Record and brief — Michael Magin, Appellant, vs. John J. Karle., Michael Magin, Appellant, vs. John H. Lehman
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PRA ECs EE EI RE | PERE
WELT en
es PIES,
et
3
RECORD, CASE Nos. 13,994 & 13,995.
SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 18902.
TERM No., 323.
MICHAEL MAGIN, APPELLANT,
US.
JOHN J. KARLE.
fore eam. © ‘
|
oe fie * ~
TERM No., 324.
MICHAEL MAGIN, APPELLANT,
Us.
JOHN H. LEHMAN.
APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR
THE NORTHERN DISTRICT OF NEW YORK.
INDEX.
: Original. Print.
Enrolled decree (Karle suit). ----.------------ --------- ---------- l l
Statement ~~~. -..----------- ------ a (20s Cwmees commen 1 1
Bill of complaint ---~-. ------ ------ ------ nich Sai stems mma ao 3 1
Order for subpoena .__--.- ------ ---- ---------- .--------- ------ 9 4
Writ of subpeena -__.------ ------ -----+. ---- ------ o 10 4
Marshal’s return ...... ...-<- ---<- -<..- -ennce -o0e +220 <2 00 soe 11 5
Priecipe and order for appearance .-.-.. . ---------- ------------- 12 5
Jupp & DerwkILer, Printers, WasHiInaton, D. C., NovEMBER 28, 1892.
INDEX.
RENEE ee OL LR OTN EE Pe FEIN ee Be a IH
PTOOR oc ce ee tence cocwes +o ne ois = 30m ines eee
> Pied Bemr0O. on nk nian oe ccecinc eccns: coccce obant uenesnemes
Enrolled decree (Lehman suit) ..-.-. ---.-.---- -----.---- .--- ------
ING ois acces cepa Sb oes semen 4 eens cone. ink oem
Bill of complaint .._. -..... .- -. -222 22. woe ene sn sowoee one
Order for subpoena..-. --- --- +e: wictititinds Taiab tain Pcl Aan the ai
Writ of eubpone ...... ~~. nee 2 on se sone cr ewee cnn wee
ELLE EES LC LE LNT AEA RIR ME ORE ge RRO EE UM AE
IGE oes bivcn bettie mbna ne eit wens cdcuis mai vend
Replication .........c0s 66 coe one se weee snes cece sone pamane + sees
CID cain: <icith d vu ein ernie ah edie dats wana eet
Cumpininant’s direct testimony . 2. 00. cncwwe soos sone ees cose cowens
Ne OE WORRIED ose bd heen a his eid tine ne nk eae
Denbioneny OF TGs Fs OE ow iin cn cete ceca nana nnd wen ee
Complainant’s testimony in rebuttal ..--.2---. 22-222 +--+. ---- --
ID ois ncecees eocieiglea cornice no tiig aie wdelat as eels aaa
aeebaeey OE TI IIE 6a ities Scitenins son tne stra ccmenminan
es ND wo ditin Sa iitees Kiger na wee
SE I sii ic scsi sieinitients Scien tk aaa
eS NE ica nice bcos aac, See ee Be
I Niaaidiinceen Sins Winn kann evga ee ean acti
I OO cisco sick ininiieet Wiiigrciniins- wrestles ws soshccinghi
I NI cn sick estes ee eens 6s te pica snieminccealiiaeh sean
I INE ok ac isi didi eee eal heat
iinet: sek scien dis Se weenie ete ed
IE IID: cicitaicie tk: Gia eens i ee sci” ting wee
INE The ee SI a. its: 5 ew nine owns: elas: xebnies cetien
FF ERS TE Le RE PONT eB eR RF
OS OG vines os stron: +cinncmaniain cma aii
I x cicceies setssiiininitin +=: dnitniatesinianiipiala Sinai
Srprtcete OF CR asiscsicntts ok cs inant a haistiatnis: weedliinin aiainiiaus ‘siiliiaiiaiaialidias
eeninas's CRRIO ..0 6 tien: cake souk se nenin sien muieninebaninam
Gordon patent, No. 248,646, October 25, 1881 -- 2. 22 lk
BERGA CUCOWIRT oe crcnen co metd cone ernie <acie ceils ainite aatésss arplianiitis
Sketch of defendants’ beer cooler (Karle suit) -..------.---.-2
(SeeONOR CRUE) nn, oe kc cccee
nts” SOURIS o.0.cd once ince aguas abeen tleehion
Stipulation as to testimony ----. ~~. snncions ioniainaiiaah ili “i
eee OE ID ioisits: sche orcs Adc wl’ ce ni ee eas
emanate OE TATOOS TIE ow ica scat einai nisdins naeta nga wii
I ND sci ins ct Sciacca i aad ea
ee I aidtsinsit apie nhc siimanee
I I sea esis seitbiniiains ic saints anti ai ed at
NE I nin air iss reeset acdsee emai ee
Cae BE IG oe iiek ends coke se aes he eee
I OND Saiiisictites sisi 6 teint Siew cca Sale Latah went buna
“A "Bimal decree ( Ww elber emit) .... on. 5.6 ceecccs ck ccs
“ B’’—Final decree (McKay suit) .... -.--2. .. 2. te
“C'—Decision (McKay and Welker suits)... .2-0-.-----2 eo
“p”—Decision denying motion for rehearing (McKay and
IID «ices: stein insisinn siibias ipeae Aa ee
Original.
55
57
146
151
153
169
214
295
411
421
438
463
474
478
518
636
537
538
540
544
045
546
047
050
551
081
696
743
822
&69
870
870
871
872
875
Print.
6
8
19
76
85
108
150
208
213
222
235
241
243
263
272
273
273
277
277
277
278
278
280
280
302
386
421
480
516
517
517
518
518
520
eM RG Seeger een Que
: i .
III
; Original. Print.
Defendants’ Exhibit Meinhard testimony ._--_. ana sales oe ace 521
Defendants’ affidavits (complainant’s exhibits) ----..-.----..--. .-. 890 529
BERGOR OC A iDOrE BARE ics chica Sens Sewn denna ee 529
Rel COMOROS ined scntnie weeks bias 531
Ses &.. COND nek Nivea Acker gti a ae 532
BO TE a viiscttictn nite nated atirlntinan wit < ie aaa ee 53 t
Wy erin Dats BO. 5 inet caw sted tke cnn cee 537
Testimony as stipulated from Welker suit..---. -.---. .--.--------- 904 538
Complainant's testimony «cc. 2 ose cee see sees sade sins «ere 904 538
sestimony of Charlies Gordon... 22.006 1666 eces sccescnnn 904 538
Dnsbaiielt Si... iss de: cain sa ie beeline ee 554
Samuel Benewaeger ....~ 2.0 -.cess nse ace TE 560
Char itin Bt R < since dntias swan nonedsniedbeseed ae 561
‘ Bichnel. TO oc ck acucansnen sont icswi ae 568
3 Defondante’ testimony .... 0s. 000 swans cond saw vine none samen) ae 580
i Testimony of Ernest J. Schawh.......ncccc< .~sesenu--cve-ne. OB 580
' Anthony Kleinhanz...--......---..--..---. 998 604
Demme: Tike is nic ernetins ene ott nella eeegen 622
: Diente NN ia cick ccmenin bn onind oie cman ae 632
Solem BOW <n ccente comets sunmes dew ince a
Ernest J. Schaub (recalled).......----. .---.. 1080 655
Anthony Kleinhanz (recalled) .---....--..... 1084 658
Martin Selbig (recalled) .....-.-... .------ --- 1088 660
Decision, Tae, Boscia: cen cccscnitats nites cadiinliis wets Hae eee 662
Putitions OF QO oun: 0 snk sees sone sccndcuwie meek sncnsweee” Se 663
Bond on appeal... ------ san ie ctaik- antec deliaeniin scares viable ellabih oAeehd eateaelliednalat a 665
Stipulation as to record on appeal_._--------.---- -.---- .---------- 1101 667
INDEX.
Diention ered) ook nec nae ce ins coco mene coos aes acu ewee: | Se 668
re We On ook. oo ne nets c cis ccee cba dee eee 669
> + SL ad ST ara es eee
- sie Pn rae ete | eee ee ‘Ses sald
CR i Bee MFRS, RITA ERROR Bie Gol eee eI EEN S$
isin
ii ea
SNL RIT pA ALES OSI IT EI PAT PAL te Oh Mee it Sh ine) oie 2 sacar -
ean prn aioe
M. MAGIN VS. J. J. KARLE & M. MAGIN VS. J. H. LEHMAN. 1
1 Statement.
United States Circuit Court, Northern District of New York.
MICHAEL MAGIN
versus In Equity. Docket No. 5617.
JOHN J. KARLE.
The complainant in the above-entitled cause filed his bill of com-
plaint against the defendant herein on the 26 day of March, 1887,
which bill is hereto annexed.
A subpcena to appear and answer in said cause was thereupon
issued and served personally upon the defendant previous to the
return day thereof; which subpcena and proof of service thereto are
hereto annexed.
On the 27 day of April, 1887, the defendant duly appeared in
said cause, by Josiah Sullivan, as his solicitor, and on the 6th day
of June, 1887, filed his answer to the bill of complaint herein ; which
answer is hereto annexed.
On the 29 day of June, 1887, the complainant filed his replication
to the said answer; which replication is hereto annexed.
Testimony was thereafter taken by and on behalf of the respective
parties, and the said cause was brought to a hearing and argued by
counsel upon pleadings and proofs before the Honorable Samuel
Blatchford at a term of this court.
A decision was duly made by said court in favor of the defendant
and filed herein the 28 day of October, 1889.
That thereafter and on the 2 day of January, 1890, the defend-
ant’s costs and disbursements were duly taxed and adjusted by the
clerk of this court at $466.60.
2 On the 5 day of December, 1889, at a term of this court
held at , present, the Honorable Samuel Blatchford,
judge, a final decree was made and entered in the said cause; which
final decree is hereto annexed.
3 Bill of Complaint.
Circuit Court of the United States in and for the Northern District
of New York.
MICHAEL MAGIN
v8. bin Equity.
Joun J. KARE.
To the honorable the judges of the circuit court of the United States
in and for the northern district of New York:
Michael Magin, of tlie city of Rochester, county of Monroe, in the
State of New York, and a citizen of said State, brings this bill
against John J. Karle, of the city of Rochester aforesaid and a citi-
zeu of said State of New York.
1—323
: , con
EN Sc dh Cease ag aod ae ee
est
RA.
rege or ncaa IDA
MICHAEL MAGIN VS. JOHN J. KARLE AND
And thereupon your orator complains and gays that heretofore
and before the twenty-fifth day of October, A. D. 1881, one Charles
Gordon, of said city of Rochester, was the true, original, and first
inventor of an improved apparatus for drawing and cooling beer,
ale, &c., not known or used before and not in public use or on sale
for more than two years prior to his application for a patent there-
for.
And your orator further shows unto your honors that the said
Charles Gordon, so being the inventor of said improvement
4 and a citizen of the United States, made application to the
proper department of the Government of the United States
for letters patent, in accordance with the then existing acts of Con-
gress, and duly complied in all respects with the conditions and
requirements of said acts of Congress, and that on October 25th, A.
D. 1881, letters patent of the United States, numbered 248,646,
signed, sealed, and executed in due form of law, for the said inven-
tion or discovery were Issued to the said Charles Gordon, whereby
there was secured to him, his heirs, executors, administrators, or as-
signs, for the term of seventeen years from the twenty-fifth day of
October, 1851, the full and exclusive right of making, using, and
vending the said invention or discovery throughout the United
States and the territories thereof.
And your orator further shows unto your honors that on or about
the ninth day of March, eighteen hundred and eighty-two, the said
Charles Gordon, by an assignment in writing of that date, sold, as-
signed, and transferred unto vour orator, the said Michael Magin,
all his right, title, and interest in and to said letters patent and in-
vention, Which assignment was duly recorded in the Patent Office
of the United States, as by said assignment ora duly authenticated
copy thereof and the certificate of such reeording thereto aflixed,
ready in court to be produced, will fully and at large appear.
And your orator further siiows that vour orator has extensively
applied the said improvement to practical use, and has been,
o and but for the infringement hereinafter complained. of
would still be, in the undisturbed possession, use, and enjoy-
ment of the exclusive privileges secured by the said letters patent
and in receipt of the profits of the same.
And your orator further shows unto your honors, as he is in-
formed and believes, that the said defendant hereinafter named,
well knowing all the facts hereinbefore sct forth, is now using an
apparatus for drawing and cooling beer, ale, &e., substantially the
same in construction and operation as in the said letters patent
mentioned, the exelusive right and privilege to make, to use, and
vend which throughout the United States and the territories thereof
is thus by law vested In your orator,
And so it Is, may it please vour honors, that the said defendant,
as your orator is Informed and believes, without the license of your
orator, against his will, and in violation of his rights, has used, and
intends to continue still to use, within the northern distriet of New
York, the said invention, all of which is in violation of the said
letters. patent.
PE, Geta
Qype nieces rts seignns dere
%
3
*
MICHAEL MAGIN VS. JOHN H. LEHMAN.
To the end, therefore, that the defendant may, if he can, show
reason why your orator should not have the relief hereby prayed,
and that he may make a full disclosure and discovery of all the
matters aforesaid, and, upon his oath and according to the best and
utmost of his knowledge, remembrance, information, and_ belief,
full, true, direct, and perfect answer make to the several allegations
of this bill as though specially interrogated relative thereto;
6 And now, to the end that the defendant may be compelled
to account for and pay over the income thus unlawfully de-
rived from the violation of the rights of your orator as above and
be restrained from any further violation of said rights, you? orator
prays that your honors may grant a writ of injunction restraining
the defendant from any further construction or sale or use, In any
manner, of said patented improved apparatus or any part thereof,
in violation of the rights of your orator as aforesaid, and that the
infringing apparatus now in possession or use of the said-defendant
may be destroyed or delivered up to your orator for that purpose ;
and also that your honors, upon the rendering of the decree for an
infringement as above prayed for, may proceed to assess or cause to
be assessed, under your direction, in addition to the profits to be ac-
counted for by the defendant as aforesaid, the damages your orator
has sustained by reason of such infringement, and that your honors
may increase the actual damages so assessed toa sum equal to three
times the amount of such assessminent, under the circumstances of
the willftl and unjust infringement by said defendant, as herein set
forth ; and your orator prays also for a provisional or preliminary
injunction and for such other relief as the equity of the case may
require and to your honors may seem meet.
May it please your honors to grant unto your orator not only a
writ of injunction conformable to the prayer of this bill, but also a
writ of subpcena of the United States of America directed to
7 the said John J. Karle and commanding him to appear and
answer unto this bill of complaint and to abide and perform
such order and decree in the premises as to the court shall seem
meet and be required by the principles of equity and good con-
science.
MICHAEL MAGIN.
GEO. B. SELDEN,
JOHN R. BENNETT,
Solicitors and Counsel for Complainant.
UnITED STATES OF AMERICA, ees
, . ‘ r e Py) °
County of Monroe, State of N. Y,,
Michael Magin, the complainant in the foregoing bill named,
being duly sworn, deposes and says that so far as the statements
therein contained are within his own knowledge they are true, and
so far as they are derived from the information of others he verily
believes them to be true, and he further says that he verily be-
_ieves.the said Charles Gordon in said bill named to be the original,
true, and fsljiventor of the said improved apparatus for drawing
rel
%
4 MICHAEL MAGIN VS. JOHN J. KARLE AND
and cooling beer, ale, &c., which is described in the said letters patent
granted to the said Charles Gordon, No, 248,646, dated Oct. 25, 1881,
and mentioned in the foregoing bill, and your deponent verily be-
lieves that his title, as set furth in said bill, is true.
MICHAEL MAGIN.
Sworn to and subscribed this 21st day of March, A. D. 1887,
before me—
Z. L. DAVIS,
[L. s.] Notary Public.
§ (Indorsed :) Bill in equity. Filed Mar. 26, 1887. W. S.
Doolittle, clerk.
9 Order.
In the Ciréuit Court of the United States for the Northern District
of New York.
Marcu 26, 1887.
Present: The Honorable William J. Wallace, judge.
US.
MiIcHAEL MAGIN
5617.
JoHn J. KARLE.
On filing bill of complaint in this cause and on motion of George
B. Selden and John R. Bennett, complainant’s solicitors—
Ordered that a writ of subpoena do issue out of and under the
seal of this court pursuant to the prayer of said bill, and that this
cause be docketed for said complainant.
10 Writ of Subpena.
The President of the United States of America to John J. Karle,
Greeting :
You are hereby commanded that you personally appear before
the judges of the cireuit court of the United States for the
[u.s.] northern district of New York, in the second cireuit, on the
first Monday in May, 1887, to answer to a bill of complaint
exhibited against you in said court by Michael Magin, and to do
further and receive whatever said court shall have considered in that
behalf; and this you are not to omit under the penalty of two hun-
dred and fifty dollars.
Witness the Honorable Morrison R. Waite, Chief Justice of the
Supreme Court of the United States, at the city of Utica, in said
northern district, the 26th day of March, eighteen hundred and
eighty-seven.
W. S. DOOLITTLE, Clerk.
GEORGE B. SELDEN anpb
JOHN R. BENNETT,
Solicitors for Complainant.
- ie we peti a saptiie
BO es PRAY
MICHAEL MAGIN VS. JOHN. H. LEHMAN. 5
MEMORANDUM.—The defendant is to enter his appearance in the
suit above mentioned in the clerk’s office, at Utica, on or before the
day at which the above subpoena is returnable; otherwise the bill
may be taken pro confesso.
W. S. DOOLITTLE, Clerk.
11 Unirep States OF AMERICA,
Northern District of New York, ; ona
I hereby certify that on the 28th day of March, 1887, at Roches-
ter, in my district, I personally served the within writ of subpoena
on the within-named defendant by showing the same to him, with
the seal of the court thereon, and at the same time delivering to
and leaving with him a true copy thereof.
WALTER H. BUNN,
U. S. Marshal.
J. M. BARDWELL, Deputy.
~ (Indorsed :) Equity subpeena. Filed Apr. 1, 1887. W.S. Doo-
little, clerk.
12 Appearance.
United States Circuit Court, Northern District of New York.
MICHAEL MAGIN
against No. 5617.
JOHN J. KARLE.
Notice of Retainer.
To W.S. Doolittle, Esq. :
Please take notize that I, having been retained by and appear
herein for the defendant, John J. Karle, request a copy of the bill
of complaint in this action.
Dated April 25th, 1887.
Yours, &c., JOSIAH SULLIVAN,
Attorney for Defendant ; Office, 15 & 16 Elwood B'd’g ;
P. O. Address, Rochester, N. Y.
Filed Apr. 27, 1887.
W. S. DOOLITTLE, Clerk.
| 13 Order.
In the Circuit Court of the United States for the Northern District
of New York.
, APRIL 27, 1887.
Present: The Honorable William J. Wailace, judge.
MIcHAEL MaGIN
5618.
Sis... Gila oe aide
vs.
JOHN J. KARLE.
: On filing precipe in this cause and on motion of Josiah Sullivan—
4 Ordered that his appearance as solicitor for the defendant herein
i}
6 MICHAEL MAGIN Vs. JOHN J. KARLE AND
be and the same is hereby, entered, and that this cause be now
docketed for said defendant.
14 Answer.
Circuit Court of the United States, Northern District of New York.
MICHAEL MAGIN
vs. In Equity. No, 5617.
JouNn J. KARLE.
The answer of John J. Karle, the above-named defendant, to the
bill of complaint exhibited in this court by Michael Magin, com-
plainant.
