Opinion
Cooper, Kerr & Dunham, of New York City (William P. Bair and Will Freeman, both of Chicago, Ill., of counsel), for plaintiffs.
Watson, Bristol, Johnson & Leavenworth, of New York City (Lawrence Bristol, and Charles P. Bauer, both of Chicago, Ill., of counsel), for defendant.
MOSCOWITZ, District Judge.
This is a motion made by the defendant for the following relief: '1. For a severance of the causes of action herein involving patents Nos. Re. 17,405 and 1,579,497. '2. For a summary judgment dismissing plaintiffs' complaint as to the causes of action involving patents Nos. Re. 17,405 and 1,579,497. '3. For a finding that patents Nos. Re. 17,405 and 1,579,497 are invalid. '4. For a finding that Perfex Radiator Company and its wholly owned subsidiary Perfex Controls Company have defended this suit. '5. For costs and for such other and further relief as to the Court may seem just.' The plaintiffs conceded upon the argument that the defendant was entitled to all of the relief sought, except item No. 4. This motion is governed by Rule 56(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A.following section 723c, which provides: 'The motion shall be served at least 10 days before the time specified for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that, except as to the amount of damages, there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' The motion herein was based upon the affidavit of Lawrence Bristol, Esq., verified June 3rd, 1940, and the pleadings, proceedings and testimony, and upon the opinion and decision of the United States Circuit Court of Appeals for the Second Circuit in Cleveland Trust Company v. Osher & Reiss, Inc., 109 F.2d 917. The only affidavit submitted in opposition to this motion was by Will Freeman, Esq., a member of the bar of the State of Illinois, and of counsel for the plaintiffs. There is no claim in said affidavit that there is any issue regarding the conduct of the defense of the suit by the Perfex Radiator Company and its wholly owned subsidiary Perfex Controls Company. The record submitted by the defendant, to which there is no denial by affidavit or other competent proof, including the proof introduced by the plaintiffs upon the separate trial of the issue as to jurisdiction held on April 22, 1938, conclusively shows that the Perfex Radiator Company and the Perfex Controls Company had agreed with the defendant Thermoco, Inc., to defend the case at their own expense and save the defendant harmless from any and all damages which may be assessed. No issue therefore remains to be tried. Defendant is therefore entitled to the relief requested in this motion. The order of severance, findings of fact and conclusions of law, and judgment submitted by the defendant have been signed.