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Appeal from the Circuit Court of the United States for the Southern District of New York.

Suit in equity by the Central Trust Company of New York against the Third Avenue Railroad Company and others; the American Surety Company of New York, intervener. From an order of the Circuit Court, intervener appeals. Affirmed.

Louis Marshall, for appellant.

Bowers & Sands (John M. Bowers and Middleton S. Borland, of counsel), for appellee.

Evarts, Choate & Sherman (H. J. Bickford, of counsel), for receiver Whitridge.

Before COXE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge. The Central Trust Company, trustee under the mortgage of the Third Avenue Railroad Company, brought an action to foreclose. The appellant, the American Surety Company, intervened and presented its claim to be first paid the sum of $44,561.32 out of the proceeds of the mortgaged property. The claim for preference is rested upon the fact that the appellant, as surety of the railroad company upon an appeal from a judgment in favor of the city of New York for car license fees incurred before, but for which suit was brought and judgment recovered after, the date of the mortgage, has paid the judgment. The special master and the court below denied the petition, and we concur in their conclusion.

The appellant paid the judgment in the ordinary course of its business, in consideration of premiums received from the railroad company, without any purpose of benefiting the mortgagee. It is by subrogation clothed only with the rights of the city, and these are expressed in the judgment which has been assigned to it, and which it may enforce by execution in the usual way. Assuming, in accordance with the appellant's contention, that the license fees are to be regarded as taxes, still neither they nor the judgment for them are entitled to any lien or preference because none is given by statute. This would be so even if the claim belonged to the state. Wise v. Wise Co., 153 N. Y. 507, 510, 47 N. E. 788.

The appellant also relies on broad principles of equity derived from the maxim that he who asks equity must do equity. Conceding, as it contends, that payment of the license fees is such a condition of the grant from the state that the state may forfeit the franchise or enjoin the operation of the road for nonpayment, still it does not follow that the appellant is entitled to a preference for this reason. By payment it became in no way connected with the state, which alone can assert these rights. City v. Bryan, 196 N. Y. 158, 89 N. E. 467. And we cannot assume, for the purpose of displacing the mortgagee's contract lien, that if the license fees had not been paid the city would have moved the state to assert these rights against the railroad company and that the state would have done so.

The order is affirmed.

AMERICAN PNEUMATIC SERVICE CO. et al. v. SNYDER et al.

(Circuit Court of Appeals, Third Circuit. July 29, 1910.)

No. 1,317.

1. PATENTS (§ 328*)—ANTICIPATION-VALIDITY-PNEUMATIC DESPATCH SYSTEM. The Bavier & Hawkes patent, No. 658,102, for improvements in pneumatic despatch systems, held not anticipated and valid.

2. PATENTS (§ 173*)-CONSTRUCTION OF CLAIMS-PIONEER INVENTION-DOCTRINE OF EQUIVALENTS.

The claims of a patent of a pioneer invention are entitled to some liberality in the application of the doctrine of equivalents.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 248; Dec. Dig. § 173.*]

8. PATENTS (§ 328*)-INFRINGEMENT.

The Bavier & Hawkes patent, No. 658,102, for improvements in pneumatic despatch systems, held infringed.

McPherson, District Judge, dissenting.

Appeal from the Circuit Court of the United States for the District of New Jersey.

Action by the American Pneumatic Service Company and another against William V. Snyder and others. Decree of dismissal (174 Fed. 152), and complainants appeal. Reversed, with directions.

M. B. Philipp, for appellants.

Henry P. Simonton, for appellees.

Before BUFFINGTON, Circuit Judge, and BRADFORD and McPHERSON, District Judges.

BRADFORD, District Judge. This is an appeal by the American Pneumatic Service Company and the Pearsall Pneumatic Tube and Power Company from a final decree of the circuit court of the United States for the district of New Jersey, in a suit in equity brought by the appellants against William V. Snyder, William V. Snyder, Jr., and Watson B. Snyder, trading as W. V. Snyder & Company, the appellees, dismissing a bill of complaint for an injunction and an accounting because of alleged infringement by the defendants of letters patent of the United States No. 658,102, dated September 18, 1900, granted to Bavier & Hawkes for improvements in pneumatic despatch systems. No question of title to the patent is raised, and the suit was brought by the Pearsall Pneumatic Tube and Power Company, as owner, and the American Pneumatic Service Company, as exclusive licensee for the United States and the territories thereof. The patent in suit has two claims, both of which are alleged to have been infringed. They are as follows:

"1. A vacuo despatch system characterized by the combination of a line of tubing, an exhauster operatively connected therewith, and a terminal airFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

inlet having a closure which automatically shuts the air-inlet when no carrier is being despatched and automatically opens same when a carrier is being despatched, substantially as described.