To the honorable the judges of the cireuit court of the United States
within and for the northern district of New York:
The defendant herein, now and at all times hereafter saving and
reserving unto himself all benefit and advantage of exception
which can or may be taken or had to the many errors, omissions,
and deficiencies in said bill contained, for answer thereunto or unto
somuch and such parts thereof as he is advised are material and
necessary to make answer unto, answering, says—
That he is informed and believes that letters patent of the
15 United States were granted unto Charles Gordon, dated the
25th day of October, A. D. 1881, numbered 248,646, for an
alleged improvement in apparatus for drawing and cooling beer,
but vour defendant denies that the said Charles Gordon was the
original and first inventor of the improvements described in said
letters patent, or that the same was new and useful, and denies that
any exclusive right was secured to him by the grant of said letters
patent, as in said bill of complaint alleged.
And your defendant, not being informed save as by said bill of
complaintalleged — whether or no by an assignment duly executed —
the said Charles Gordon the entire right under said letters patent
was transferred to the complainant, or whether said assignment was
duly recorded in the United States Patent Olfice as required by law,
neither admits -or denies the same, but leaves the complainant to
make such proof thereof as he may be advised is material and nec-
essary.
And your defendant denies upon information and belief that
complainant has extensively applied the said invention or improve- -
ment to practical use; denies that he has been, is, or would have
been in the undisturbed possession of the same and denies that he
is entitled to any exclusive possession, use, or enjoyment of the
privileges alleged to be granted by said letters patent No. 248,646.
And your defeadant denies that he is now or has been using,
making, or selling unto others the said patented improvements or
=>?
any apparatus for drawing and cooling beer, containing said pat-
ented Improvements or any material or substantial part thereof,
as set forth and claimed in the letters patent granted unto the said
Gordon, as in said bill of complaint alleged.
—
os napiayarn*
SPI eg i RIT ee SERS:
PEC RRALIRA >
MICHAEI MAGIN VS. JOHN H. LEHMAN. 7 7
16 And your defendant denies that he has in any way in-
fringed upon the letters patent granted unto the said Charles
Gordon and alleged to be held by the complainant, and denies that
heor his agents, servants, attorneys, or representatives have ever
made, used, or sold unto others any apparatus which infringed or in-
fringes upon the invention claimed by the said Charles Gordon and
recited in the claims of his said patent, No. 248,646.
But vour defendant alleges that prior to the alleged invention or
discovery of said improvement by the said Charles Gordon, and
more than two years before the filing by the said Charles Gordon of
an applieation for the letters patent upon said invention for draw-
ing and cooling beer, the same invention or substantial and mate-
rial parts thereof had been xnown and used in the city of Rochester,
county of Monroe, and State of New York, by the following-named
persons, viz., John Meinbard, John Boehm, Ernst J. Schaub, John
tusch, Frederick Hodecker, Eugene Welker, Anthony Kleinhanaz,
Martin Selbig, Frank J. Schaffer, Godfried Schaffer, Felix Guenther,
Charles Gilbert, Albert Steif, Adolph Cassabeer, William Barr,
George Werner, James D. McKay, Joseph A. Wolfe, Michael New-
hart, Camille Forrest, Fred. G. Marehand, Jacob Stuvenhaver,
Joseph Lauer, William Bartholomay, Michael Quinn, and Joseph
Rusch, all of the city of Rochester, in the county of Monroe and
State of New York; also by Joseph Giering, of Harrisburg, Pa., in
the city of Rochester, N. Y., and Louis Pebers and the firm of Bissel
& Co., of St. Louis, in the county of St. Louis and State of Missouri,
and used therein; and, moreover, vour defendant alleges that the
same invention was known to and used by others prior to the
alleged invention or discovery thereof by the said Charles Gordon
and more than two years before his application for letters patent
therefor; but vour defendant does not know the names of
17 such parties,and therefore prays leave to add them to this
answer as soon as he can become acquainted therewith.
And this defendant, farther answering, shows and alleges that
the said Gordon letters patent was declared to be null and void by
the United States circuit court in and for the northern district of
New York, at a regular term thereof held at the court-house, in
the village of Canandaigua, N. Y., on or about the 20th day of
August. 1885, Hon. Samuel Blatchford, one of the judges of this
court, presiding, in two certain suits, wherein Michael Magin, this
plaintiff, was plaintiff and James D. MeKay and Eugene Welker
were defendants, and that in said actions it was adjudged and de-
creed that the alleged invention described and claimed in the said
Gordon letters patent had been anticipated by an apparatus invented
and put in use by John Meinhard in the city of Rochester, N. Y.,
in 1877, and continued in use for about four years, and that the
said Gordon letters patent were therefore null and void; whereupon
and shortly after said decree was made said plaintiff made a motion
before the said Hon. Samuel Blatchford, justice, for a rehearing,
which motion was denied on the merits and a decree to that effeet
embodying said decision, also denial of said motion, was duly and
regularly entered in the said United States circuit court clerk’s
° TGR RMAMRRDETammeR TICS
I oe < o
i ote MURS eB et bea
Pee Pe eee Pwr 2 SRS RS rt aie 2
8 MICHAEL MAGIN VS. JOERN J. KARLE AND
office, in the city of Utica, on the 24th day of February, 1886, and
a certified copy thereof with a notice of ent-y was served on plain-
tiff’s counsel on the 5th day of March, 1886, from which decision
and decree no appeal has been taken and the same remains in full
force, and in view of the said decision of this court adjudging and
decreeing said Gordon letters patent pull and void upon the merits
this action should not and cannot be maintained.
And, having thus fully answered the allegations of said bill of
complaint, your defendant says that the said complainant
18 has no right to receive from him any damages or costs, as in
said bill is prayed, and your defendant prays your honors
that he may be hence dismissed with his proper costs and charges
in this behalf most wrongfully sustained.
JOHN J. KARLE.
JOSIAH SULLIVAN,
Defendant’s Solicitor, 15 and 16 Elwood Building, Rochester, N. Y.
Crry oF ROCHESTER, oe
County of Monroe, Northern Dist. of New York, f°
John J. Karle, being duly sworn, deposes and says that he has
heard read the foregoing answer by him subseribed and knows the
contents thereof, and that the same is true of his own knowledge
except as to those matters therein stated to be alleged on informa-
tion and belief, and as to those he believes it to be true.
JOHN J. KARLE.
Subscribed and sworn to before me this 4th day of June, 1887.
[n. s.] M. H. McMATH,
Notary Public.
(Indorsed :) Answe-. Filed June 6, 1887. William S. Doolittle,
clerk.
19 Replication.
Circuit Court of the United Siates, Northern District of New York.
MiIcAHEL MAGIN
vs. In Equity.
K ARLE.
The replication of the above-named complainant to the answer of
Karle, defendant.
This repliant, saving and reserving to himself now and at all
times hereafter all and all manner of benefit and advantage of ex:
ception whieh may be had or taken to the manifold insufficiencies
of the said answer, for replication thereto says that he will aver
9
maintain, and prove this bill of complaint to be true, certain, and
sufficient in the law to be answered unto, and that the said answer
of the said defendant is uneertain, untrue, and insufficient to be re-
plied unto by repliant; without this, that any other matter or thing
POMP Sd NITIE
Sag An UREA gy... ie
el
2
tr
MICHAEL MAGIN YS. JOHN H. LEHMAN. 9
whatsoever in the answer contained material or effectual in the law
to be replied unto and not herein and hereby well and sufficiently
replied unto, confessed and avoided, traversed or denied, is true; all
which matters and things this repliant is and will be ready to aver,
maintain, and prove as this honorable court shall direct, and
humbly prays as in and by their said bill they have already prayed.
JOHN R. BENNETT & GEO. B. SELDEN,
Solicitors for Complainant.
Indorsed: Replication. Filed June 29, 1887. W.S. Doolittle,
clerk
20 Decree.
Ata term of the United States circuit court for the northern dis-
trict of New York, held on the 5th day of December, 1889.
CRP BARTS
; Present: Hon. Samuel Blatchford, circuit justice.
MicHaeEt MAGIN
: US. In Equity. No. 5617. Decree.
i JoHN J. KARLE.
This cause having been brought on to be heard upon the plead-
ings and proofs, and after hearing the parties by their respective so-
licitors, and the court having considered the matters submitted
herein, finds the issues for the defendant.
: Now, on motion of, Josiah Sullivan, defendant’s solicitor, it is
> hereby ordered, adjudged, and decreed that the bill of complaint of
) the complainant herein be, and the same is hereby, dismissed on tha
merits, and that the defendant, John J. Karle, recover of the com-
' plainant, Michael Magin, his costs, to be taxed by the clerk of this
- court, and have execution therefor.
SAM’L BLATCHFORD,
Circuit Justice.
os PDE OMNES Say rns,
Indorsed: Decree. Filed Dee. 5, 1889. W.S8S. Doolittle, clerk.
21 Whereupon the said pleadings, process, orders, and final
decree, together with other papers in said cause, are duly an-
nexed hereto, and this decree is duly enrolled, pursuant to the rules
» and practice of this court, this second day of January, A. D. 1890,
- at three o’clock in the afternoon.
W.S. DOOLITTLE, Clerk.
- Indorsement on cover: Equity. No. 5617. United States circuit
court, northern district of New York. Michael Magin vs. John J.
Karle. Enrolled decree. Josiah Sullivan, def’t’s solicitor. Costs,
$466.60. Filed Jan. 2, 1890, at 3 o’clock p. m. W. S. Doolittle,
clerk.
2—323
10 MICHAEL MAGIN VS. JOHN J. KARLE AND
22 Statement.
United States Circuit Court, Northern District of New York.
MicHAEL MAGIN |
VETSUS. In Equity. Docket No. 5618.
Joun H. LEHMAN.
The complainant in the above-entitled cause filed his bill of com-
plaint against the defendant herein on the 26 day of March, 1887,
which bill is hereto annexed.
A subpcena to appear and answer in said cause was thereupon
issued and served personally upon the defendant previous to the re-
turn day thereof, which subpcena and proof of service thereto are
hereto annexed.
On the 27 day of April, 1887, the defendant daly appeared in |
said cause by Josiak Sullivan as his solicitor, and on the 6th day of
June, 1887, filed his answer to the bill of complaint herein, which
answer Is hereto annexed.
On the 29 day of June, 1887, the complainant filed his replica-
tion to the said answer, which replication is hereto annexed.
Testimony was thereafter taken by and on behalf of the respect-
ive parties, and the said cause was brought toa hearing and argued
by counsel upon pleadings and proofs before the Honorable Samuel
Blatchford at a term of this court.
A decision was duly made by said court in favor of the defend-
ant and filed herein the 28 day of October, 1889.
That thereafter and on the 2 day of January, 1890, the defend-
ant’s costs and disbursement were duly taxed and adjusted by the
clerk of this court at $466.60.
23 On the 6 day of December, 1SS9, at a term of this court,
held at , present, the Honorable Samuel Blatchford, judge,
a final decree was made and entered in the said euase, which final
decree is hereto annexed.
24 Bill cf Compiaint.
Circuit Court of the United States in and for the Northern District
of New York.
MicuagEn. Maain
's. [n Equity.
Joun H. Leuman.
To the honorable the judges of the circuit court of the United States
in and for the northern district of New York:
Michael Magin, of the city of Rochester, county of Monroe, in the
State of New York, and a citizen of said State, brings this bill
against John H. Lehman, of the city of Rochester aforesaid and a
citizen of said State of New York.
— wwe
| i )
PO be Ape
MICHAEL MAGIN Vs. JOHN H. LEHMAN, 1l
And thereupon your orator complains and _ says that heretofore
and before the twenty-fifth day of October, A. D. 1881, one Charles
Gordon, of said city of Rochester, was the true, original, and first
inventor of an “improved apparatus for drawing and cooling beer,
ale, &c.,” not known or used before and not in publie use or on sale
for more than two years prior to his application for a patent there-
for.
And your orator further shows unto your honors that the said
Charles Gordon, so being the inventor of said improvement
29 and a citizen of the United States, made application to the
proper department of the Government of the United States
for letters patent, in accordance with the then existing acts of Con-
gress, and duly complied in all respeets with the conditions and
requirements of said acts of Congress, and that on October 25th,
A. D. 1881, letters patent of the United States, numbered 248,646,
signed, sealed, and executed in due form of iaw, for the said inven-
tion or discovery, were issued to the said Charles Gordon, whereby
there was secured to him, his heirs, executors, administrators, or
assigns, for the term of seventeen years froin the twenty-fifth day
of October, 1881, the full and exclusive right of making, using, and
vending the said invention or discovery throughout the United
States and the territories thereof. 3
Annd your orator further shows unto your honors that on or about
the ninth day of March, eighteen hundred and eighty-two, the said
Charles Gordon, by an assignment in writing of tnat date, sold, as-
signed, and transferred unto your orator, the said Michael Magin,
all his right, title, and interest in and to said letters patent and in-
vention, which assignment was duly recorded in the Patent Office
of the United States, as by said assignment or a duly authenticated
copy thereof and the certificate of such recording thereto affixed,
ready in court to be produced, will fully and at large appear.
Annd vour orator further shows that your orator has extensively
applied the said improvement to practical use and has been
26 and, but for the infringement hereinafter complained of,
would still be in the undisturbed possession, use, and enjoy-
inent of the exclusive privileges secured hy the said letters patent
and in receipt of the profits of the same.
And your orator further shows unto your honors, as he is in-
formed and believes, that the said defendant hereinafter named,
well knowing all the facts hereinbefore set forth, is now using an
apparatus for drawing and cooling beer, ale, &c., substantially the
same in construction and operation as in the said letters patent
mentioned, the exclusive right and privilege to make, to use, and
vend which throughout the United States and the territories thereof
is thus by law vested in your orator.
And so it is, may it please your honors that the said defendant,
as your orator is informed and believes, without the license of your
orator, against his will, and in violation of his rights, has used and
intends to continue still to use within the northern district of New
York the said invention, all of which is in violation of the said let-
ters patent—
12 MICHAEL MAGIN VS. JOHN J. KARLE AND
To the end, therefore, that the defendant may, if he can, show
reason why your orator should not have the relief hereby prayed,
and that he may make a full disclosure and discovery of all the
matters aforesaid and upon his oath and according to the best and
utmost of his knowledge, remembrance, information, and belief full,
true, direct, and perfect answer make to the several allegations of
this bill as though specially interrogated relative thereto—
27 And now, tothe end that the defendant may be compelled
to account for and pay over the income thus unlawfully de-
rived from the violation of the rights of your orator as above and be
restrained from any further violation of said rights, your orator prays
that your honors may grant a writ of injunetion restraining the de-
fendant from any further construction or sale or use In any manner
of said patented improved apparatus or any part thereof in violation
of the rights of your orator as aforesaid, and that the infringing ap-
paratus now in possession or use of the said defendant may be de-
stroyed or delivered up to your orator for that purpose, and also
that your honors, upon the rendering of the decree for an infringe-
ment as above prayed for, may proceed to assess or cause to be as-
sessed under your direction, in addition to the profits to be accounted
for by the defendant as aforesaid, the damages your orator bas sus-
tained by reason of such infringement, and that your honors may
increase the actual damages so assessed toa sum equal to three times
the amount of such assessment under the circumstances of the will-
ful and unjust infringement by said defendant, as herein set forth ;
and your orator prays also fora provisional or preliminary injune-
tion and for such other relief as the equity of the case may require
and to your honors may seem meet.
May it please your honors to grant unto your orator not only a
writ of injunetion conformable to the prayer of this bill, but also a
writ of subpcena of the United States of America, directed to
28 the said John H. Lehman and commanding him to appear
and answer unto this bill of complaint and to abide and per-
form such order and deeree in the premises as to the court shall
seem meet and be required by the principles of equity and good
conscience.
MICHAEL MAGIN.
GEO. B. SE
»
LDEN,
JOH IN
N kt. B wet NET’ a
Solicitors and Counsel for Complainant.
Unitep STates oF AMERICA, |
“y ’ Ty a 8! :
County of Monroe, State of N. ¥., f°
Michael Magin, the complainant in the foregoing bill named, be-
ing duly sworn, deposes and says that so far as the statements
therein contained are within his own knowledge they are true and
so far as they are derived from the information of others he verily
believes them to be true; and he further says that he verily be-
lieves the said Charles Gordon in said bill named to be the original,
true, and first inventor of the said improved apparatus for drawing
Diet see, Abed
Pw!
ee RG
eS nee Fae %
eucenes,
MICHAEL MAGIN VS. JOHN H. LEHMAN. 13
and cooling beer, ale, &c., which is described in the said letters pat-
ent granted to the said Charles Gordon, No. 248,646, dated Oct. 25,
1881, and mentioned in the foregoing bill, and your deponent
verily believes that his title as set forth in said bill is true.
MICHAEL MAGIN.
Sworn to and subscribed this 21st day of March, A. D. 1887, before
me— |
Z. L. DAVIS,
[v. s.] Notary Public.
29 (Indorsed :) Bill in equity. Filed Mar. 26, 1887. W.S.
Doolittle, clerk.
30) Order.
In the Circuit Court of the United States for the Northern District
of New York.
Marcu 26, 1887.
Present: The Honorable William J. Wallace, judge.
MicnaAkEr MAGIN
vs. 5618.
Joun H. LEHMAN.
On filing bill of complaint in this cause and on motion of George
B. Selden and John R. Bennett, complainant’s solicitors—
Ordered that a writ of subpeena do issue out of and under the
seal of this court pursuant to the praver of said bill, and that this
cause be docketed for said complainant.
°1 Writ of Subpa nd.
e)
The President of the United States of America to John H. Lehman,
Greeting :
You are hereby commanded that you personally appear before
the judges of the cireuit court of the United States for the
[u.s.] northern distriet of New York, in the second circuit, on the
first Monday in May, 1887, to answer to a bill of complaint
exhibited against you in said court by Michael Magin, and to do
further and receive whatever said court shall have considered in
that behalf, and this you are not to omit under the penalty of two
hundred and fifty dollars.
Witness the Honorable Morrison R. Waite, Chief Justice of the
Supreme Court of the United States, at the city of Utica, in said
northern district, the 26th day of March, eighteen hundred and
eighty-seven.
W. 8S. DOOLITTLE, Clerk.
GEORGE B. SELDEN anp
JOHN R. BENNETT,
Solicitors for Complainant.
14 MICHAEL MAGIN Vs. JOHN J. KARLE AND
MemMorANDUM.—The defendant is to enter his appearance in the
suit above mentioned in the clerk’s office, at Utica, on or before the
day at which the above subpoena is returnable; otherwise the bi!l
may be taken pro confesso.
W. S. DOOLITTLE, Clerk.
32 Unitep States Or AMERICA, Drage
Northern District of New York, {°°
I hereby certify that on the 28th dav of Mareh, 1887, at Roches-
ter, in my district, I personally served the within writ of subpoena
on the within-named defendant by showing the same to him with
the seal of the court thereon, and at the same time delivering to
and leaving with bim a true copy thereof,
WALTER H. BUNN,
U.S. Marshal.
J. M. BARDWELL, Deputy.
(Indorsed :) Equity subpeena. Filed Apr. 1, 1887. W.S. Doo-
little, clerk.
Oo Appearance.
United States Circuit Court, Northern Distriet of New York.
MicHAEL MAGIN \
against No. 5617.
JoHN H. Leumay. (
Notice of retainer.
To W.S. Doolittle, Esq. :
Please take notice that T, having been retained by and appear
herein for the defendant, John H. Lehman, request a copy of the
bill of complaint in this action.
Dated April 25th, 1887.
Yours, &e., JOSIAH SULLIVAN,
Altorney for Defendant.
Office, 15 & 16 Elwood b’d’g; P.O. address, Rochester, N. Y.
Filed Apr. 27, 1887.
