so clear1 as to require us to overrule our former decision. Appeal dismissed.