"2. The combination in a vacuo despatch system of a line of tubing, an exhauster operatively connected therewith despatch-inlets and dischargeoutlets normally closed, and a terminal air-inlet on said line remote from said exhauster provided with a closure which is arranged to automatically shut the said terminal air-inlet when no carrier is being despatched, and automatically open it when a carrier is being despatched, substantially as described."

In the description the patentees say:

"Our invention relates to improvements in pneumatic-despatch systems, especially such as are used for the transmission of cash-carriers in mercantile houses. In particular the invention relates to improvements in that class of systems wherein a partial vacuum is maintained in the line by an exhausting-engine, as a pump, and which systems are known as 'vacuo' systems. The object of our invention is to attain the highest practicable economy in the operation of vacuo systems by reducing the duty of the exhaustingengine, which is hereinafter termed the 'exhauster,' to the minimum required for the service actually performed when moving the carriers through the line, and our invention effects this result by providing a system wherein the line is closed when no service is being performed-that is, when no carrier is being despatched-so that then all the duty put on the exhauster is to maintain the requisite slight vacuum in the closed line; but which system is also such that a terminal air-inlet opens to the necessary degree to maintain the requisite movement of air through the line when one or more carriers are being despatched. In the common vacuo system the extremity of the line farthest from the exhauster is always open and the exhauster is always required to do at least the work of moving the calculated volume of air through the line in the calculated time even if no carrier is in the line. Thus as in practice there are often considerable periods of time when no carriers are being despatched the work thrown on the exhauster is far in excess of what is needed to operate the line at those times when carriers are being despatched, and this unnecessary expenditure of energy renders such a system very wasteful of power. In our system, however, the air-inlet at the extremity of the line, called the 'terminal' air-inlet, is normally—that is, when no carrier is being despatched-closed, as are also the valves or flaps at each of the despatching-inlets and at the discharge-outlets of the carriers. Normally, then, ours is a closed system, wherein all the work required of the exhauster is to merely maintain the requisite slight vacuum in the line, and the closure at the terminal air-inlet is such, whatever may be its details of construction, as to automatically open, when a carrier is in the line, to such an extent that the exhauster will develop the requisite current in the line to move the carrier to its destination and will automatically close when all the carriers that were in the line have passed out of the line at their discharge-outlets. The invention, therefore, is not limited to any special closing device, but equally covers all such devices which, in combination with the line and the exhauster, close the line when no carrier is being despatched, and open it when one or more carriers is or are being despatched, thereby producing the economy of energy, at which our invention aims. our invention said terminal air-inlet is provided with a closure, which operates automatically in such a manner as to close the said terminal air-inlet when the exhauster is running but no carrier is in the line and to open the said terminal air-inlet when one or more carriers are in the line. Said closure can be constructed and arranged in many ways without departing from our invention, and we show two modifications thereof which work well in practice. A very important result of the operation of the closure of the terminal air-inlet is that the speed of the carrier can never exceed that which attends upon the incoming of the air at such velocity as will close the ter

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minal air-inlet, for should the carrier reach or exceed this speed the terminal air-inlet will be closed, producing a vacuum behind the carrier which will immediately reduce its speed to such degree as to permit the air-inlet to open again, and we can regulate this speed by adjusting the valve at the terminal air-inlet, so as to obviate the danger of accidents when the carrier reaches the despatch outlets, which is a defect in present vacuo systems." The drawings illustrating the patented apparatus are as follows:

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With respect to them the patentees say:

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"Figure 1 is a representation, partly broken and sectioned, of a vacuo sysFig. 2 is an elevation of one form of tem equipped with our invention. terminal air-inlet and closure, and Fig. 3 a view of the valve thereof from below. Fig. 4 is a vertical section of another modification of the terminal air-inlet and closure. Fig. 5 is an end elevation, on large scale, of the exSaid figure also illustrates a hauster and engine which drives the same. convenient form of governor for controlling the exhauster according to the varying needs of the line. Referring to Figs. 1 to 3, inclusive, 1 is the line or circuit of tubing, connected in any usual manner with the exhauster 2. For convenience said circuit 1 is arranged as a loop, with the terminal airReferring to Figs. 2 and 3, which inlet 3 near said exhauster 2. illustrate one of said modifications, the terminal air-inlet consists of a cylinder 4, connected with a curved branch 5 of the line 1 by a depending tube 6. In the lower head of said cylinder 4 is an air-inlet opening with a conical valve-seat 8, on which seats a light ball-valve 10 of any suitable material, as The valve-stem 11 is guided through spiders fixed in a thin rubber globe. said cylinder, and a nut on the end of the stem limits the amount of opening of the ball. Fixed on said stem 11 is a circular perforated plate 13, and turning within desired limits of motion on said stem in contact with said plate 13 is a similarly-perforated damper 15, the degree of opening of said damper being limited by a pin working in a slot 17 in the hub of said damper 15, it being understood that said plate 13 has all but an air-tight fit in the cylinder 4, and just so as not to touch the periphery thereof. Thus by adjust

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