W.S. DOOLITTLE, Clerk.
MICHAEL MAGIN VS. JOHN H. LEHMAN.
34 Order.
In the Circuit Court of the United States for the Northern District
of New York.
APRIL 27, 1887.
Present: The Honorable William J. Wallace, judge.
MicHAEL MAGIN
v8. o617.
Joon H. LEHMAN.
On filing preecipe in this cause and on motion of Josiah Sulli-
van—
Ordered that his appearance as solicitor for the defendant herein
be, and the same is hereby, entered, and that this cause be now
docketed for said defendant.
30 Answer.
Circuit Court of the United States, Northern District of New York.
MicHakEL MAGIN
vs, In Equity. No. 5618.
Joun H. LEHMAN.
To the honorable the judges of the circuit court of the United States
within and for the northern district of New York:
The answer of John H. Lehman, the above-named defendant, to the
bill of complaint exhibited in this court by Michael Magin, com-
plainant.
The defendant herein, now and at all times hereafter saving and
reserving unto himself all benefit and advantage of exception which
ean or may be had or taken to the many errors, omissions, and
deficiencies in said bill contained, for answer thereunto, or unto so
much or such parts thereof as he is advised are material and neces-
sary to make answer unto, answering, says—
That he is informed and believes that letters patent of the United
States were granted unto Charles Gordon, dated the 25th day of
October, A. D.1851, numbered 248,646, for an alleged improvement
in apparatus for drawing and cooling beer; but your defendant de-
nies that the said Charles Gordon was the original and first inventor
of the improvements described in said letters patent, or that the
same was new and useful, and denies that any exclusive right was
secured to him by the grant of said letters patent, as in said bill of
complaint alleged.
And your defendant, not being informed save as by said bill of
complaint alleged whether or no by an assignment duly executed
by the said Charles Gordon the entire right under said letters patent
was transferred to the complainant, or whether said assignment was
+ rm |
eC om
16 MICHAEL MAGIN Vs. JOHN J. KARLE AND
duly recorded in the United States Patent Office, as required by
law, neither admits -or denies the same, but leaves the complainant
to make such proof thereof as he may be advised is material and
necessary.
And your defendant denies upon information and belief that
complainant. has extensively applied the said invention or improve-
ment to practical uses; denies that he has been, is, or would have
been in the undisturbed possession of the same, and denies
ob that he is entitled to any exclusive possession, use, or enjov-
ment of the privileges alleged to be granted by said letters
patent No. 245,646.
And your defendant denies that he is now or has been using,
making, or selling unto others the said patented improvement or
any apparatus for drawing and cooling beer containing said
patented improvements or any material and substantial part thereof,
as set forth and claimed in the jetters patent granted unto the satd
Gordon, as in said bill of complaint alleged.
And your defendant denies that he has in any way infringed
upon the letters patent granted unto the said Charles Gordon and
alleged to be held by the complainant, and denies that he or his
agents, servants, attorneys, or representatives have ever made, used,
or sold) unto others any apparatus which infringed or infringes
upon the invention claimed by the said Charles Gordon and recited
in the claims of his said patent, No. 248,646.
But your defendant alleges that prior to the alleged invention or
discovery of said improvement by the said Charles Gordon aud
more than two vears before the filling by the said Charles Gordon of
an application for the letters patent upon seid invention for drawing
and cooling beer the same Invention or substantial and material
parts thereof had been known and used in the city of Rochester,
county of Monroe and State of New York, by the following-named
persons, viz, John Meinhard, John Boehm, Ernst J. Schaub, John
Ruseh, Frederich Hodecker, Eugene Welker, Anthony Kleinhanz,
Martin Selbig, Frank J. Schaffer, Godfried Schaffer, Felix Guenther,
Charles Gilbert, Albert Steif, Adolph Cassabeer, William) Barr,
George Werner, James D. McKay, Joseph A. Wolfe, Michael New-
hart, Camille Forrest, Fred. G. Marchand, Jacob Stuvenbaver,
7 Joseph Lauer, William Bartholomay, Michael Quinn, and
Joseph Ruse}, all of the city of Rochester, in the county of
Monroe and State of New York; also by Joseph Giering, of Harris-
burg, Pa., in the city of Rochester, N. Y., and Louis Pebers and the
firm of Bissel & Co., of St. Louis, in the county of St. Louis and
State of Missouri, and used therein ; and, moreover, your defendant
alleges that the same invention was known to and used by others
prior to the alleged invention or discovery thereof by the said
Charles Gordon and more than two years before his application for
letters patent therefor, but yvour defendant does not kuow the name
of such parties, and therefore prays leave to add them to this answer
as soon as he can become acquainted therewith.
And this defendant, further answering, shows and alleges that the
said Gordon letters patent was declared to be null and void by the
.
i Bt
MICHAEL MAGIN VS. JOHN H. LEHMAN. 17
United States circuit court in and for the northern district of New
York at a regular term thereof held at the court-house, in the village
of Canandaigua, N. Y., on or about the 20th day of August, 1885,
Hon. Samuel Blatchford, one of tne judges of this court, presiding,
in two certain suits, wherein Michael Magin, this plaintiff, was plain-
tiff and James D. McKay and Eugene Welker were defendants, and
that in said action it was adjudged and decreed that the alleged in-
vention described and claimed in the said Gurdon letters patent had
been anticipated by an apparatus invented and put in use by John
Meinhard in the city of Rochester, N. Y., in 1877, and continued
in use for about four vears, and that the said Gordon letiers patent
were therefore null and void; whereupon and shortly after said
decree was made said plaintiff made a motion before the said Hon.
Samuel Blatchford, justice, for a rehearing, which motion was de-
nied on the merits,and a decree to that effect, embodying said
decision, also denial of said motion, was duly and regularly
38 entered in the said United States circuit court clerk’s office, in
the city of Utica, on the 24th day of February, 1886, and a
certified copy thereof, with notice of entry, wasserved on plaintiff's
counsel on the 5th day of March, 1886, from which decision and
decree no appeal has been taken and the same remains in full force;
and in view of the said decision of this court adjudging and decree-
ing said Gordon letters patent null and void upon the merits this
action should not and cannot be maintained.
And, having thus fully answered the allegations of said bill of
complaint, your defendant says that the said complainant has no
right to receive from him any damages or cost as in said bill is
prayed, and yvour defendant prays your honors that he may be hence
dismissed with his proper costs and charges in this behalf most
wrongfully sustained.
JOHN H. LEHMAN.
JOSIAH SULLIVAN,
Defendant's Solicitor,
15 and 16 Elwood Building, Rochester, N. Y.
City oF ROCHESTER, | ae
County of Monroe, Northern Dist. of New York, { °°’
John H. Lehman, being duly sworn, deposes and says that he has
heard read the foregoing answer by him subscribed and knows the
contents thereof, and that the same is true of his own knowledge
except as to those matters therein stated to be alleged on informa-
tion and belief, and as to those he believes it to be true.
JOHN H. LEHMAN.
Subscribed and sworn to before me this 3d day of June, 1887.
WILLIAM W. WEBB,
Notary Public.
(Indorsed :) Answer. Filed June 6, 1887. W.S. Doolittle, clerk.
3—323
ARIE SNe Nan Ce at oe
Fen et ae em
18 MICHAEL MAGIN VS. JOHN J. KARLE AND
og Replication.
Circuit Court of the United States, Northern District of New York.
MICHAEL MAGIN
Us. In Equity.
LEHMANN.
The replication of the above-named complainant to the answer of
Lehmann, defendant.
This repliant, saving and reserving to himself now and at all
times hereafter all and all manner of benefit and advantage of ex-
ception which may be had or taken to the manifold insufficlencies
of the said answer, for replication thereunto says that he will aver,
maintain, and prove this bill of complaint to be true, certain, and
sufficient in the law to be answered unto, and that the said answer
of the said defendant is uncertain, untrue, and insufficient to be re-
plied unto by repliant; without this, that any other matter or thing
whatsoever in the answer contained material or effectual in the law
to be replied unto and not herein and hereby well and sufficiently
replied unto, confessed and avoided, traversed or denied, is true; all
which matters and things this replant Is and will be ready to aver,
maintain,and prove as this honorable court shall direct, and humbly
prays as in and by their said bill they have already prayed.
JOHN R. BENNETT &
GEO. B. SELDEN,
Solicitors for Complainant.
Indorsed: Replication. Filed June 29, 1887. W. S. Doolittle,
clerk.
40 Decree.
At a term of the United States ecireuit court for the northern
district of New York held on the 5th day of December, 1889.
Present: Hon. Samuel Blatehford, circuit justice.
MicHAEL MAGIN
vs. In Equity. No. 5617. Decree.
Joun H. Leuman.
This cause having been brought on to be heard upon the pleadings
and proofs, and after hearing the parties by their respective solicit-
ors, and the court having considered the matters submitted herein
finds the issues for the defendant—
Now, on motion of Josiah Sullivan, defendant’s solicitor, it is
hereby ordered, adjudged, and decreed that the bill of complaint of
the complainant herein be, and the same is hereby, dismissed on
the merits, and that the defendant, Johu H. Lehman, recover of the
PRCA RE tae fevers
RBG A
MICHAEL MAGIN VS. JOHN H. LEHMAN.
complainant, Michael Magin, his costs, to be taxed by the clerk of
this court, and have execution therefor.
SAM’L BLATCHFORD,
Circuit Justice.
Indorsed: Decree. Filed Dec. 5, 1889. W.S. Doolittle, clerk. ~
41 Whereupon the said pleadings, process, orders, and final
: decree, together with other papers in said cause, are duly an-
nexed hereto, and this decree is duly enrolled, pursuant to the rules
and practice of this court, this 2d day of January, A. D. 1890, at 3
o’clock and 30 minutes in the afternoon.
W.S. DOOLITTLE, Clerk.
Indorsement on cover:
Equity. No. 5618. United States circuit court, northern district
of New York. Michael Magin vs. John H. Lehman. Enrolled de-
: cree. Josiah Sullivan, def’t’s solicitor. Costs, $466.60. Filed and
3 entered Jan. 2, 1890, at 3 o’cleck & 30 min. p. m. W. S. Doolittle,
clerk.
42 Complainant’s Testimony.
United States Circuit Court, Northern District of New York.
MIcHAEL MAGIN
v8. _ >In Equity. No. 5617.
JOHN J. KARLE.
MicHaAkEL MAGIN \
US.
In Equity. No. 5618.
JoHN H. LeHMan. J
Proofs for final hearing on the part of the complainant, taken under
and pursuant to the 67th rule, as amended, before C. D. Kiehel,
notary public and special examiner, by consent.
L0CHESTER, N. Y., July 20th, 1887.
4 be’ Sieg 2
SRA aie Fa I: as ET ote
Met pursuant to notice.
Present: Messrs. George B. Selden and John R. Bennett, counsel
for complainant, and Josiah Sullivan, Esq., counsel for defendant.
Complainant’s counsel offers in evidence printed copy of letter-
patent of the United States granted Charles Gordon October 25,
1881, No. 248,646, for apparatus for cooling beer, and the same is
marked Complainant’s Exhibit Gordon Patent. It is stipulated
that the printed copy of said patent may be used in place of the
original.
‘ 43 Also copy of assignment, dated March 9, 1882, recorded in
the United States Patent Office March 11, 1882, Liber K 27,
t page 331, of Transfers of Patents, from Charles Gordon to Michael
* Magin, the complainant herein, transferring and assigning to the
said Magin the entire right, title, and interest to the said Gordon
es CRN EPS ER BLE
————. =
20 MICHAEL MAGIN VS. JOHN J. KARLE AND
invention and letter-patent of October 25, 1881, No. 248,646. It is
stipulated that the foregoing copy of said assignment be used in
place of the original.
Also a drawing of the apparatus for cooling and drawing beer
used by John J. Karle, the defendant herein, at his saloon, in the
city of Rochester, since October 25, 1881, and prior to the filing of
the bill of complaint herein.
Drawing received in evidence and marked Complainant’s Ex-
hibit Defendant’s Beer-Cooler.
Defendant’s counsel admits that the foregoing drawing correctly
represents the apparatus for cooling and drawing beer used by the
defendant Karle at his saloon, in the city of Rochester, N. Y., since
the 25th day of October, 1881.
It is further admitted by defendant’s counsei that the apparatus
for cooling and drawing beer used by the defendant Karle at his
saloon, in the city of Rochester, since the 25th day of October, 1881,
and prior to the filing of the bill of complaint herein was as_ fol-
lows, to wit:
The apparatus consisted of an upper ice box located in the saloon
and a lower ice box or chamber located in the cellar, said boxes
being connected by a galvanized iron pipe of about four inches In
diameter, the upper ice box to be filled with ice and the lower
ice box or chamber containing an ice rack or holder run-
44 ning across one end, to be filled with ice, and the kegs of
beer to be placed in the remaiuing part of thechamber. The
supply pipes, of which there are six, each of g-inch diameter, for
conveying the beer from the kegs to the faucet are connected up
through the galvanized iron pipe which connects the upper and
lower ice boxes and chambers, the supply or beer pipes running
through the upper ice box, where they are connected tothe faucets.
The galvanized iron pipe connecting the upper and lower cham-
bers, through which the beer-supply pipes are run, aets both as:
cold-air passage from the upper to the lower chamber and as adrip
pipe for conducting the ice water from the upper ice box to the
lower ice,box or chamber when the apparatus is 1n use.
Ice is placed in the upper ice box and in the ice rack or holder
in the lower ice box, and the beer-supply pipes running through
the galvanized tron pipe connecting the upper and lower chambers
are connected to the beer kegs in the lower chamber and the faucets
in the upper chamber, and, air pressure being properly introduced
into the kegs and the faucets on the upper ice box opened, the beer
is forced up and out. The galvanized iron pipe conducting the
upper and lower chambers, being somewhat larger in diameter than
the beer-supply pipes, conducts the ice water formed by the melting
of the ice from the upper to the lower chamber and around the
beer-supply pipes, and at the same time acts asa cold-air passage
from the upper to the lower chamber for the purpose of cooling the
beer contained in and passing through the beer-supply pipes.
Also a drawing of the apparatus for cooling and drawing
45 beer used by John H. Lehman, the defendant herein, at his
SC." Gaeeoees
Ten et Yass
ae
Nh i
Te Nig Ra, ESS ERR RE
MICHAEL MAGIN VS. JOHN H. LEHMAN. 21
saloon, in the city of Rochester, since October 25th, 1881, and prior
to the filing of the bill of complaint herein.
Drawing received in evidence and marked “ Complainant’s Ex-
hibit Defendants’ Beer-Cooler.”
Defendants’ counsel admits that the foregoing drawing correctly
represents the apparatus for cooling and drawing beer used by the
defendant, John H. Lehman, at his saloon, in the city of Rochester,
N. Y., since the 25th day of October, 1881, and prior to the filing of:
the bill of complaint herein.
It is further admitted by defendants’ counsel that the apparatus
for cooling and drawing beer used by the defendant Lehman at
his saloon, in the city of Rochester, since the 25th day of October,
1881, and prior to the filing of the bill of complaint herein, was as
follows, to wit:
The apparatus consisted of an upper ice box located in the saloon
and a lower ice box or chamber located in the cellar, said boxes
being connected by a galvanized iron pipe of about four inehes in
diameter, enclosed in a cast-iron pipe, there being substantially no
space between the outer galvanized iron pipe and the cast-iron
pipe.
The upper ice box to be filled with ice and the lower ice box or
chamber containing an ice rack or chamber running across one end,
to be filled with ice and the kegs of beer to be placed in the remain-
ing part of the chamber. The supply pipes, of which there are six,
for conveying the beer from the kegs to the faucet are conducted up
through the galvanized iron pipe which connects the upper
46 and lower ice boxes or chambers, the supply or beer pipes
running through the upper ice box, where they are connected
with the faucets. The galvanized iron pipe connecting the upper
and lower chambers, through which the beer-supply pipes are run,
acts both as a cold-air passage from the upper to the lower chamber
and asa drip pipe for conducting the ice water from the upper ice
box to the lower ice box or chamber when the apparatus in in use.
Iceis placed in the upper ice box and in the ice rack or holder in
the lower ice box or ehamber, and the beer-supply pipes, running
through the galvanized iron pipe connecting the upper and lower
chambers, are connected to the beer kegs in the lower chamber and
the faucets in the upper chamber, and air pressure being properly
introduced into the kegs and the faucets on the upper ice box being
opened the beer is foreed up and ont. The galvanized iron pipe
connecting the upper and lower chambers, being somewhat largerin
diameter than the beer-supply pipes, conducts the ice water formed
by the melting of the ice from the upper to the lower chamber and
around the beer-sup ply pipes and at the same time acts as a ccld-
alr passage from the upper to the lower chamber for the purpose of
cooling the beer contained in and passing through the beer-supply
pipes.
Recess until 2.30 p. m.
|
5 ave ants sul Sha Ba RE A SERIO Ese it Te TINS
a MICHAEL MAGIN VS. JOHN J. KARLE AND
2.30 P. M.
Parties appeared as before.
Rurus F. Oscoop, a witness called on the part of the complain-
ant, being first duly sworn, deposes and says as follows:
Q. 1. What is your name, age, residence, and occupation ?
47 A. My name is Rufus F. Osgood ; age, fifty-tive; residence,
Clarkson, N. Y., and occupation solicitor of patents and ex-
pert in matters relating to patents.
Q. 2. How long have you been engaged in the business of solicit-
ing patents and acting as expert in matters relating to patents and
what experience, ifany, have you had in testifying as an expert in
patent cases pending in the United States courts ?
A. Since 1856, during which period [ have been frequently called
upon to testify as an expert in) patent cases, and more especially
during the last nineteen years.
Q.3. Have vou read and do you understand letters patent of the
United States No. 248,646, issued to Charles Gordon October 20th,
1881, for apparatus for cooling and drawing beer ?
A. I have frequently read and carefully considered the Gordon
patent referred to and believe T fully understand the invention of
the said Gordon as deseribed in his patent. I testified asan expert
in the eases of Michael Magin vs. James D. Mekay, and Michael
Magin vs. Eugene Welker, pending in the United States court for
the northern distriet of New York, for alleged infringement of the
Gordon patent referred to,
Q. 4. Understanding, as vou say, the invention deseribed and
claimed in the said Gordon patent of October 25th, 1881, do you
find the said Gordon’s invention so fully deseribed and specified ia
his said patent of October 25th, ISS, as to enable any person skilled
In the art to construet and operate his said invention from the speci-
fications and drawings of the patent ?
48 A. [ do, the patent containing a very fall deseription of
the apparatus and the manner of operating the same.
Q.5. Have vou examined and do you understand the drawing
admitted to be a ecorreet representation of the apparatus used by the
defendant Karle for cooling and drawing beer ? ;
A. I have examined the drawing and understand the construe-
tion and arrangement of the apparatus which it represents, and my
understanding of the construction and arrangement of the appa-
raus and the manner in which the same is operated is confirmed
by the admission of defendants’counsel, which I have earefully
read, :
Q.6. Have you read and do you understand the drawing ad-
mitted to bea correct representation of the apparatus used by the
defendant Lehman for cooling and drawing beer? :
A. I have examined the drawings and understand the eonstrue-
tion and arrangement of the apparatus which it represents, and my
understanding of the construction and arrangement of the appa-
ratusand the manner in which if operates is confirmed by the
admission of defendants’ counsel, which [ have carefully read.
