# Record and brief — Michael Magin, Appellant, vs. John J. Karle., Michael Magin, Appellant, vs. John H. Lehman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1892_84-85%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1892 ## Text 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. 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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 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. 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 by Woe cuff ee Rif FER eb nee pg r } os. et i a = 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 we © pe eta ~ = = ta 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. Znuz v2) a qo © = op —_ ~] > 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 alter ‘hile arn lee- hat he i he 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? . _— 3 Das fe + Shen Sins ¢ Rega ra Ee PPR 2S & ROR AaR 4¥, ™ SU Coe RR hs ce os Sa ienetiniieeth teenasitietetine a et ~ ileal anata g aad BO ioe 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? = -1¢e ver 1ce as 1p- nd he nd Vy 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 one end of ed hose onto these faucets and forced it through down Into the ice box be good Re-D. Q. 822. Then you were cleaning out the inside of the beer- supply pipes with soda water, were you ” A. Yes, sir. te-D. Q. 823. And you force this soda water into and through the bee “4 Sup} ly pipes by the pressure of the air pump ? Yes, sir. Re-D. (). 824. And did this soda water pass through the beer- supply pipes and down into the lower ice box ? Yes, sir. Re-D. Q. 825. And what beeame of it after it got into the lower ice box ? 140 A. Went onto the floor? Re-D. Q. $26. In cleaning out the inside of the beer-supply pipes did you disconnect tl:e rubber connection to the beer-supply pipe? A. No, sir. Re-D. Q. 827. Did vou, however, discoutinue the opposite end of the rubber connection—— Defendants’ counsel objected. Question withdrawn. Re-D. Q. S28. You may state how it was that thissoda water after being forced through the beer-supply pipes was permitted to run into ‘the lower ice box. A. Turn off that eoupling upon the beer faucet—off the beer barrel. Me-D. Q. $20. T suppose you cleaned the interior of the pipes to keep them fresh ? A. Yes, sir. Re-D. Q. 830. So as not to sour the beer? A. Yes, SIP. Re-D. Q. 851. And this you did every week, did you? A. Yes, sir. Re-D. Q. 832. Would you before forcing the tie soda water through go down into the lower ice box and disconnect the rubber connec- tion from the beer faucets ? A. Yes, sir. Re-D. Q. 855. Were you ever troubled with any leaking from the upper ice box into the closet underneath ? 141 A. No. sir. Re-D. Q. 854. Am I eorreet in underst: nding you to have testified that that closet underneath the upper ice box was about two feetin height? A. Which one’? Re-D. Q. 835. The closet underneath the upper ice box ? A. Yes, sir. Re-D. Q. 836. lave you any interest in this lawsuit? Cr- er Pee PR Ran ahe MICHAEL MAGIN VS. JOHN i. LEHMAN. 71 A. No, sir. Re-D. Q. 837. Are you in any way connected with Mr. Magin? A. No, sir. Re-D. Q. 838. Or have you any connection with Mr. Gordon ? A. No, sir. Re-D. Q. 889. Referring to the time vou gave your affidavit in the cases of Magin against McKay and against Welker, do you remember shortly after giving vour affidavit being called upon by your brother, who talked with you about your affidavit? A. I remember of his saying something, but I don’t know what it was. Re-D. Q. 840. He came down to see you about it, did he? A. Yes, sir. Re-D. Q. $841. What did he ask you to do? A. I don’t remember. Re-D. Q. $42. Did Mr. Meinhard call to see you ? 142 A. No, sir; he didn’t come to call to see me. He came to , the house. Re-D. Q. 843. He came to the house, did he? A. Yes, sir. te-D. Q. 844. How long was this after you gave that affidavit? A. Probably a week or so. Re-D. Q. 845. Did he come more than once? A. He came there once; twice. Re-D. Q. 846. Did he ask for you ? A. Yes, sir. Re-D. Q. 847. Did he leave word what he wanted of you? A. He did not. Re-D. Q. 848. What did your brother say about your having and giving an affidavit to Magin ? A. All that I ean remember is that he said he beat once and would beat again. ‘That is all I can remember. Re-D. Q. S49. Who said that? A. My brother. Re-D. Q. 850. Did he tell you Meinhard had told you that? A. Yes, sir; if I remember right, he said that at home to my foiks, too. Re-D. Q. 851. Who said it to your folks? A. Meinhard. Re-D. Q. 852. He talked to your folks about this matter, did he? A. Yes, sir; talked to my mother. 