Hanks Dental Ass’n v. Tooth Crown Co., 194 U.S. 303 (1904)

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Hanks Dental Association v. International Tooth Crown Company

No. 253

Argued April 26, 1984
Decided May 16, 1904
194 U.S. 303

ON A CERTIFICATE FROM THE CIRCUIT COURT

OF APPEALS FOR THE SECOND CIRCUIT

Syllabus

The Act of March 9, 1892, 27 Stat. 7, in regard to taking testimony, does not repeal or modify § 861, Rev.Stat., or create any additional exceptions to those specified in the subsequent sections by enlarging the causes or grounds for taking depositions, and is not supplementary to § 914, Rev.Stat.

A circuit court of the United States in the State of New York is not authorized to make an order for the examination of a party before trial before a master or commissioner appointed pursuant to §§ 870 et seq., of the Code of Civil Procedure of New York.

The certificate in this case is as follows:

This cause comes here upon a writ of error for the review of the judgment of the Circuit Court for the Southern District of New York, entered upon the verdict of a jury in favor of the defendant in error, The International Tooth Crown Company, sustaining the validity of a patent and awarding damages for infringement. Upon examination of the record, it appears that the sole evidence of infringement was found in the deposition of the president of the Hanks Dental Association, the plaintiff in error, taken pursuant to an order of the circuit court under sections 870 et seq. of the Code of Civil Procedure of the State of New York, the defendant in error contending the examination of a party before trial, if permitted by the law of the state, is authorized by Act of Congress of March 9, 1892. 27 Stat. 7.

The taking of the deposition was objected to at every stage, and when offered in evidence at the trial, it was again duly objected to, and to its reception the plaintiff in error duly excepted.

Whether this practice is warranted or not is the question upon which we desire the instructions of the Supreme Court.

Question Certified

Upon the facts above set out, the question of law concerning which the court desires the instruction of the Supreme Court is:

Was the order of the circuit court directing the president of the Hanks Dental Association, the defendant in that court, to appear before a master or commissioner appointed pursuant to the provisions of sections 870 et seq. of the Code of Civil Procedure of the State of New York valid and authorized under the Act of March 9, 1892?