SP ERO eRe
ll
AOE IEE Sap ie a EERE
ans Bee
One
Ee ee
MICHAEL MAGIN VS. JOHN H. LEHMAN. 93
Q. 7. Compare the apparatus for cooling and drawing beer used
bv the defendant Karle, as shown by the drawing Exhibit Karle
Apparatus, and the admission of defendants’ counsel with the in-
vention shown and described in the Gordon patent of October 25th,
1881, No. 248,646, and especially claimed in the first and fourth
claims thereof, and state whether or not you find in the said Karle’s
apparatus for cooling and drawing beer the invention described
49 in the said Gordon patent and claimed in the first and fourth
claims thereof, giving your seasons for any opinion you may
express.
A. I have examined the apparatus for cooling and drawing beer
used by the defendant Karle, as exhibited in the drawing Exhibit
Karle Apparatus, and as set forth in the admission of defendants’
counsel, and have compared the same with the Gordon invention,
and in my opinion the said Karle apparatus contains the invention
shown and described in the Gordon patent and covered by the first
and fourth claims thereof.
The first claim of the Gordon patent covers the combination of,
first, the upper ice box, D; second, supply pipe B; third, faucet C,
and, fourth, eold-air passage H, the latter surrounding the beer-
supply pipe. The object of this cold-air passage, as stated in the
specification of the Gordon patent, is to allow the cold air to cireu-
late around the supply pipe and reduce “the temperature of the
beer in the supply pipe,” and also to allow “the water produced by
the melting of the ice in the ice box ” to “ flow downward through
the air passage, assisting in the cooling operation.” As I under-
stand the first claim, it covers broadly the combination of the four
parts named, so that any apparatus for cooling and drawing beer
consisting of an upper ice box, a supply pipe, through which the
beer passes, a faucet for the passage of the beer, and a cold-air pas-
sage surrounding the supply pipe, with space for the circulation of
cold air and the escape of the drip, would infringe that claim.
I find, on examining the drawing of the Karle apparatus and
reading the admission of defendants’ counsel, that the Karle
00 apparatus contains the same invention as that deseribed in
the Gordon patent and claimed in and by the first claim of
that patent, consisting, as admitted by defendants’ counsel of, first,
an upper ice box, in which ice can be placed; second, a supply
pipe through which beer passes froin the keg; third, a faucet at-
tached to the upper end of the supply pipe for the discharge of the
beer, and, fourth, a cold-air passage surrounding the supply pipes
below the upper ice box, and to allow the cold air to circulate
around the supply pipe and to carry downward the drip produced
by the melting of the ice in the upper ice box.
The defendant Karle uses six 3-inch supply pipes, located in a
four-inch cold-air passage. It is ovbvious that these six supply
pipes, while located in a four-inch cold-air space, leave ample space
for the circulation of the cold air and tor the passage downward of
the melting ice water.
The fact that six supply pipes are used instead of one makes no
uy IES SR AOE Pe Se Mae mes cone
94 MICHAEL MAGIN VS. JOHN J. KARLE AND
difference as to the matter of infringement, as it is only a duplica-
tion.
For the reasons above stated I am of the pr i that the defend-
ant Karle’s apparatus contains the invention covered by the first
claim of the Gordon patent.
The fourth claim in the Gordon patent covers the combination of,
first, an upper ice box, D; second, supply pipe B; third, faucet C ;
fourth, lower chamber I’, aud, fifth, the cold-air passage H, com-
municating between the ice box and the lower chamber.
The combination is thesame as the combination of the first claim,
with the additional feature of the lower ehamber F, where
l the beer kegs are kept. The Karle apparatus shows this
lower chamber, and the cold-air passage extends from the
upper ice box to the lower chamber, surrounding the supply pipes,
and so as to allow of a cold-air passage and the ‘drip to pass down.
In my opinion the Karle apparatus contains the combination of the
fourth claim of the Gordon patent.
Q. 8. Compare the apparatus for cooling and drawing beer used
by the defendant Lehman, as shown by the drawing, Exhibit Leh-
man Apparatus, and the admission of defendants’ counsel with the
invention shown and described in the Gordon patent of October 26,
1881, No. 248,646, and especially claimed in the first and fourth
claiins thereof, and state whether or not you find in the said Leh-
Inan apparatus for cooling and drawing beer the invention deseribed
in the said Gordon patent and claimed in lis first and fourth claims
thereof, giving your reasons for any opinion you may express,
A. I have examined the apparatus for cooling and drawing beer
used by the defendant Leliman, as exhibited in the drawing, Exhibit
Lehman Apparatus, and as set forth in the admission of defendant’s
counsel, and have compared the same with the Gordon invention,
and in my opinion the said Leliman apparatus contains the inven-
tion shown and described in the Gordon patent and covered by the
first and fourth claims thereof.
The first claim of the Gordon patent covers the combination of
(1) the upper ice box D, (2) supply pipe B, (8) faueet C, and (4)
the cold-air passage IT, the latte ‘r surrounding the beer-supply pipe.
The object of this cold-air passage, as stated in the specifica-
2 tion of the Gordon patent, is to allow the cold air to cireulate
around the supp HV pipe and reduce “the ten.perature of the
beer in the supply pipe, "and also to — “the water produced by
the me ting of the ice in the ice box ” to “ flow downward through
the air Passage, assis ting In the eooling oper ation.’
As I understand the first claim, it covers broadly the combination
of the four parts named, so that any apparatus for cooling and draw-
ing beer consisting of an upper ice box, a supply pipe through
which the beer passes, a faueet for the passage of the bee rT, and a
cold-air passage surrounding t the supply pipe, with space for the cir-
culation of cold air and the escape of the drip, would infringe that
claim.
I find on examining the drawing of the Lehman apparatus and
reading the admission of defendants’ counsel that the Lehman ap-
D
ee
—
= RB one eg are x
MICHAEL MAGIN VS. JOHN . LEHMAN. 25
paratus contains the same invention as that described in the Gordon
patent and claimed in and by the first claim of that patent, consist-
ing, as admitted by defendants’ counsel, of (1) an upper ice box, in
which ice can be placed ; (2) a supply pipe through which the beer
passes from the keg; (3) a faucet attached to the upper end of the
supply pipe for the discharge of the beer, and (4) a cold-air passage
surrounding the supply pipe below the upper ice box and to allow
the cold air to circulate around the supply pipe and to carry down-
ward the drip produced by the melting of the ice in the upper ice
box. , 7
: = The defendant Lehman uses six 3-inch supply pipes located in a
four-ineh cold-air passage. It 1s obvious that these six supply pipes,
while located in the four-inech cold-air space, leave ample
7 oo space for the circulation of the cold air and for the passage
downward of the melting ice water. The fact that six sup-
| | ply pipes are used instead of one makes no difference as to the mat-
: ter of infringement, as it is only a duplication.
' For the reasons above stated Iam of the opinion that the defend-
) ant Lelman’s apparatus contains the invention covered by the
claim of the Gordon patent.
' The fourth claim of the Gordon patent covers the combination of
, | (1) an upper tee box D, (2) supply pipe B, (5) faucet C, (4) lower
chamber I, and (5) the cold-air passage IT communieating between
the ice box and the lower chamber. The combination is the same
3 ; as the combination of the first claim, with the additional feature of
the lower chamber F, where the beer kegs are kept. The Lehman
r apparatus shows this lower chamber and the cold-air passage ex-
t tends from the upper ice box to the lower chamber surrounding the
5 supply pipes, so as to allow of a cold-air passage and the drip to { ~
i : pass down. In my opinion, the Lehman apparatus contains the
\- ‘ combination of the fourth claim of the Gordon patent.
e j Q. 9. Have you with you and can you produce a model showing
E and illustrating the Gordon invention shown and deseribed and
if claimed in the said Gordon patent of October 25, 1881, No. 248,646?
L) é A. I have such a model and here produce it.
e Said model is offered in evidence and marked “Complainant's
a Exhibit Model of the Gordon Beer Cooling and Drawing Appa-
os ratus,” it being admitted that the same model was given in evidence
is by the complainant herein in his suits against James D.
hh : o4 Mckay and Eugene Welker, brought in this court, No. 3771
| : and 3809 respectively, as a model of the Gordon invention.
yn : Cross-examination waived. ee
ri RUFUS S. OSGOOD.
a
a ¢ Read over, subscribed, and sworn to before me this 20th day of
r- : July, 1887. | |
at : C. D. KIEHEL,
Special Examiner and Notary Public.
Complainant rests.
4—323
eens er -ewmenepemmaretergnneenm = 40
AEs MES eye”
——— one ne
26 MICHAEL MAGIN VS. JOHN J. KARLE AND
STATE OF New York, | a
County of Monroe, {°° *
[ hereby certify that the foregoing is a just and true report of all
proceedings had and testimony taken before me on behalf of the
complainant herein; that the witness, Rufus S. Osgood, was by me
duly sworn to testify the truth, the whole truth, and nothing but
the truth: that his testimony was taken before me by a stenogra-
pher in my presence and thereafter read, subseribed, and sworn to
by him before me and in the presence of counsel; that IT am not
directly or indirectly interested in the matter at issue herein and
not related to any of the parties.
Rochester, N. Y., July 20, 1887.
[u. s.] C.D. KIEHEL,
Notary Public.
(Indorsed :) Complainant’s testimony. Filed Dee. 9, 1889. W.S. :
Doolittle, clerk. :
)
55 U. S. Cireuit Court, Northern District of New York. In
Equity.
MaAGIN_ )
vs. |
IK ARLE.
» Nos. 5617 & 5618. |
MAGIN
LEHMANN. |
Please take notice that the complainant in the above causes will
proceed to take testimony therein under the 67th rule in equity, as
amended, before C. D. Niebel, notary public & special ex’r, on Satur-
day, Dee. 3, 1887, at 10 o’clock a. m., at Reynolds’ areade, Rochester,
N.Y.
Dated Rochester, N. Y., Dee. 2, 1887.
JOHN R. BENNETT &
GEO. B. SELDEN,
Comp't’s Solicitors.
To Josiah Sullivan, Esq., defendants’ solicitor.
Indorsed : Notice of taking testimony.
ill
he
ne
ut
‘a-
to
ot
nd
In
MICHAEL MAGIN VS. JOHN H. LEHMAN,
56 Complainant’s Testimony in Rebuttal.
United States — Court, Northern District of New York.
MicuHakt MAGIN
Us. >In Equity. No. 5617.
JOHN J. KARLE.
MicuakEL MAGIN
vs. In Equity. No. 5618.
Joun H. LeEnMaAn.
Pursuant to notice, which is hereto annexed, proofs for the final
hearing on the part of the complainant in rebuttal in the above-en-
titled actions were taken under and pursuant to the 67th rule, as
amended, before C.D. Kiebel, notary public and special examiner,
on the 5d day of December, 1887, at 10 o’clock a. m., at No. 54 Rey-
nolds’ areade, Rochester, N. Y.
Present: John R. Bennett, Esq., and George B. Selden, solicitors
for complainant; Josiah Sullivan, Esq., solicitor for the defendants.
57 Stier, RAYMOND, sworn, in answer to interrogatories pro-
posed to him by Mr. Bennett, counsel for complainant, tes-
tified as follows:
Q. 1. What is vour name, age, residence, and occupation ?
A. My name is Raymond Stief. I live — 32 Galusha street; oc-
cupation, shoemaker; twenty-seven years old.
Q. 2. How iong have you been shoemaking ?
A. Pretty near seven years.
Q. 3. How were you employed before that time?
A. By Mr. Meinhard.
Q. 4. Give Mr. Meinhard’s full name and what his business was
and where he was located.
A. He kept summer garden or saloon on North St. Paul street ;
John Meinhard.
Q.5. When did you first work for Mr. Meinhard and iu what
capacity ?
A. I worked for Mr. Meinhard in the spring of 1877 as a waiter
boy.
Q. 6. How long did you work for Mr. Meinhard as waiter boy?
A. ‘Two vears or so.
Q. 7. While you were working for Mr. Meinhard as waiter boy
precisely what were your duties ?
A. Carry around beer and go down cellar and fetch up beer.
Q. 8. Then you had to go down cellar and fetch up the beer, did
you?
A. Yes, sir.
o8 Q.9. In what form did you bring the beer out of the
cellar ?
A. Rolled it out of a hallway and pulled it up with a derrick.
ee OE ™
28 MICHAEL MAGIN VS. JOEN J. KARLE AND
Q. 10. Then you went into the cellar for the kegs of beer that
were used upstairs ?
A. Yes, sir.
Q. 11. Where did you take the kegs from the cellar?
A. Out of the ice box.
Q. 12. Where did you take them to?
A. Upstairs, in the large hall.
Q. 13. By the large hall do you mean the summer garden ?
A. No,sir; there is a large hall there.
Q. 14. During the two years that vou were employed by Mein-
hard as waiter boy did you work there continuously ?
A. When there was anything going on Sundays, and picnics, and
such things as that.
Q. 15. Were vou ever employed by Meinhard other than a waiter
boy ?
A. Yes, sir.
Q. 16. When was that and for how long and in what capacity
were you employed ?
A. That was early in the spring. I was hired there steady, tend-
ing bar and working around the place.
Q. 17. The spring of what year was that?
A. That was the spring of 1879.
59 Q. 18. And after that you worked there continuously, did
you ?
A. Yes, sir.
Q. 19. Until what time?
A. Until the fall.
Q. 20. Where did you tend bar during this time?
A. Right in front, in the bar-room.
Q. 21. [In what was known as the saloon proper ?
A. Yes, sir.
Q. 22. Was the saloon proper kept open Sundays?
A. Until towards evening.
Q. 23. And what then was done?
A. It was closed up when the concert started in the large hall.
Q. 24. Was that the case every Sunday during the time you
worked there steadily in 1879?
A. Yes, sir.
Q. 25. Did you know Mr. Gilbert, Mr. Meinhard’s partner?
A. I did.
Q. 26. State whether or not Mr. Gilbert and Mr. Meinhard were
in and about the saloon attending to the business.
A. Yes, sir; they were most all the time. Mr. Gilbert was there
all day long, and used to be around the place.
Q. 27. Were Mr. Gilbert and Mr. Meinhard around the saloon on
Sundays ?
A. Yes, sir.
60 Q. 28. During the time you worked at Meinhard’s did he
have a beer cooling and drawing apparatus in use ?
A. Yes, sir.
Q. 29. State whether or not during the time you were employed
a ae a ee
y
ae a en a
MICHAEL MAGIN Vs. JOHN H. LEHMAN. 29
there as bartender in 1879 you used this beer drawing and cooling
apparatus.
A. I don’t understand you.
Q. 30. While you were tending bar at Meinhard’s in 1879 did
you draw beer through this beer drawing and cooling apparatus ?
A. Yes, sir.
Q. 31. Where was this beer drawing and cooling apparatus
located ?
A. Right up against the wall, back of the bar.
Q. 32. Where was the beer drawn from ?
A. It was drawn from the ice box down cellar.
Q. 33. Deseribe the upper part of this beer drawing and cooling
apparatus.
A. ‘There was three or four faucets out of the front end of the
box, and the cover of the box laid right on top of it, and there was
pipe run that was coiled on the inside of the box, and went down
out of the box through the cellar floor and into the large ice box
down below. :
Q. 34. In what part of the box in the saloon were the coils lo-
cated ”
A. Right in the bottom of the box.
Q. 35. And was there a coil for each faucet?
A. Yes, sir.
61 Q. 36. What, if anything, was placed in the upper box ?
A. Ice.
Q. 37. State what the ice was put in for and how you fixed it in
the box.
A. Used to go down cellar in the large ice box and break off a
ehunk and put it in there; that was to keep the beer cool that laid
in the coils. |
Q. 38. How did they get the melted ice water out of the upper ice
box ?
A. Dipped it out.
Q. 39. Was that a part of your duties?
A. Yes, sir.
Q. 40. Was there any other way of getting the melted ice water
out of the box ?
A. Not atall.
Q. 41. How often during the day did you dip the water out of the
upper ice box?
A. Two or three times, according to the way the weather was;
how fast it melted.
Q@. 42. Who instructed you how to get the water out of the upper
ice box when vou first commenced tending bar ?
A. Mr. Guenther, who worked there, told me how te take it out.
Q. 43. Did Mr. Meinhard know how the water was taken out?
A. Yes, sir.
Q. 44. Did heever call your attention to the water in the ice
box ?
A. Yes, sir.
Q. 45. State what he said to you.
30) MICHAEL MAGIN VS. JOHN J. KARLE’ AND
62 A. He told me to go down cellar and fetch up another
chunek of ice and, if necessary, to dip it out every time we
put in ice.
Q. 46. Was there any wav in which the water could flow off
through drip pipes or other means ?
A. No, sir.
Q. 47. You say these beer-supply pipes went through the floor
and down into the cellar?
A. Yes, sir.
(). 48. Into the lower ice box ?
A. Yes, sir.
(). Describe, as near as you ean, the course of the pipes from the
upper ice box to the lower Ice box.
A. They went down through the floor, and this ee box down cel-
lar was in the hallway, and from the end of the ice box there wasa
wine-room, and this was slabbed up, and the pipes go on the outside
of the wine-room down and turned off into the slabs and into the
corners of the large ice box, in the east corner of the ice box.
Q). 50. Where was the ice box located in the cellar?
A. In the southwest corner.
@. 51. Where was this wine eellar which you speak of ?
A. On the south side of the cellar, ranning from the ice box up
to the other end.
Q). 52. Butted up against the ice box at one end, did it ?
A. Yes, SIP,
Q. 53. Ilow do you say that was divided off from the rest of the
cellar?
63 A. Slabs, piekets up and down from the ceiling to the
floor.
Q. 54. Am [ correct in understanding you that, as the beer-supply
pipes came through the floor, they were on the outside of the wine
cellar?
A. Yes, sir.
Q). 55, State whether or not the beer-supply pipes were visible.
A. Yes, sir.
Q. 56. For how long a distance were they exposed before going
into the wine cellar ?
A. A foot and a half or two feet.
Q). 57. And after entering the wine cellar where did these beer-
supply pipes ae t
A. They run over into the ice box.
Q. 58. And how far was it from where the beer-supply pipes en-
tered the wine cellar to where they entered the lower ice box.
A. Probably three feet.
Q. 59. Did these beer-supply pipes have any covering on them ?
A. No, sir.
Q). GO. As they came through the floor and entered the wine cellar
could vou or not see the bare pipe?
A. Yes, sir.
Q. G1. State whether or not there was any rubber pipe cr hose
ee eel -
MICHAEL MAGIN VS. JOHN H. LEHMAN. 31
surrounding these beer-supply pipes at any time while you were
there.
A. No, sir; they were perfectly bare.
(). 62. Were these pipes boxed in?
A. No, sir.
64 Q. 63. Perfectly bare, were they ?
A. Yes,sir; perfectly bare.
Q. 64. State whether or not there was any covering upon or
around these beer-supply pipes from their leaving the upper ice box
until their entrance into the lower ice box.
A. No, sir; there wasn’t any.
Q. 65. Was there any way in which the water from the upper ice
box could get down into the lower ice box ?
A. No, sir.
(). 66. Was there any air passage from the upper ice box to the
lower ice box?
A. No, sir.
Q. 67. Was thereany communication whatever between the upper
and lower ice box ?
A. No, sir.
Q. 6S. State what direction the beer-supply pipes took as they
entered the lower ice box.
A. After they got in a corner they were attached by a rubber
hose and this rubber hose run down to the barrels and fastened into
the barrels.
Q. 69. Was each beer-supply pipe coupled to a rubber pipe?
A. Yes, sir.
Q. 70. And the opposite end of that rubber pipe was then in turn
coupled to the beer faucets ?
A. y es, sir.
Q. 71. Other than these rubber connections which con-
65 nected the beer-supply pipes directly to the faucets, were
there any rubber pipes used about those beer-supply pipes ?
A. No », SIP. “
re . Describe this lower ice box.