143 Re-D. Q. 853. Do vou remember, after your brother talked with you and after Meinhard was at your house, making an affidavit for Mr. Magin in which you stated what they had said to you? —. No, sir; I do not. Re-D. Q. 854. Has Mr. Meinhard been to your house or been to see you since that time? A. Not that I know of. Defendants’ counsel states that he objects to the complainants’ ee tne anisole - aeciniiieeaten dened sie’ 72 MICHAEL MAGIN VS. JOHN J. KARLE AND counsel speaking with the witness Stief while in course of his ex- amination. Complainant’s counsel states that if defendants’ coun- sel wanted to tell the trath he could have done so by saying that the witness had left the stand, having closed his deposition, as is the fact. Defendants’ counsel states that complainant’s counsel be- fore talking to the witness stated that he was to recall the witness, and before recalling him he was engaged in a conversation with him and is at present engaged. Mr. Bennerr: Which ts a lie. Complainant’s counsel states that he intends recalling the witness to identify his two affidavits and has handed them to him to read and the witness is reading them, and that it seens Impossible for the defendants’ counsel to tell the truth for eighteen seeonds. Defendants’ counsel reminds the complainant’s counsel that he is now in a court of justice and he must endeavor to observe 144 the proprieties in a court and not use abusive language such as he las indulged in here; that it is very unbecoming, and that it is something that attorneys in Rochester are not in the habit of hearing during the progress of a trial in court and very seldom on other oecasions. Complainant’s counsel says that his experience of Rochester attor- neys, with one exception, is that they adhere to the truth. RAYMOND Stier, recalled and resworn, in answer to interroga- tories propounded to him by the counsel for the complainant, Mr. BENNETT, testified as follows: i Re-D. Q. 855. Mr. Stief, did you make two affidavits in the case of Magin against Mckay and against Welker ? A. I did. Re-D. Q. 856. fave vou read these documents that I now hand you, purporting to be copies of your two affidavits made in the cases of Magin against Mckay and against Welker; and, if so, are they not correct copies of your affidavit? A. Yes, sir. The copies of the two aflidavits referred to are offered in evidence and marked Complainant’s Exhibit Stief’s Affidavit of October 8th, 1885, and Complainant’s exhibit Stief’s Affidavit of October 27, ISS». Defendants’ counsel objected to the affidavits as immaterial and incompetent. Mr. Bexnerr: You make no objection to the copies, do you, with the understanding that the examiner will compare them as with the others ? l4o Mr. Suttivan: I do not object to them upon the ground that they are copies, but upon the ground that they are in- competent and immaterial, cach Si ch ai Riana pea ete hee ls CS Ge MICHAEL MAGIN VS. JOHN H. LEHMAN. 73 Recross-examination by Mr. SuLLIvAN, counsel for the de- fendants: Re-X Q. 857. Have you left the room since you were cross-exam- ined by me? A. No, sir. Re-X Q. 858. Have you left the room since we commenced your examination this afternoon ? A. No, sir. Re-X Q. 859. Before you were recalled by Mr. Bennett did he call your attention toan affidavit which you made in the cases of Magin against Welker and Mckay ? : Complainant’s counsel states that the witness was recalled for the purpose of identifying the two afhidavits which he made in the cases of Magin against McKay and Magin against Welker, and the wit- ness, not having read those affidavits, was handed the copies offered in evidence with instructions to read the same, that he might testify in regard to them. Re-X Q. 860. While you were engaged in reading those affidavits did Mr. Bennett explain them:to you ? A. No, sir. Re-X Q. 861. What did he say to you about them ? A. Only showed me where they were and told me to read them over. Re-X Q. 862. How long did that occupy ? 146 A. Probably four or five minutes. Re-X Q. 8638. And how long a time elapsed from the time you left the stand until you were recalled again ? A. Probably six or seven minutes. (Signed) RAYMOND STIEF. It was stipulated that the examiner might sign the testimony with the names of the respective witnesses. Joun TH]. LEHMAN, sworn, in answer to interrogatories proposed to him by Mr. Bennett, counsel for the complainant, testified as fol- lows: Q. 1. What is vour name, age, residence, and occupation ? A. John H. Leiiman; place of business, 255 North Clinton street ; occupation, restaurant—saloon ; age, thirty-eight. Q. 2. You are a saloon-keeper, aren’t you ? A. Yes, sir; you might call it that way. Q. 3. Are you one of the defendants in these cases ? A. Yes, sir. Q. Are youa member of the Saloon-Keepers’ Protection Associa- tion of the City of Rochester ? A. Yes, sir. Q. 5. How long have you been a member of that association ? A. About eight months. Q. 6. When was that association formed ? 10—323 5A RS TNT SOIT IG OL EES eee NS el ee Cotas ae Eat bees 74 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Aper_scotus_1892_84-85%3A0. Public record. Not legal advice.