The lower ice box ran from the ceiling to the floor, and there
was a place there to attach three half barrels of beer, and the beer
was tapped on the east side of the ice box, and then there was
shelving on the east, south, and west sides of the ice box, and the
floor of the ice box was where we used to stand the beer in when it
was ee by the peddler.
Q. 73. Was it to this ice box that you used to go to get the kegs
of wie agen you were a waiter boy ?
A. Yes, sir.
Q. 74. At that time did they draw the beer from kegs in the
lower ice box up into the saloon ?
A. Yes, sir.
Q. 70. Was it a part of your duties during the two years that you
were employed as waiter boy to go into the lower ice box and get
these kegs ?
A. Yes, sir.
32 MICHAEL MAGIN Vs. JOHN J. KARLE AND
Q. 76. During those two years did you or not tap beer that was
drawn up into the saloon?
A. No, sir.
Q. 77. Did you do that work when you became barkeeper ?
A. Yes, sir.
Q. 78. How often during the day would you go into the lower
ice box to tap the kegs and make the connections with the beer-
supply pipes?
66 A. Sometimes they wouldn’t tap only once or twice a day,
and Sundays probably they would tap two or three times.
Q. 79. How far from the floor were these shelves on which you
placed the ice in the lower ice box ?
A. They might have been five feet or more.
(). 80. Did the beer-supply pipes as they entered the ice box come
above or below the shelf on which the ice was placed ?
A. Above. -
Q. 81. Describe in your own way how the beer-supply pipes go
into the lower ice box.
A. After the pipes go down they go into the corner and run
right on top of this shelving, and the rubber hose run over the top
of the shelving and left the pipes in the corner.
Q. S2. What provision, if any, was made for taking care of the ice
water from the ice in the lower ice box ?
A. ‘There wasn’t any that | know of. We used to have to clean
the box out quite often; probably once or twice a week.
Q. 83. Every time you tappped a keg of beer in the lower cellar
and made the connection did you have to handle these pipes?
A. Yes, sir.
Q. S84. How many months during the year 1879 did you work
for Meinhard?
A. Eight or nine months.
Q. 55. And during all this time you were a steady bartender,
tending bar in a saloon ?
A. Yes, sir; every day.
(). S6. State whether or not all the beer that was used in
the upper saloon during the time you worked there continuously in
1879 was drawn through this beer drawing and cooling apparatus.
A. Not all of it. With the exception when there wasa circus used
to be on those grounds we didn’t have faucets enough to draw enough
and had to tap one back there; otherwise it was all drawn through
this apparatus.
Q. 57. Then for your ordinary trade ?
A. Yes, sir; all drawn through there.
Q. 88. Is it possible that the beer-supply pipes from the upper to
the lower ice box could have been covered and you not know of it?
0;
Defendants’ counsel objects to the question.
A. No, sir.
Q. SY. Could it have been possible that there Were any means for
drawing the ice water from the upper ice box to the lower ice box
and you not know of it?
MICHAEL
MAGIN VS. JOHN H. LEHMAN.
Same objection.
1S
A. No, sir.
Q. 90. Was it a part of your daily duties to dip the ice water from
the upper ice box ?
A. It was.
ed Q. 91. Did you ever see any one else dip the water from the upper
7 ice box?
A. Yes, sir.
£ (). 92. Who?
A. I have seen Mr. Pfefflin and seen Mr. Gunther.
” 68 Q. 93. Have you any recollection of Mr. Meinhard’s ever
having called your attention to the amount of water in the
a upper ice box and directing you to dip it out and to see thereafter
that it was dipped out more regularly ?
A. He has drawed my attention to it and told me to keep it
dipped out and filled up with ice.
° | Q. 94. You say each beer faucet had a coil of pipe in the bottom
of the upper ice box; were these coils of pipe in this ice box when
ah you went there?
Pp i A. Yes, sir.
Q. 95. And how was it when you left there ?
” A. Just the same.
: Q. 96. There was always these coils of pipe in the upper ice box?
, A. Yes, sir.
Q. 97. In going down cellar and into the lower ice box could these
- beer-supply pipes be clearly seen ?
A. Yes, sir.
Q. 98. Who kept the key to the wine cellar?
k A. It was always hanging back of the bar on a board.
; Q. 99. When you were barkeeper did you go into the wine cel-
; ar '
- A. Yes, sir.
: Q. 100. How often ? |
A. Two or three times a day and sometimes more.
m \ 69 Q. 101. State whether or not in going into the wine cellar
” : you would see these beer-supply pipes.
A. Yes, sir.
d | Q. 102. How were they as to being covered or uncovered in the
h wine cellar?
h A. They were bare.
Q. 103. When you was waiter boy did you have to go into the
lower ice box to get ice?
A. Yes, sir.
nl Q. 104. Did you have to put ice on this shelf at different times ?
9 A. The iceman generally used to do that.
Q. 105. Who took the beer kegs into the lower ice box when they
were delivered ?
A. The peddlar.
ad Q. 106. By peddlar do you mean the man that drove the team?
x A. Yes, sir.
5—323
ade
34 MICHAEL MAGIN VS. JOHN J. KARLE AND
Q. 107. In taking the beer kegs from the wagon into the ice box
would the driver pass the point “where the beer- supply pipes came
through the floor and into the wine cellar ?
A. Yes, sir.
Q. 108. Was there any way of lighting the cellar ?
A. Gas.
Q. 109. Where was the gas jet?
A. Right around these pipes.
Q. 110. Was it on the wine-cellar side or the ice-box side?
70 Defendants’ counsel objected to the question.
A. It was on the wine-cellar side.
Q. 111. You may state whether or not the gas was usually kept
burning in the cellar.
A. Ye es, sir; always was.
Q. 112. Was there any other way of lighting the lower cellar be-
sides this one gas Jet? °
A. That was all.
Q. 113. Did I understand you to say that when you left Mien-
hard’s vou went to shoemaking ?
A. Yes, sir.
Q. 114. And has that been your business since that time ?
A. Yes, sir. |
Q. 115. Examine the model now shown you, marked ‘ model of
Meinhard apparatus,” and state whether or not vou find that to be
a correct model of Meinhard’s beer drawing and -cooling appa-
ratus.
Defendants’ counsel objected to the question upon the ground
that the model is not properly proven.
A. That Is as near as it could be made.
The model referred to offered in evidence and marked Complain-
ant’s ape Model of Meinhard’s Apparatus. Defendants’ counsel
objected to it Upon the ground that the model is not properly
proven.
Q. 116. Then do you regard this as a correct model of the Mein-
hard ¢ pparatus ¢
71 Defendants’ counsel objected to the question,
A. I do.
Q.117. Tell us what this place partitioned off which I have
marked with the letter “A” was.
A. A water-closet.
Q. 118. And what does this which I have marked “B” repre-
sent ? ¢
A. That is the ice box upstairs,
(). 119. State what vou know about that ice box marked “ B.”
A. A common ice box, and all we kept in there was wine and
seltzer and ham and such stuff.
Q. 120. And what is this which J] have marked “C”?
OX
ne
pt
MICHAEL MAGIN VS. JOHN H. LEHMAN.
A. That is the ice box back of the bar for drawing beer.
Q. 121. Is that, then, what you have referred to as the upper ice
box forming a part of Meinhard’s beer drawing and cooling appa-
ratus ?
A. Yes, sir.
Q 122. Does this position that I have marked “ Y ” represent the
saloon floor ?
A. Yes, sir.
Q. 123. What was the distance from the floor of the saloon to the
bottom of the upper ice box, which I have marked “C” ?
A. I don’t understand.
Q. 124. What was the distance from the floor of the saloon to
the bottom of the upper ice box, in which the coils of pipe
rested ?
72 A. You inean how high it was ?
Q. 125. Yes, sir.
A. That might have been three or four feet.
Q. 126. Was there a closet underneath this upper ice box ?
A. Yes, sir.
Q. 127 “Was there any way of drawing the water from the upper
ice box off into this closet ?
A. No, sir.
(. 128. No water went into this closet, then ?
A. No, sir; none at all.
Q. 129. Does the lower part of this model which I have marked
E represent the floor of the cellar underneath the saloon ?
A. Yes, sir.
Q. 130. And what does the part which I have marked P repre-
sent ?
A. That is the bottom ice wr in the cellar.
Q. 131. That, then, is the lower ice box in the cellar that we have
been referring to, is it?
A. Yes, SIP. 4
Q. 132. Having carefully examined this model, you may state
whether or not it correctly represents the course of the beer- supply
pipes as they came through the floor and passed into the wine cel-
lar and then into the lower ice box.
A. Yes, sir.
Q. 133. What, if anything, does this brass bracket on the model
represent ?
A. Gas.
73 Q. 134. You may state whether or not that correctly rep-
resents the location of the gas jet in the cellar.
A. It was right near those pipes. .
Q. 135. And did the light from the gas show clearly upon the beer-
supply pipes?
A. It did.
Q. 136. At which end, as represented in this model, were the beer.
_ kegs slid in‘o the cellar?
A. Right in through here (through the part marked M).
ii RYE ap TNE A OO LITT
a Ln a es
36 MICHAEL MAGIN Vs. JOHN J. KARKRLE AND
Q. 137. Does this part partitioned off at the rear of the upper ice
box represent the hall?
A. Yes, sir.
Q. 138. And does this part which was partitioned off in the cellar
represent the passage-way that was In the cellar ?
A. Yes, sir; the cellar here and under the hall (pointing to E),
where the ice box is in the cellar and the wine-room—that is, a
cellar under the hallway.
Q. 159. That is the cellar under the upper hallway ?
A. Yes, sir.
Q. 140. During the time you worked at Meinhard’s did the beer-
supply pipes have any rubber upon them, such as shown by this
model, “ Defendant’s Exhibit Meinhard Apparatus Model ” ?
A. No, sir.
Q. 141. Did the beer-supply pipes enter the front of the lower ice
box, as shown in this model, “ Defendants’ Exhibit Meinhard Ap-
paratus Model”?
A. No, sir.
74 - Q. 142. During all the time you worked at Meinhards’,
both as waiter boy and bartender, did you ever see the beer-
supply pipes covered with any rubber hose such as represented in
this model ?
A. No, sir.
Q. 145. Is it possible, Mr. Stief, during the time vou tended bar at
Meinhard’s in 1879 that the beer-supply pipes from the upper to
the lower ice box could have been covered with rubber hose such
as shown In this model, “ Defendants’ Exhibit Meinhard Apparatus
Model”?
A. No,sir.
Q. 144. Were you familiar with Meinhard’s beer drawing and
cooling apparatus and its construction and operation ?
A. I was.
Cross-examination by defendants’ counsel, Mr. SULLIVAN :
X (). 145. Where did you first see tls model marked ‘“ Gom-
plainant’s Exhibit Model Meinhard’s Apparatus ” ?
Complainant’s counsel objected as immaterial.
A. I saw it at Mr. Magin’s.
X Q. 146. When?
A. When he first got it, [wuess; when it was first made.
X Q. 147. How long ago was that ?
A. IL don't remember; it might have been three or four months
or longer.
X Q. 1485. Who showed it to you?
A. Mr. Magin.
79 XQ. 140. Was it in Mr. Magin’s saloon ?
A. No, sir.
X Q. 150. Where was it ?
A. Upstairs.
US
-
IS
we | e&
MICHAEL MAGIN VS. JOHN H. LEHMAN.
X Q. 151. Who was with you on that occasion ?
A. Nobody.
X Q. 152. You went there alone?
A. Yes, sir.
X Q. 153. At whose request did you go there?
A. I didn’t go there at anybody’s request. I went there to get a
: glass of beer.
X Q. 154. What did he tell you about this model ?
A. He told me he had a model made.
X Q. 155. Did he tell you what for ?,
A. No, sIr.
X Q. 156. Did he tell you who made it ?
A. No, sir.
X Q. 157. What did he say about the model ?
A. He asked me if that was a correct model and I told him yes.
X Q. 158. Did he tell you who made it ?
A. No, sir.
X Q. 159. Did he explain it to you?
A. No,sir.
X Q. 160. How long did you spend in examining it on that ocea-
sion ?
A. Probably five minutes.
X Q. 161. And where next did you see the model after that ?
76 A. Yesterday, I think it was.
X Q. 163. Who showed it to you?
A. Mr. Selden and Mr. Bennett.
X Q. 164. Did they explain it to you ?
A. No, sir.
X Q. 165. What did they sav about it?
A. They asked me what I thought about it and I told them I
thought it was a correct model.
X Q. 166. Was Mr. Magin also present ?
A. Yes, sir; he was here.
X Q. 167. You came here with Mr. Magin, did you?
A. No, sir.
X Q. 168. Did you come alone?
A. Yes, sir.
X Q. 169. What time of day was it?
A. In the afternoon.
X Q. 170. About what time ?
A. Probably four o’clock.
X Q. 171. Are you certain Mr. Bennett was present ?
A. Yes, sir—no; it wasn’t yesterday; it was day before yesterday,
I think it was.
X Q. 172. Are you certain it was day before yesterday ?
A. Yes, sir.
X Q. 175. And was Mr. Bennett then present ?
A. Yes, sir.
X Q. 174. At whose request did you come here day before yester-
day? | |
77 A. Mr. Bennett’s.
MICHAEL MAGIN Vs. JOHN J. KARLE AND
X Q. 175. Who else?
A. And Mr. Magin.
X Q. 176. When did they request you to come here?
A. Dav before yesterday.
X Q. 177. Where?
A. Up here.
X Q. 178. Where did you see them when they asked you to come
here?
@. At the Powers hotel.
X Q. 179. You had an appointment to meet them there, did you ?
A. No, sir.
X Q. 180. How did you meet them at Powers’ hotel ?
A. Because he was stopping there. [ went there with Mr. Magin.
X Q. 151. You went to Powers’ hotel with Mr. Magin to meet Mr.
Bennett ?
A. Yes, sir.
X Q. 182. And then you had the conversation in the hotel, did
you ?
A. No, sir; I had it here.
XQ. 185. Then you came to Mr. Selden’s office ?
A. Yes, sir.
X Q. 184. What time in the day was that?
A. In the afternoon.
XQ. 185. And that was the time you saw this model again ?
78 A. Yes, sir.
X Q. 156. Who was present besides Mr. Magin and Mr.
Selden and Mr. Bennett on that occasion ?
A. Nobody.
X Q. 187. How long did you remain at that time ?
A. Probably fifteen minutes.
X Q. 18S. Did you go away with Mr. Magin ?
A. No, sir,
X Q. 189. Did you go away alone?
A. Yes, sir.
XQ. 190. Who first spoke to you about this Meinhard appa-
ratus ”
A. When I first got in with it at all.
XQ. 191. Mr. Schantz ?
XQ. 192. Who is he?
A. He works down here in a clothing store.
X Q. 193. Is that Otto Schantz ?
A. Yes, sir.
X Q. 194. What did he say about it.
A. He came to the shop after me and asked me if I remembered
Meinhard’s apparatus and [ told him ves.
XQ. 195. What else did he say ?
A. He asked me if I would come down to Mr. Magin’s at dinner
time and I told him ves,
X Q. 196. And you did so, didn’t you ?
A. Yes, sir.
\vY
MICHAEL MAGIN VS. JOHN H. LEHMAN. ‘39
X Q. 197. And have a talk with Mr. Magin ?
A. Not much of anything.
79 X Q. 198. What did you and Mr. Magin have to say?
A. I went up to Powers’ block and told there what I knew
about it.
X Q. 199. After having a talk with Mr. Magin in his saloon you
went with him up to Powers’ block ?
A. I didn’t have a talk with him.
X Q. 200. After going to his saloon you went with him from there
to Powers’ block ?
A. Yes, sir.
X Q. 201. And what did vou do at Powers’ block ?
A. I made an affidavit of what I knew.
X Q. 202. Who went with you to Powers’ block ?
A. Mr. Magin.
X Q. 203. Anybody else?
A. No, sir.
X Q. 204. Mr. Schantz didn’t go with you, then?
A. No, sir.
X Q. 205. Mr. Schantz simply went with you from your shop to
Mr. Magin’s ?
A. Yes, sir.
X Q. 206. And did he remain there ?
A. I guess not; I didn’t see him after that.
X Q. 207. And you went directly from Magin’s saloon to Powers
block ?
A. Yes, sir.
X Q. 208. Was that before dinner ?
80 A. Just before dinner; about half past eleven.
X Q. 209. While in Magin’s saloon, what did Mr. Schantz
have to say about this Meinhbard apparatus?
’
Complainant’s counsel objected.
A. He had nothing to say and only if [remembered the apparatus
and went right up there.
X Q. 210. What did Schantz say ?
A. Nothing.
X Q. 211. W hat did he say when he went in there with you ?
A. He told Magin that I was Raymond Stief and that I remem-
bered the apparatus.
X Q. 212. Was that the first talk vou had with Schantz about this
apparatus?
A. Yes, sir.
X Q. 213. And that talk was had in your shop ?
A. No, sir; right across the way, into Karle’s saloon. We went
there.
X Q. 214. That is Karle’s on South St. Paul street ?
A. Yes, sir.
X Q. 215. And from Karle’s you went to Magin’s ?
A. Yes, sir.
X Q. 216. And while in Karle’s did you have some beer to drink ?
A ART ECORI
40) MICHAEL MAGIN VS. JOHN J. KARLE AND
A. Yes, sir.
X Q. 217. How long did you remain in Mr. Karle’s ?
81 A. Just long enough to drink a glass of veer.
X Q. 218. Did you sit down ?
A. No, sir.
X Q. 219. What did Mr. Schantz first say to you about this ap-
paratus ?
A. He asked me if I remembered the apparatus that Meinhard
had for drawing beer, and I told him = yes, and he asked me if I
would go up to Mr. Magin’s when [ went to dinner, and [ told him
I would, and he and I walked down there together and went to
Magin’s and had a glass of beer there and went to Powers’ block.
X Q. 220. Who suggested vour going to Karle’s?
A. Mr. Schantz, as lie came to my shop.
X Q. 221. He waited for you until you got ready and went out?
A. Yes, sir.
X Q. 222. Was it exactly twelve o’clock ?
A. No, Sr; about eleven o’¢clock.
X Q. 223. Did Mr. Schantz tell you anything about this ap-
paratus ?
A. No, sir.
X Q. 224. What did he say about it?
A. He didn’t say nothing.
X Q. 225. He didn’t say anything ?
A. No, sir.
X Q. 226. What did you say about this apparatus while in Karle’s
saloon ?
A. He didn't say anything. I told him I remembered it.
82 X Q. 227. And that was all was said about it? '
A. Yes, sir.
X Q. 228. Didn't deseribe it to him ?
A, No, sir,
X Q. 229. Didn’t ask you to describe it?
A. No, sir.
XQ. 280. Did he describe it to you ?
A. No, sir.
X Q. 231. Nothing said about it?
A. No, sir; nothing at all.
X Q.252. Except that he asked you if you remembered the ap-
paratus and you told him you did?
A. Yes, sir.
X Q. 255. And you went from there to Magin’s?
A. Yes, sir.
XQ. 254. And Mr. Schantz introduced you to Mr. Magin ?
A. Yes, sir. Come to think, Mr. Schentz didn’t go with me. I
went to the shop and worked half an hour, and then went to Mr.
Magin’s snloon.
X Q.235. And Mr. Schantz asked you to go there?
A. Yes, srr.
X Q. 236. And had a talk with Mr. Magin ?
A. No, sir.
Phat oo aR Yad pet coe
MICHAEL MAGIN VS. JOHN H. LEHMAN. 41
X Q. 237. When you first went into Mr. Magin’s saloon what did
you say ?
83 A. Mr. Schantz told him I was Raymond Stief and asked
me to have a glass of beer, and asked me if I remembered it
and I told him yes.
X Q. 238. When did Mr. Schantz tell him you were Raymond
Stief ?
A. That same afternoon.
X Q. 239. Did Mr. Schantz tell you that he told Mr. Magin that
you were Raymond Stief ?
A. He told him right there and I heard him.
X Q. 240. When was that ?
A. That sume afternoon.
X Q. 241. I thought you said Mr. Schantz didn’t go with you?
A. I did; that was after I got to his saloon.
X Q. 242. Then you had an appointment with him to meet you
at Mr. Magin’s saloon ?
A. Yes, sir.
X Q. 243. And Mr. Schantz didn’t go with you from Mr. Karle’s
to Mr. Magin’s saloon ?
A. No, sir.
X Q. 244. And what was the next thing Mr. Schantz said to you
after you got in there?
A. I don’t remember as he said anything.
X Q. 245. What did you first say to Mr. Magin ?
A. I didn’t say nothing to him.
X Q. 246. Did Mr. Magin tell you why he sent for you ?
A. No, sir; I don’t think he sent for me.
X Q. 247. Didn’t Mr. Schantz tell Mr. Magin why you came
there?
84 A. Not while I was there.
X Q. 248. And then, without saying anything in Mr. Ma-
gin’s saloon, you came to Powers’ block ?
A. Yes, sir.
X Q. 249. And there you made an affidavit?
A. Yes, sir.
X Q. 250. Do you know before whom you made this affidavit?
A. Yes, sir.
X Q. 251. Who was it?
A. Mr. Cronise, I think his name is.
X Q. 252. Was he Mr. Magin’s attorney ?
A. | don’t know.
X Q. 253. Was the affidavit ready for you to sign when you got
there?
A. No, sir.
X Q. 254. Who drew the affidavit?
A. Mr. Cronise.
X Q. 255. Did you see him draw it?
A. Yes, sir.
X Q. 256. How long did it take?
A. Over half an hour or more.
6—323
Ne ee OBESE ABI ~
MICHAEL MAGIN VS. JOHN J. KARLE AND
X Q. 207. Who was with you during that time?
A. Mr. Magin.
X QQ. 258. Any one else ?
A. No, sir.
X Q. 259. Where did you leave Mr. Schantz ?
A. He was in Mr. Magin’s when we left there; he was going to
dinner.
85 X Q. 260. He went from there to dinner, did he?
A. I suppose he did.
X Q. 261. But you had your dinner at this time?
A. No, sir.
X Q. 262. You didn’t have your dinner at this time ?
A. No, sir.
X Q. 263. Didn’t you testify a moment ago that you returned to
your work after dinner and worked for half an hour and then went
down there?
A. No, sir.
X Q. 264. Then you went without your dinner on this day ?
A. Yes, sir.
X Q. 265. Why did you do that?
A. It was too late for dinner.
X Q. 266. Why was it?
A. Because I couldn’t get back in time to go to the shop.
X Q. 267. What time did you have to return to the shop ?
A. About one or half past one.
X Q. 263. What time did you return there on this day ?
A. About one o'clock.
X Q. 269. Did you return to the shop after leaving Mr. Cronise’s
office ?
A. Yes, sir.
86 X Q. 270. And you got to Mr. Magin’s saloon about what
time?
A. ong twelve o'clock.
X Q. 271. Then it took vou about an hour to go from Mr. Magin’s
saloon to j Athen block and make this affidavit and back to the
shop?
A. Yes, sir.
X Q. 272. Was this affidavit prepared with a typewriter or was it
written out?
A. Written out.
X Q. 273. Do vou know in whose handwriting it was ?
A. No, sir. Who wrote the aitidavit do you mean ?
X Q. 274. Yes.
A. Mr. Cronise.
X Q. 275. Was there a copy of it made while you were there ?
+ Not that I know of.
X Q. <a After the affidavit was prepared you signed it there,
did you?
A. +o, sir.
X Q. 277. And in Mr. Cronise’s office ?
A. Yes, sir.
MICHAEL MAGIN Vs. JOHN H. LEHMAN. 43
X Q. 278. And before Mr. Cronise?
A. Yes, sir.
X Q. 279. You are certain you didn’t go out of the office after
Mr. Cronise prepared the affidavit before you signed it?
A. No, sir.
87 X Q. 280. You went directly from Cronise’s office to your
shop?
A. I did.
X Q. 281. And Mr. Magin was there during all that time?
A. Yes, sir.
X Q. 282. Did they have this model, “Complainant’s Exhibit
Meinhard Apparatus,” there at that time?
A. No, sir.
X Q. 283. You made two affidavits in the case of Magin vs. Wel-
ker, didn’t you?
A. I don’t remember.
X Q. 284. Don’t you recollect that you made more than one affi-
davit?
A. No, sir; I do not.
X Q. 285. You think you are certain the first time you saw this
model, “Complainant’s Exhibit Meinhard Apparatus,” was tn Mr.
Magin’s saloon ?
A. Not in the saloon—upstairs.
X Q. 286. And then you next saw it in Mr. Selden’s office a
couple of days ago ?
A. Yes, sir.
X Q. 287. When did you first hear of this litigation about the
Meinhard appari atus?
A. I don’t know what you mean by litigation.
X Q. 288. This lawsuit.
A. When did [ first hear this?
X Q. 289. Yes.
A. ‘The first time I heard of it was after I was up there and made
my a
88 X Q. 290. Had you spoken to any person about it befora
you made that affidavit ?
A. No, sir.
X Q. 291. Had you spoken to Mr. Meinhard about it ?
A. No, sir.
X Q. 292. Had Mr. Meinhard spoken to you about it?
A. He tried to, but I never went to see him.
X Q 293. But you had spoken to Mr. Schantz before you made
your affidavit?
A. ~ sir.
X Q. 294. Didn’t you say Mr. Schantz went to your shop and had
you come from there over to Mr. Magin’s?
A. Yes, sir; but he never spoke anything about it.
X Q. 295. What did he s say he wanted you tq come to Magin’s
for?
A. He didn’t say.
+ rwemnene
Soe
Bp oat i ,
44 MICHAEL MAGIN VS. JOHN J. KARLE AND
X Q. 296. Didn’t you say a moment ago that he asked you if you
remembered the Meinhard apparatus ?
A. Yes, sir; and that was all he said.
X Q.—. What did he say ?
A. He asked if I remembered the apparatus Meinhard bad and
I told him yes, and that was all that was said, and he asked me if [
would go to Magin’s when I was going to dinner.
X Q. 298. While in Mr. Magin’s saloon did he have anything to
say about this apparatus ?
A. No, sir.
89 X Q. 299. You say Mr. Meinhard wanted to talk with you
about it, but you wouldn’t talk with him ?
A. He told my brother for me to drop into his place; that he
wanted to see me.
X Q. 300. But you never went there?
A. No, sir.
X Q. 301. How long have you known Mr. Meinhard ?
A. Ever since I first came to Rochester and he started to run that
place over there.
X Q. 302. When was that ?
A. I don’t remember; probably 1876.
X Q. 303. You didn’t commence working for him when he first
started business there?
A. No, sir.
X Q. 304. You did commence working for him in 1877, you say?
A. Yes, sir.
X Q. 305. How old were you in 1877 ?
A. ‘Twenty-one years or twenty.
X Q. 306. How old are you now ?
A. ‘Twenty-seven.
X Q. 307. Are you certain you were twenty in 1877?
A. Yes, sir.
X Q. 308. You said you were a shoemaker by trade, I believe ?
A. Yes, sir.
X Q. 309. Were you working at your trade at that time, in
1877?
90 A. No, sir.
X Q. 310. When did you commence working at your
trade?
A. The latter part of 1879.
X Q. 311. Who did you begin working for?
B. Boor & Co.
X Q. 312. Where did you learn vour trade ?
A. On River street, with Boer & Co.
XQ. 313. Were you learning your trade in the year 1877 or
1878?
A. I went there to learn it. I was working around the place
there.
X Q. 314. With Boor & Co.?
A. Yes, sir.
gg Peart
3
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PO SOO Genk ee NaI AEs be 4 sb J
MICHAEL MAGIN VS. JOHN H. LEHMAN. 45
X Q. 315. You were an apprentice for two or three years before
you became a regular shoemaker, were you ?
A. About a year.
X Q. 316. What year was that?
A. Probablv 1880 or after 1880.
X Q. 317. Did you work eat the shoe business any while you were
working for Mr. Meinhard ?
A. No, sir.
X Q. 318. You commenced working at the shoe business after you
left Mr. Meinhard, did you ?
A. Yes, sir. :
X Q. 319. Are you a brother of Albert Stief?
A. Yes, sir.
91 X Q. 320. What has been his business for the last six or
eight or ten years?
A. Tending bar.
X Q. 321. He is a bartender, then, by occupation, is he?
A. Yes, sir.
X Q. 322. Did he work for Mr. Meinhard while you did?
A. Sundays; yes, sir. I worked there Sundays while he worked
there steady.
X Q. 323. He gave most of his time to tending bar, did he?
A. For one time he did there; while he was waiter boy he was.
X Q. 324. When was that?
A. I don’t remember; he was a machinist.
X Q. 325. Was that while he was working for Gilbert & Mein-
hard that he gave his whole time to being a waiter boy or tending
bar while working for Meinhard ?
A. Yes, sir.
X Q. 326. How long did your brother work for Mr. Meinhard ?
A. I don’t know how long he did work.
X Q. 327. About how long?
A. I couldn’t say; probably he worked there a yearand probably
didn’t.
X Q. 328. Did he work there more than a year ?
A. I don’t know.
X Q.329. Off and on, for how many years did he work there ?
92 A. It might have been a couple of years.
X Q. 330. What years were those ? .
A. 1876, probably.
X Q. 331. Commenced working in 1876?
A. I couldn’t say; I can’t tell the year.
X Q. 332. Was he working there when you went to work for
Gilbert & Meinhard?
A. Yes,sir.
X Q. 333. What was he doing there at that time?
A. He was tending bar there.
X Q. 334. When you first commenced working for Meinhard it
was as waiter boy ?
A. Yes,sir.
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46
J. KARLE AND
MICHAEL MAGIN VS. JOHN
X Q. 335. And after working for him a couple of years as waiter
boy you say you acted as bartender for awhile?
A. Yes, sir.
X Q. 336. When did your brother quit working for Meinhard ?
A. I don’t remember. I think he guit work when I went to work
there.
X Q. 337. Didn’t he work there after you quit working ?
A. No, sir,
X Q. 338. When did you quit working for Mr. Meinhard ?
A. In 1879.
X Q. 339. And you worked for Mr. Meinhard after your brother
quit working for him?
A. Yes, sir.
X Q. 340. Who was Mr. Meinhard’s regular bartender
while you were working there ?
A. He had no regular bartender. We all used to tend bar.
was three of us.
X Q. 341. Who were they ?
Hf A. Mr. Pfefflin, Felix Guenther, and myself.
ik X Q. 342. Did Mr. Guenther have charge of the bar?
1 A. Yes, sir; he used to open up in the morning.
: X Q. 343. He was, then, what was called the head bartender ?
Hi A. There was no head bartender there.
X Q. 544. Was he some older than you?
A. Yes, sir.
X Q. 345. How old a person was Mr. Guenther at that time ?
A. He might have been thirty-five years old.
X Q. 346. Ile wasn’t one of the waiter boys in the garden, then ?
A. No, sir.
X Q. 347. Tow many waiter bovs did they have in this garden
while you were working for Mr. Meinhard ?
A. They had eight or ten, and sometimes twelve and more.
X Q. 548. The garden was open on week days as well as Sundays ?
A. It was, if any one wanted to go in. There wasn’t anything
going on.
X Q. 349. Sunday was the principal day there ?
A. Yes. sir; unless it was rented.
X Q. 3090. And when you first commenced working for
Mr. Meinhard vou worked chiefly in this garden, did you ?
A. Yes, sir.
X Q. 351. Who had charge of the garden ?
A. Nobody, only the proprietors.
X Q. 352. Mr. Gilbert and Mr. Meinhard ?
A. Yes, sir.
X Q. 353. Was Mr. Meinhard the active man of the firm, looking
93
There
O4
VIO,
after the management of the business ?
A. Yes, sir.
X Q. —. Mr. Gilbert spent most of his time in the saloon, did he
not?
A. During the day generally.
X Q. 356. Mr. Gilbert isa much stouter man than Mr. Meinhard ?
MICHAEL MAGIN VS. JOHN H. LEHMAN. 47
A. Yes, sir.
X. Q. 356. He didn’t have much to do about the management of
the business, did he?
A. No, sir.
X Q. 357. What was Mr. Gilbert’s business ?
A. Clothing cutter.
X Q. 358. He is now engaged in that business, isn’t he ?
A. Yes, sir.
X Q. 359. And while you worked for them didn’t Mr. Gilbert de-
vote most of his time while in the saloon to entertaining the cus-
tomers and drinking with them ?
95 A. Yes, sir; he was around there all the while.
X Q. 360. He didn’t have much to do about the bar, did he ?
A. During the day.
X Q. 361. Did be act as bartender ?
A. Yes, sir.
X Q. 362. Steadily ?
A. Off and on, just as he felt like it.
X Q. 363. But his business wasn’t that of a bartender, was it?
A. No, sir.
X Q. 364. Where is Mr. Guenther now, if you know?
A. I couldn't say.
X Q. 365. Did you know Mr. Fred. Gutacher ?
A. Yes, sir.
X Q. 366. -What was his business about there ?
A. I don’t know as he had any business about there.
XQ. 367. What did he do about there ?
A. I only saw him around the bar once in awhile when there
Was a picnic or something.
X Q. 368. Do vou know who put this apparatus in for Mr. Mein-
hard ?
A. No, sir.
X Q. 369. You didn’t see who put it in, then?
A. No, sir.
X Q. 370. Was it there when you commenced working for Mr.
Meinhard ?
A. Yes, sir.
96 X Q. 371. Were there any changes made in it while you
worked there ? ‘:
A. No, sir.
X Q. 372. There was also a large ice box upstairs in this saloon ?
A. Yes, sir.
X Q. 373. Was that there also when you commenced working for
them ?
A. Yes, sir.
X Q. 374. And it remained there while you worked there ?
A. Yes, sir.
X Q. 375. Do vou know Mr. Barr?
A. Yes, sir.
X Q. 376. Did you see him about there at any time making re-
pairs on this apparatus?
48 MICHAEL MAGIN Vs. JOHN J. KARLE AND
A. No, sir.
X Q. 377. Do you know Mr. Adolph Cassebeer ?
A. I know him by sight.
X Q.'378. Do you know his business ?
A. Plumber, l believe.
X Q. B79. Did you see him there at any time making repairs on
this apparatus ?
A. No, sir.
X Q. 380. Do you know Mr. Schaub ?
A. No, sir.
XQ. 381. You have heard about Mr. Schaub, have you ?
A. No, sir.
X Q. 382. What is your business now?
97 A. Shoemaker.
X Q. 585. Who are you working for?
A. Bolton.
X Q. 384. Do you visit Mr. Magin’s saloon occasionally ?
A. Not very often.
X Q. 385. How often ?
A. I may go by that way once a month and go in there.
X (). 356. Where do vou live?
A. On Galusha street.
X @. 587. Is Mr. Magin’s saloon near Bolton’s shop ?
A. Yes, SIT.
X Q. 388. Tlow near it ?
A. On the opposite corner.
X Q.389. It is quite a resort for those shoemakers and people
emploved in that vicinity, ts it not?
A. I don’t know as itis. They seem to be around the different
places all the while. [don’t know whether bis place is or not.
X Q. 3890. Is his place more frequented than Mr. Schwartz’s ?
A. I don’t know hiin.
XQ. 391. Who keeps a saloon on the corner west of Mr. Magin’s?
A. I don’t know the man’s name.
XQ. 302. Ile keeps opposite Mr. Magin, does he not ?
A. Yes, sir.
98 XQ. 204. Phere is a saloon on the corner west of Mr.
Magin, is there not?
A. Yes, sir.
X Q. 395. You don’t know who keeps it?
A. I do not.
X Q. 506. Tow often has Mr. Magin spoken to you about this ap-
paratus of his ?
A. He hasn't spoken to me at all about it.
XQ. 597. He never spoke to vou about it?
A. No, sir.
X Q 398. Ilas Mr. Gordon ever spoken to you about it?
A. No, sir.
X Q. 399. Do you know him?
A. Yes, sir.
X Q. v00. Where did you first see him ?
— ow
. ah. Rea?
Sars ek
MICHAEL MAGIN VS. JOHN WH. LEHMAN. 49
A. IT have known him a good many years.
X Q. 401. Have vou seen him in Mr. Magin’s saloon ?
A. Yes, sir. “-
X Q. 402. When ?
A. Quite awhile ago; I don’t know when.
X Q. 403. Has he ever spoken to you about this apparatus?
A. No, sir.
X Q. 404. Ever said anything to you about it?
A. No, sir.
X Q. 405. Have you ever spoken ¢o him about anything?
A. No, sir.
99 X Q. 406. You say when you commenced working for Mr.
Meizhard he had this apparatus in his saloon ?
A. Yes, sir.
X Q. 407. And it was there when you left, was it ?
A. It was.
X Q. 408. And he continued to use it during that time?
A. Yes, sir.
X Q. 409. And he was using it when you left?
A. Yes, sir.
X Q. 410. Was the beer which was used in the summer garden
taken from the cellar?
A. Yes, sir.
X Q. 411. Or was it rolled in from the delivery wagon ?
A. It was taken from the cellar.
X Q. 412. They would first store it in the cellar and then bring
it out of the cellar into the garden, would they ?
A. Yes, sir.
X Q. 413. And were you in the habit of bringing up those kegs?
A. Sometimes.
X Q. 414. Who assisted you ?
A. Mr. Guenther and anybody that happened to be around.
X Q. 415. One young man couldn’t bring them up alone ?
A. Not very well.
100 X Q. 416. Whereabouts in the cellar were those kegs of
beer located ?
A. In the large ice box.
X Q. 417. Not in the wine cellar, then ?
A. No, sir.
X Q. 418. So that in getting beer out of the cellar you didn’t
have occasion to go into the wine-room ?
A. No, sir.
X Q. 419. Was there much wine drank in the beer garden ?
A. Yes, sir; a good deal of it.
X Q. 420. When a bottle of wine was ordered who would bring
it up from the cellar?
A. We would fetch up enough at one time until it run out and
go down and get some more.
X Q. 421. Bring up a quantity and place it behind the bar ?
A. Yes, sir.
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50 MICHAEL MAGIN Ys. JOHN J. KARLE AND
X Q. 422. And when a bottle of wine was ordered you would go
to the bar and get it?
A. Yes, sir.
X Q. 423. Who kept the key to the wine cellar ?
A. Back of the bar, in the bar-room.
X Q. 424. The waiter boys were uot allowed to take that wine
key, were they ?
A. Not allowed to take it unless they were asked by some one to
go down and help them.
X Q. 425. Mr. Meinhard or Mr. Gilbert, I suppose, had charge of
the wine key ?
A. Not necessarily.
101 X Q. 426. Or the bartender ?
A. Yes, sir.
X Q. 427. This wine cellar was kept locked, wasn’t it ?
A. Yes, sir.
X Q. 425. Were there more keys than one to the wine cellar ?
A. No, SIP.
X Q. 420. What else did they keep in the wine cellar besides
wine?
A. Kept cider and different kinds of wine, and that was about
all.
X Q. 450. Kept a quantity of wine stored there, did they ?
A. Yes, sir.
X Q. 431. And some good brands of wine, didn't they ?
A. Yes, sir; and liquors and such things ?
X Q. 452. Liquors of different kinds ?
A. Yes, sir.
X Q. 433. And brandies ?
A. Yes, sir.
X Q. 484. And gin ?
A. Yes, sir.
X Q. 455. Whisky and, in fact, all kinds of liquors?
A. Yes, sir.
X Q. 436. And port and sherry wine ?
A. Yes, sir.
XN Q. 437. What length, east and west, was the wine cellar ?
102 A. L never measured it; it might be fifteen or twenty feet.
XN Q. 458. And what was the length, east and west, of this
lower ice box ?
A. Probably eight feet.
X Q. 439. And what was the height.
A. It might have been eight feet, too.
X Q. 440. Was the cellar eight feet in height ?
A. [T suippose it was; ves, sir, It was as high as the ice box; it
was built from the floor to the eeiling.
X Q. 441. Did you ever measure the height of the cellar?
A. No, sir. ;
X Q. 442. Was that bex originally constructed for an ice box ?
A. Yes, sir.
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MICHAEL MAGIN VS. JOHN H, LEHMAN. 51
X Q. 443. But it was considerably larger than the ordinary ice
box, wasn’t it?
A. [ never have seen another ice box.
X Q. 444. This is the only ice box you have ever seen, then?
A. Yes, sir.
X Q. 445. And this lower ice box stood up against the south wall
of the cellar?
A. Yes, sir.
XQ. 446. Did it extend from the ceiling to the floor ?
A. Yes, sir.
X Q. 447. Anything between the ceiling and the top of the ice
box?
._ A. No, sir.
103 X Q. 448. Did you ever examine that part of it?
A. Yes, sir.
X Q. 449. What was the oceasion of your examining it?
A. Because there was a pair of stairs run up by that ice box that
came from upstairs, and I go up those stairs and could get up to
the top of it. The stairs were never used, but [ got to the top of it
lots of times, and used to put candles and things on the stairs.
X Q. 450. Did these stairs come down from the saloon ?
A. Yes, sir.
X Q. 451. In going out of the saloon into the cellar in what di-
rection would vou go?
A. Igo west. _
X Q. 452. You would go west first ?
A. Yes, sir; and then down south—down the stairs—and then
turn east into the cellar.
X Q. 453. And when you landed in the cellar you landed in frout
of the large ice box ?
A. Yes, sir.
X Q. 454. Was there a door in this large ice box ?
A. Yes, sir.
X Q. 455. And what part of the ice box was it?
A. The front of the ice box.
X Q. 456. And about the middle of it?
A. About in the middle of the ice box.
104 X Q. 457. In going into the lower ice box to get a keg of
beer you wouldn’t have occasion to go past the wine-room,
then?
A. No, sir.
X Q. 458. Was there also a door in the wine-room ?
A. Yes, sir.
X Q. 459. Whereabouts in the wine room was the door ?
A. It was right a little bevond the ice box.
X Q. 460. Was the gas jet which you claim was there east or west
of that door ?
A. It was west.
X Q. 461. How far west of that door was it ?
A. Probably a foot or so.
X Q. 462. And which way did the door swing?
MICHAEL MAGIN VS. JOHN J. KARLE AND
A. Swung to the west ?
X Q. 463. Did you ever light that gas jet?
A. I have lit it.
X Q. 464. How often ?
A. Not very often.
X Q. 465. How often would you say ?
A. I wouldn’t have oceasion to turn it out at all sometimes. I
would light it sometimes.
X Q. 466. Did you have any difficulty in reaching it?
A. No, sir.
X Q. 467. Would you light 1t by a match ?
A. Yes, sir.
105 X Q. 468. How large was the door in the ice box ?
A. I couldn’t say ; probably five feet.
X Q. 469. In height, do you mean?
A. Yes, sir.
X Q. 470. What was the width of it?
A. Probably two feet and a half, or somewheres along there.
X Q. 471. How large was the door in the wine cellar ?
A. I never measured it.
X Q. 472. About how large would you say it was ?
A. Probably six feet high.
X Q. 473. And how wide?
A. Probably two feet.
X Q. 474. It extended nearly to the top, then ?
A. Pretty near.
X Q. 475. Was it a heavy or light door?
A. Light.
X Q. 476. What was it made of ?
A. Slabs.
X Q. 477. The same kind of an opening as the cellar itself, I sup-
"
. Did you notice any gas or water pipes in this cellar?
A. Yes, sir.
x Q. 479. Whereabouts did they run ?
106 A. The gas pipes—there was only one, the jet at the wine
cellar. The water pipe was up a little from the ice box, by
the wall, fastened there.
X Q. 480. Fastened to the ceiling ?
A. No, sir; came down the side ‘of the wall.
X Q. 481. Did the water pipe come down alongside of the
wall? :
A. Yes, sir. |
X Q. 482. And ran along the ceiling whatever was necessary, I
suppose ?
A. Yes, sir.
X Q. 483. Did the gas pipe run the same way ?
A. Yes, sir.
=—% Q. 484. The gas and water pipes were near each other, were
they ?
3 nite 8
MICHAEL MAGIN VS. JOHN H. LEHMAN. 53
No, sir.
Q. 485. How far apart were they ?
. Half the length of the cellar, probably.
Q.4 486. How many water pipes were they ?
. Only one.
Q. 487. Were there any other pipes besides gas pipes and water
s? R
A. And beer pipes.
X Q. 488. And what other kind « pipes ?
A. That is ali that I know of.
X Q. 489. And they were all oui: near each other, were they ?
A. The beer and gas pipes were.
X Q. 490. In going down cellar for a keg of beer you would have
to take a light with you, would you 7”
107 A. Yes, sir.
X Q. 491. Candle, usually ?
A. Yes, sir.
X Q. 492. Did they keep a candle down cellar for that purpose ?
A. Yes, sir.
X Q. 493. Would you take the candle down lighted or light it
when you got down there ?
A. Light it wnen we got down there.
X Q. 494. How many candles did they have there?
A. One or two around there.
X Q. 495. It was quite dark inside the lower ice box, I sup-
pose?
A. Yes, sir.
X Q. 496. How many kegs did they usually keep tapped there ?
A. Two.
X Q. 497. And how many kegs would they keep stored ?
A. As high as thirty or forty.
X Q. 498. Mr. Meinhard, whiJe you worked for him he done a
pretty large business, didn’t he ?
A. Yes, sir.
X Q. 499. Heikept what was called Falls Field ?
A. Yes, sir.
X Q. 500. And at that time it was a very popular place, wasn’t
it?
A. Yes, sir.
X Q. 501. Did he do the largest business in the city at that
time?
108 A. I couldn’t say whether he did or not.
X Q. 502. Was he not so considered ?
A. I don’t know as he was, taking the week through. He didn’t
do very much during the week.
X Q. 503. But on Sundays he did a very large business ?
A. Yes, sir.
X Q. 504. From where did Mr. Meinhard buy his beer while vou
worked there ?
A. He bought it from several breweries.
o4 MICHAEL MAGIN Vs. JOHN J. KARLE AND
X Q. 505. While you worked for Mr. Meinhard how often did you
go into this wine cellar?
A. Four or five times a day sometimes. I went in there once or
twice a day regularly.
X Q. 506. Did the other boys go in as often as you or oftener?
A. About the same.
_X Q. 507. Were all the waiter boys in the habit of going to this
wine cellar?
A. No, sir.
X Q. 508. It was only those who tended bar that went in there ?
A. Yes, sir.
X Q. 509. And during the time you tended bar you used to go
into the wine cellar frequently ?
A. Yes, sir.
X Q. 510. As often as four or five times a day ?
A. Sometimes.
109 X Q. 511. Wasn’t it the custom in the bar to keep a few
bottles of wine in the saloon ?
A. Yes, sir.
‘XQ. 512. For the day’s use?
A. Yes, sir.
X Q. 513. What time in 1877 did you begin working for Mr.
Meinhard ?
A. In the spring of the year.
X Q. 514. And you continued working for him as waiter boy
until what time in 1879?
A. In the spring.
XQ. 515. And then you quit for awhile, and then you com-
menced working again for him?
A. No, sir; [didn’t quit.
X Q. 516. You continued working for him right along from the
time you commenced ?
A, Yes, sir.
X Q. 517. And some time in 1879 you commenced working in
the bar for him?
A. Yes, sir.
X Q. 518. And after vou commenced working in the bar did you
also work for him in the garden ?
A. I used to work back of the bar in the garden then.
X Q. 519. They also had a bar in the garden, did they ?
A. In the large hall.
X Q. 520. That wasn’t the saloon, then ?
A. No, sr.
110 X Q. 521. So that you were his bartender in what you call
the hall?
A. No, sir; in the saloon.
X Q.522. And you were also a bartender in the hall?
A. Yes, sir.
X Q. 623. While you were his bartender in the saloon did you
also wait on customers In the garden ?
A. No, sir.
MICHAEL MAGIN VS. JOHN H. LEHMAN.
X Q. 524. How was it on Sundays?
A. Used to work in the saloon until Sunday evenings and then
would go back of the bar in tie hall?
X Q. 525. They didn’t have much trade in the saloon on Sun-—
days?
A. They had quite a good deal of it.
X Q. 526. But when the concerts commenced Sunday evenings
they required your assistance there?
A. They closed up the saloon then.
X Q. 527. When did they open the concert hall on Sundays ?
A. At seven o'clock.
X Q. 528. Seven o’clock Sunday nights?
A. Yes, sir.
X Q. 529. And was the saloon kept open on Sunday up to that
time?
A. Yes, sir.
X Q. 530. Did you tend bar in the saloon on Sunday ?
11] A. Yes, sir.
X Q. 531. Did you have an assistant during that time ?
A. Yes, sir.
X Q. 532. Who was the assistant ?
A. Mr. Guenther.
X Q. 533. Did you ever assist your brother in the saloon ?
A. No, sir.
X Q. 534. You worked there while he did, didn’t you ?
A. Yes, sir.
X Q. 535. How long, east and west, was this cellar under Mein-
hard’s saloon ?
A. I don’t know; it might have been, probably, 25 feet.
X Q. 5386. What was the distance between the west end of this
ice box and the west end of the cellar?
A. There wasn’t any space there at all, and was right in the
corner.
X Q. 537. The large ice box, then, extended to the west cellar wall
of the cellar?
A. Yes, sir.
X Q. 538. And did this large ice box and wine cellar occupy the
whole space between the west cellar wall and the front cellar wall?
A. No, sir.
X Q. 539. Then the wine cellar did not extend to the east cellar
wall ?
A. No, sir.
112 X Q. 540. Howsuch of a space was there ?
A. Probably four or five feet.
X Q. 541. What was kept in that space?
A. A gas meter.
X Q. 542. Anything else kept there?
A. That is all I know of.
X Q. 543. What became of the ice water in the lower ice box ?
A. We used to clean it out once or twice a week. That is all I
ever saw become of it. |
56 MICHAEL MAGIN VS. JOHN J. KARLE AND
X Q. 544. When the ice melted in the lowerice box what became
of the water?
A. I don’t know.
X Q. 545. Did it run away ?
A. No, sir; I never saw any place for it to run away.
X Q. 546. Did they have a sewer there?
A. No, sir.
X Q. 547. They kept a large quantity of ice there, didn’t they ?
A. Had it filled with whatever was necessary.
X Q. 548. How often did they fill the ice box ?
A. Twice a week.
X Q. 549. And what quantity of ice did they put in there at a
time ?
A. I coulidn’t say.
X Q. 550. About how much would you say ?
A. Probably four or five cakes.
X Q. 551. As much as a ton of ice or more?
113 A. I don’t know how much one of the cakes would weigh.
X Q. 552. How large are the cakes ?
A. Probably two feet square.
XQ. 553. And you think they put the ice in there about twice a
week ?
A. Yes. sir.
X Q. 554. Did they have any particular days for delivering ice ?
A. Not that [ remember of.
X Q. 555. Didn't they put in a quantity of ice there of Saturday
for Sunday trade?
A. Yes, sir.
X Q. 556. Did they put in any more on Saturdays than’ other
days of the week ?
A. I guess not.
X Q. 557. You say this ice was all placed in the lower ice box?
A. Yes, sir.
X Q. 558. And the kegs of beer stood on their ends, did they?
A. Yes, sir.
X Q. 559. Or laid on their sides ?
A. Oron their ends.
X Q. 560. What was the object of having the beer kegs standing
on their ends?
A. I couidn’t say.
X Q. d6L. Would it make the beer better ?
A. I suppose they could get more into the box.
X Q. 592. Did they keep any ale on tap in this lower ice
box ?
114 A. No, sir; never had any ale there.
X Q. 563. It was all lager, was it?
A. Yes, sir.
X Q. 564. What was the size of this large ice box upstairs, marked
on the mocel “B”?
A. It might have been 6 feet high or 7.
X Q. 560. And how wide?
Li tS egy 5 Were?
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MICHAEL MAGIN V8. JOHN H. LEHMAN. 57
Four or five.
Q. 566. And what depth ?
A couple of feet.
Q. 567. It was deep enough to receive a keg of beer?
It was.
Q. 568. And what was the size of the upper ice box in this ap-
tus?
Probably three feet in height.
Q. 569. And what depth and width?
Do you want the whole box or the top?
Q. 570. The depth and the width of the upper ice box.
A. I don’t understand whether you want the whole box or the
part where you put the ice in.
X Q. 571. Give me the depth of the whole ice box.
A. Three feet.
X Q. 572. And what was its width ?
A. Foot and a half.
X Q. 573. How many faucets did it have?
A. I couldn’t say whether three or four.
X Q. 574. And each of these faucets was fastened to the beer-sup-
ply pipe?
115 A. Yes, sir.
X Q. 575. What was the length of that beer-supply pipe
from where it was fastened to the keg to the faucets in the upper
ice box ?
A. It might have been probably 7 feet.
X Q. 576. You never measured it, did you ?
A No, sir.
X Q. 577. Were all the beer-supply pipes the same length ?
A. Yes, sir.
X Q. 578. How many coils in the upper ice box ?
A. Three. 7
X Q. 579. Who put those coils in?
A. I couldn’t say.
X Q. 580. Were they in the apparatus when you first saw it?
A. Yes, sir.
X Q. 581. Did you have oceasion to clean those beer-supply pipes?
A. No, sir.
X Q. 582. You never cleaned them ?
A. Yes, sir; I have cleaned them.
X Q. 583. How often ?
A. Once a week.
X Q. 584. Did you take out the coolers ?
A. No, sir.
X Q. 585. Did you allow the coolers to remain in the box ?
: A. Yes, sir.
116 X Q. 586. Who assisted you in cleaning them ?
A. Mr. Guenther.
X Q. 587. What did you do in order to clean them ?
A. Used to take an empty keg and fill it full of hot water and
8—323
a
DAD bd > Sb bd >
58 MICHAEL MAGIN VS. JOHN J. KARLE AND
soda, and take it back of the bar and run a hose in there, and go
down-stairs and Jet it run in the ice box.
X Q. 588. Would you allow that stuff to run into the lower ice
box ?
A. Yes, sir.
X Q. 589. In order to have this stuff run into the lower ice box
would you have to detach these rubber hose from the lead pipes ?
A. No, sir.
X Q. 590. You did not?
A. No, sir.
X Q. 591. You would not allow the rubber hose to remain at-
tached to the kegs?
A. Yes, sir.
X Q. 592. What was the length of this rubber hose ?
A. Down in the ice box ?
X Q. 593. Yes.
A. They might have been four or five feet.
X Q. 594. And you say they rested on this shelf on which the ice
ras located ?
A. Yes, sir.
X Q. 595. How many feet of that rubber hose rested on those
shelves ?
A. I couldn’t say that; they run just over the shelf.
117 X Q. 596. Was the same quantity of rubber hose on each
pipe?
A. No, sir.
X Q. 597. There was some pipes had less rubber hose than the
others, was there?
A. Yes, sir.
X Q. 598. What was the reason for that?
A. There was three barrels laid beside one other.
X Q. 599. Aad the barrel furthest from the place where the pipes
came through the ice box had the longest rubber hose, I suppose ?
A. Yes, sir.
X Q. 600. How long was that rubber hose ?
A. That might have been seven or eight feet.
X Q. GOL. And tae one next to that ; how long was that?
A. i don’t know; I never measured it.
X Q. 602. About how long ?
A. Probably six feet.
X Q. 603. Just the difference in the thickness of the keg, I sup-
pose ?
A. Yes, sir.
X Q. 604. What was the size of this rubber hose ?
A. I don’t know what was the size of it.
X Q. 605. Was it halfan ineh or three-quarters ?
A. I couldn’t tell whether it was half an inch or three-quar-
ters.
118 X Q. 606. It was larger than the beer-supply pipes, was it?
A. Yes, sir.
Sipe Sipe
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MICHAEL MAGIN VS. JOHN H. LEHMAN. 59
X Q. 607. Large enough so it could be slipped over the beer-sup-
ply pipe easily?
A. No, sir.
X Q. 608. You had some trouble in pulling it over, did you ?
A. I never pulled it over.
X Q. 609. Then I understand you the beer-supply pipe was fast-
ened to one end of it?
A. Yes, sir.
X Q. 610. And you think there were how many of those rubber
pipes?
A. Three. .
X Q. 611. And you can’t tell the size of them?
A. No, sir.
Recess until 2 o’clock p. m.
2 P. M.
X Q. 612. What was the size of the beer-supply pipes, the diame-
ter?
A. Half an inch or three-quarters of an inch.
X Q. 613. Of what material were they ?
A. Lead.
X Q. 614. Were they lined ?
A. I never looked on the inside of them.
X Q. 615. What was the diameter of the rubber hose?
119 A. I don’t know what the diameter of that was.
X Q. 616. How was the rubber hose fastened to these sup-
ply pipes ?
A. I think with a brass coupling.
X Q. 617. And how were the rubber lose fastened to the beer
keg ?
A. By a brass coupling.
X Q. 618. What was the size of these cvils in the upper ice box ?
A. Half inch or three-quarters of an inch.
X Q. 619. Were they the same size as the supply pipes?
A. Yes, sir.
X Q. 620. Of the same material ?
A. Yes, sir.
X Q. 621. Were the coils made by supply pipe formiug a coil in
the upper ice box ?
A. Yes, sir.
X Q. 622. And then the supply pipe was a continuous pipe from
the upper to the lower ice box, was it?
A. Yes, sir.
X Q. 623. And was the upper end of this supply pipe fastened to
the faucets ?
A. Yes, sir.
X Q. 624. To the inner end of the faucets, were they ?
A. Yes, sir.
X Q. 625. The faucets projected outside of the upper side ice
box ?
a. Yes, sir.
60 MICHAEL MAGIN VS. JOHN J. KARLE AND
120 X Q. 626. Did these coolers rest in the bottom of the upper
ice box ?
A. Yes, sir.
X Q. 627. And the ice and. ice water was allowed to remain on
top of the coolers ?
A. Yes, sir. ;
X Q. 628. Was this rubber pipe you have described ordinary rub-
ber pipe ?
A. Yes, sir.
X Q. 629. Then in the beer passing from the keg to the faucets it
will firyt pass through this rabber hose and then through the sup-
ply pipps and through the coils to the faucets in the upper ice box ?
A. Yes, sir.
X Q. 630. How was this beer forced ?
A. By a pump.
X Q. 631. From the lower ice box to the faucets ?
A. By a pump.
X Q 632. That pump was upstairs, was it?
A. Yes, sir.
X Q. 653. Was it one of those ordinary air pumps ?
A. A |fittle square pump that stood on the work board of the bar.
X Q. G34. Did it have pipes running from it to the beer kegs in
the cellar?
A. I never took notice of that.
X Q. 635. You never saw any, did you?
A. No, sIr.
121 X Q. 636. Was this pump used all the time you worked
for Mr. Meinhard ?
A. Not this one.
X Q. 657. They changed the pump, did they ?
A. Yes, sir.
X Q. 688. Who put the first in ?
A. I don’t know; it was there when I got there.
X Q. 659. It was in when you first commenced work there ?
A. Yes, sIr.
X Q. 640. And while you were working there they changed it?
A. Yes, sir.
X Q. 641. Who changed it?
A. I don’t know.
X
2
. Q. 642. What kind of a pump did they put in the second —
time ?
A. Square pump.
X Q. 648. Similar to thefi rst?
A. No, sir.
X Q. 644. Did that have pipes ?
A. Nothing, only a little piece of hose running into the washing
X Q. 645. What was the length of that hose?
A. About a foot and a half.
X Q. 646. Was there more than one hose ?
A. No, sir.
Ey cas <1 aside
tA.
MICHAEL MAGIN VS. JOHN H. LEHMAN. 61
X Q. 647. And that hose remained on this pump all the time you
worked there?
122 A. Yes, sir.
X Q. 648. Was this upper ice box lined ?
A. Yes, sir.
X Q. 649. What with ?
A. Zine.
X Q. 650. And was the bottom of the upper ice box also lined ?
A. I presume it was; you couldn’t see the bottom on account of
the coils.
X Q. 651. The beer-supply pipes ran through the bottom, did
they ?
A. I conldn’t say.
X Q. 652. You never examined the bottom, then ?
. No, sir.
Q. 655. What quantity of water did you generally allow to rest
in the bottom of the upper ice box ?
A. Used to dip it out every time we put in ice; sometimes it
would be pretty near full.
X Q. 654. Was there anything kept in the bottom of the upper
ice box ?
A. No. sir; not that I know of.
X Q. 655. Did this upper ice box have a cupboard under it ?
A. Yes, sir.
X Q. 656. Did that cupboard have doors ?
A. One.
X Q. 657. You would have no difficulty in seeing into the lower
part of the upper ice box by opening that door, would you ?
123 A. I don’t know that we could see it; it was pretty dark
there and boarded up tight.
X Q. 658. You had no oceasion to look in there?
A. No,sir.
X Q. 659. You don’t know what was in the lower part of that
upper ice box, do you ?
—. No, sir.
X Q. 660. Do you know if there was anything kept in that cup-
board ?
A. No, sir; there was not.
X Q. 661. Didn’t have any shelves then ?
A. No, sir.
X Q. 662. Could you see the supply pipes there ?
A. I never took any notice.
X Q. 663. What was the depth of that cupboard ?
A. About two feet.
X Q. 664. And how high was it ?
A. About three feet; the ice box.
X Q. 665. I mean the cupboard portion of the upper ice box.
A. About two feet.
X Q. 666. And the upper portion of the upper ice box was about
a foot in height, then ?
A. About a foot or a foot and a half.
e
Ab
62 MICHAEL MAGIN Vs. JOHN J. KARLE AND
to where the supply pipes entered the box ?
A. About five feet.
124 X Q. 668. How large an opening was that?
A. Where?
X Q. 669. Where the supply pipes entered.
A. Entered the ice box down below ?
X Q. 670. Yes.
A. Nothing, only a small four-cornered hole in there.
X Q. 671. Did the pipes fill the hole pretty well ?
A. Yes, sir; pretty well.
X Q. 672. How many pipes came out of that hole?
A. Thiree.
X Q. 675. Which corner of the ice box did these pipes enter ?
A. Right on the east side near the corner, or northeast corner.
X Q. 674. A person going into the lower ice box, would he have
any difficulty in seeing these supply pipes ?
A. No, SIP,
X Q. 675. How far away were they from the door of the lower
ice box ?
A. How far from the pipes?
X Q. 676. Yes.
A. Probably five feet.
X Q. 677. How much of the pipes could you see?
A. Could see them until they joined the rubber hore.
125 X @. 678. How many feet was that ?
A. Probably a foot.
XQ. 679. What was the distance from the saloon floor to the top
of the lower ice box ?
A. No distance at all. The ice box run right up to the floor.
X Q. 6SO0. Did the joist of the floor rest on the ice-box ?
A. I believe they did.
XQ. 6OS1. And which way did those joist run, east and west or
north and south ?
A. North and south, [ think.
X Q. 682. Then the supply pipes in passing down into the lower
ice box would pass between the Joist, would they ?
A. No; according to that the joist would run east and west.
X Q. 683. What is the fact about the supply pipes passing be-
tween the joist from the upper to the lower ice box ?
A. They didn’t pass between them; they came below the joist.
X Q. 684. And then entered into the lower ice box ?
A. Run off into the lower ice box, ciel
X QQ. 685. In which direction did they run going into the lower
ice-box ?
A. They run west.
X Q. 686. And when they entered the lower ice box which direc-
tion did they run? :
A. They run south.
126 X Q. 657. And to where the kegs of beer were located in
the lower ice box ?
X Q. 667. What distance was it from the top of the lower ice box
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MICHAEL MAGIN VS. JOHN H. LEHMAN. 63
A. Yes, sir.
X Q. 688. What was the depth of these joist ?
A. I couldn’t say ; probably a foot.
X Q. 689. Were these coils taken out while you worked for Mr.
Meinhard?
A. No, sir.
X Q. 690. They remained in the upper ice box all the time?
A. Yes, sir.
X Q. 691. While you worked for Mr. Meinhard were there any
repairs made to these pipes ?
A. No, sir. .
X Q. 692. Were these supply pipes soldered into the bottom of
the upper ice box ?
A. I suppose they was. I don’t know whether they were soldered
or whether they came in through with a collar.
X Q. 693. You never examined them as to that?
A. No, sir.
X Q. 694. Was this lower ice box also lined ?
A. Yes, sir.
X Q. 695. What was that lined with ?
A. Zine or tin.
X Q. 696. Was it filled in ?
A. Yes, sir.
X Q. 697. With what?
A. I don’t know what it was filled in with.
127 X Q. 698. Was the lower ice box square, or how was it in
reference to that?
A. It was longer than it was wide.
X Q. 699. Hew much longer?
A. Probably a couple of feet.
X Q. 700. You think it was about eight feet in height, do you?
A. About that: I never measured it.
X Q. 701. And the length about how much east and west ?
A. It might have been seven or eight feet.
X Q. 702. Then it was about square ?
A. It wasn’t square.
X Q. 703. It wasn’t square ?
A. No, sir.
X Q. 704. Which was the longest way ?
. The length of it.
X Q. 705. The length east and west?
A. Yes, sir.
X Q. 706. How much longer was it than the height?
A. I don’t know if it was any longer than the height.
X Q. 707. Then what do you mean by saying it wasn’t square?
A. I mean it wasn't as wide as long.
X Q. 708. What do you eall the length of the box?
A. The longest length of it.
X Q. 709. East and west or north and south ?
128 A. East and west.
=
64 MICHAEL MAGIN VS. JOHN J. KARLE AND
X Q. 710. It was longer east and west than it was north and
south, then ?
A. Yes, sir.
X Q. 711. And how long was it east and west?
A. Probably seven or eight feet.
X Q. 712. And how long was it north and south ?
A. Five or six.
X Q. 715. And how high was it?
A. About eight feet.
X Q. 714. Was the upper ice box directly over the lower ice box?
A. East.
X Q. 715. Was the upper ice box east or west of the lower ice
box ?
A. East. ;
X Q. 716. How far east ?
A. Probably five feet. :
X Q. 717. Four feet ?
A. Four or five feet.
X Q. 718. You never saw any tin pipes, then. in this upper ice
box ?
A. No, sir.
X Q. 719. Did you see any pails or tubs in the cupboard to re-
ceive the water from the upper ice box ?
A. No,sir.
X Q. 720. Were there any there, to your knowledge ?
A. Not to nV knowledge. j
129 XQ. 721. Were there any kept there in the cupboard for :
any purpose ? E
4
A. No, sir: not that I know of.
X Q. 722. Did you have oceasion to use pails in connection with
the bar’
A. Yes, sir.
X Q. 725. For what purpose?
A. Carrying water and scrubbing out and dipping water. :
XQ. 724. Did you use those pails in carrying the water out of :
the upper ice box ?
A. Yes, sir.
X Q. 725. What was the thickness of the upper ice box ?
A. I don't know; probably an ineh.
X Q. 726. Was it filled in?
A. I guess not; but I couldn’t say.
XQ. 727. How far was it from the foot of the stairs leading from
the saloon to the cellar to the west end of the lower ice box ?
A. ‘Two or three steps.
X Q. 728. Then in going down-stairs when you got to the foot of
the stairs vou would only have to take two or three steps to come to 3
the lower ice box, would you ?
A. No, sir.
X Q.729. And then the lower ice box of the wine cellar extended
from there to the further end ?
A. Yes, sir.
MICHAEI MAGIN VS. JOHN H. LEHMAN.
id X Q. 730. Did it extend all the way to the east wall?
130 A. No, sir.
X Q. 731. There was a space between the east end of the
wine cellar and the east wall?
A. Yes, sir.
X Q. 732. How often did you put ice in this upper ice box ?
A. Two or three times a day.
X Q. 733. And before putting in ice you generally dipped out the
water, did you ?
? : A. Yes, sir.
| X Q. 734. Did you wash out the ice box ?
e A. No, sir.
735. Rub it out?
sir.
36. Clean it in any way ?
, sir.
737. And you don’t know what pacnane of the water from
ted ice in the lower ice box ?
oO, sir.
738. Don’t you know there was a sewer there to carry it
ms
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ver seen one there.
. Did the lower ice box have a floor to it ?
ir’.
In what part of the iower ice box were these shelves?
three sides; all but the front.
x Q. 743. How many shelves were they ?
131 A. Three.
: X Q. 744. One on each side?
A. Yes, sir.
X Q. 745. How far were these shelves from the bottom of the lower
ice box ?
A. About four or five feet.
X Q. 746. What was the width of those shelves?
A. Prettv near two feet, [ should judge.
X Q. 747. And on those shelves rested the ice, you say ?
A. Yes, sir.
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Pb a>
Redirect examination by Mr. BENNETT, counsel for com-
plainant:
Re-D. Q. 748. How old did you say you were?
A. Twenty-seven.
Re-D. Q. 749. And how old were you when you commenced shoe-
making ?
A. ‘Twenty-one, pretty near.
Re-D. Q. 750. And how old were you when you entered the em-
ploy of Mr. Meinhard as a waiter boy ?
A. Seventeen.
Re-D. Q. 751. Are you older or younger than your brother Albert?
A. I am older.
9—323
66 MICHAEL MAGIN VS. JOHN J. KARLE AND
Re-D. Q. 752. Wiile you were employed at Meinhard’s as a waiter
boy was your brother also employed there as a waiter boy ?
A. He was working there part of the time then.
182 Re-D. Q. 753. Did you do anything at shoemaking while
you were at Meinhard’s ?
A. No, sir.
Re-D Q. 754. Did you go direct from Mr. Meinhard’s to learn
your trade as a shoemaker?
A. I did.
Re-D. Q. 755. And when was it, according to your best recollec-
tion, that you commenced at your trade as shoemaker ?
A. The very latter part of 1879.
Re-D. Q. 756. And was it for about nine months prior to that
you had worked steadily for Meinhard as a bartender?
A. Yes, sir.
Re-D. Q. 757. During all this time did you tend bar in the
saloon ?
A. Yes, sir.
Re-D. Q. 758. You stated oh your cross-examination that some-
times you tended bar in the hall,
A. Sunday evenings and onee in awhile Sunday afternoon was
the times IT tended bar in the hall.
Re-D. Q. 760. And when the hall was open on Sundays the saloon
was closed, was it not?
A. Yes, sir; that was in the evening.
Re-D. Q. 761. During about the nine months that you worked
steadily. for Meinhard as bartender did you tend bar at the hall
other than Sunday nights?
A. No, sir.
133 Re-D. Q. 762. During the time vou were employed steadily
by Mr. Meinhard as ‘a bartender were you mostly engaged
in tending bar in the saloon ?
A. No, sir; not mostly; in the evenings; during the day some-
times.
Re-D. Q. 763. Did any of the other bartenders besides yourself
dip the water out of the upper ice box ? :
A. No, sir.
Re-D. Q. 764. Was there any other way to get the ice water out
of the upper ice box ? |
A. No, sir.
Re-D. (). 765. Where the beer-supply pipes entered the upper
ice box was it fixed so that no water eould leak out?
A. No, sir; there was no water eould leak eut.
Re-D. Q. 766. So long as vou tended bar at Meinhard’s did you
see any water taken out of that upper ice box other than dipping
it out ?
A. No, sir.
Re-D. Q. 767. Was there any possible way in whieh the water
could have been drawn from the upper ice box into the lower
ice box ?
A. No, sir.
Sante AES. RANTS fgg HIS ae
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MICHAEL MAGIN VS. JOHN H. LEHMAN. 67
Re-D. Q. 768. Was the bottom of the upper ice box water-tight?
A. Yes, sir.
Re-D. Q 769. You have spoken of a pair of stairs leading from
the saloon to the cellar. Were those stairs used ?
A. No, sir.
154 Re-D. Q. 770. Why not?
A. Because the ice box upstairs stood right over the trap-
door, back of the bar, the large ice box.
Re-D. Q. 771. The large ice box marked on the model “ B” stood
over the trap?
A. Yes, sir. :
Re-D. Q. 772. So you euofldn’t use that pair of steps ?
A. Yes, sir.
Re-D. Q. 773. Does this door in the model “Complainant’s Ex-
hibit Model Meinhard Apparatus” represent the location of that
trap-door ?
A. Yes, sir.
Re-D. Q. 774. And the steps lead from the trap-door down into
the cellar? «
A. Yes, sir.
Re-D. Q. 775. Those steps not being used, how did you go into
the cellar when you went into the lower ice box ?
A. Around the back way.
Re-D. Q. 776. In going into the cellar for any purpose were the
beer-supply pipes so exposed as to be readily seen ?
A. Yes, sir.
te-D. Q. 777. And was there ever any covering around these beer-
supply pipes?
A. No, sir.
Re-D. Q. 775. Of what material was the outside surface of the
beer-supply pipes ?
A. Lead.
Re-D. Q. 779. And could you see the lead pipes piainly ?
A, Yes, sir.
135 Re-D. Q. 780. When you were a waiter boy and used to go
into the cellar to get kegs of beer out of the lower ice box for
use In the hall or garden, how did you go into the cellar?
A. Went down the stairs that run between the hall and the
saloon.
Re-D. Q. 781. That is another pair of steps?
A. That is the only pair to go down,
Re-D. Q. 782. When going into the cellar to get kegs of beer out
of the lower ice box, could you and did vou see these supply pipes?
A. Yes, sir.
Re-D. Q. 783. Were they always bare?
A. Yes, sir.
Re-D. Q. 784. Was there any drip of water into the lower ice box
from the upper iee box or anywhere from the saloon ?
A. No, sir.
Re-D. Q. 785. Whose business was it while you were saloon-keeper
to put the ice on the shelves in the lower ice box?
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68 MICHAEL MAGIN VS. JOHN J. KARLE AND
A. The iceman.
Re-D. Q. 786. He brought the ice and put it on the shelves, did
he?
A. Yes, sir.
Re-D. X. 787. Did each beer-supply pipe have in the lower ice
box a rubber connecting the beer-supply pipe to the faucet ?
A. Yes, sir.
Re-D. Q. 788. Did any rubber pipe or hose extend up and cover
the beer-supply pipes from the lower ice box into the upper ice
ox ?
136 A. No, sir.
Re-D. Q. 789. During the time you worked there, both as
waiter boy and as barkeeper, did you ever know of those beer-sup-
ply pipes being covered or boxed in?
No, sir.
Re-D. Q. 7 790. Did you ever take measurements of the lower and
upper ice ‘Sons ?
A. No, sir.
Re-D. Q. 791. You have been questioned in reference to the
length, breadth, and height of the upper and lower ice box. Did
you give that according to your best judgment ?
A. Yes, sir.
Re-D. Q. 792. You never made any measurements, did you ?
A. No, sir.
Re-D. Q. 295. Or as to the length of the pipes?
A. No, sir. |
te-D. Q. 794. You may state whether or not Mr. Gilbert was in
the habit of staying around the saloon daily ?
A. Yes, sir.
Re-D. Q. 795. Did he sometimes tend bar ?
A. Yes, sir: the most of the time.
Re-D. Q. 796. Did you ever see Mr. Gilbert use this beer drawing
and cooling apparatus ?
A. Yes, srr.
te-D. Q. 797. Did Mr. Gilbert use that beer-drawing apparatus
during the time you were bartender in the saloon ?
137 A. Yes, SIP.
Re-D. Q. 798. Did you ever see Mr. Gilbert or Mr. Mein-
hard dip water out of the upper ice box?
A. No, sir; not that I remember of.
Re-D. Q. 799. That was usually your duty and the other bar-
keeper’s ?
A. Yes, sir.
Re-D. Q. 800. Mr. Gilbert is still living, is he?
A. Yes, sir.
Re-D. Q. 801. Here in the city of Rochester ?
A. Yes, sir.
Re-D. Q. 802. Referring now to the delivery of the beer, is it
all first slid into the cellar?
A. Yes, sir.
Re-D. —. 803. And what was done with it then?
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MICHAEL MAGIN VS. JOHN H. LEHMAN. 69
A. The man came down cellar and rolled it into the ice box.
Re-D. Q. 804. Why did they put it in the ice box?
A. To keep it cool.
Re-D. Q. 805. Then when you wanted beer in the garden or hall
where did you get it?
A. From the ice box below.
Re-D. —. 806. You went down and took out one of the kegs that
was left there to cool ?
A. Yes, sir.
te-D. Q. 807. Did you draw direct from the wood in the concert
hall? ,
A. Yes, sir.
Re-D. Q. 808. I think vou said there was an air pump used for
forcing the beer from the cellar up into the saloon ?
138 A. Yes, sir.
Re-D. Q. 809. When you were bartender where did they
keep the key to the wine cellar?
A. Back of the bar, on a board.
Re-D. Q. 810. Whose duty was it to go into the wine cellar to get
the wine when it was needed ?
A. I used to do that the first thing in the morning, and if we run
out would do it through the day, or any one that was around there.
Re-D. Q. 811. In the morning vou would go down and get what
vou thought sufficient for the day ?
A. Yes, sir.
Re-D. Q. 812. And if vou run out would you go down again?
A. Yes, sir.
Re-D. Q. 813. Every time you went into the wine cellar did you
pass these beer-supply pipes ?
A. Yes, sir.
Re-D. Q. 814. And could you plainly see them ?
A. Yes, sir.
te-D. Q. 815. You may state whether or not on all occasions you
saw these pipes they were covered or bare.
A. They were bare.
Re-D. Q. 816. Have you been in Meinhard’s employ since leaving
there, in the fall or winter of 1879?
A. No, sir.
te-D. Q. 817. At that time you ceased having any connection with
the beer trade, did you?
A. Yes, sir.
139 Re-D. Q. 818. Does the model “Complainant’s Exhibit
Model Meinhard Apparatus” show clearly the location and
arrangement of the upper and lower ice box ?
A. Yes, sir; it does.
Re-D. Q. 819. Did you have to clean the beer-supply pipes?
A. Yes, sir.
Re-D. Q. 820. How often did you clean them ?
A. Once a week. |
Re-D. Q 821. Describe to us precisely what vou did in cleaning
these pipes and how you did it.
70 MICHAEL MAGIN VS. JOHN J. KARLE AND
A. Usually took a beer barrel and filled it full of water and soda
and got it back of the bar and put a hose on it and fastened
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