Aeroil Burner Co. v. Littleford , 15 F.2d 256 ( 1926 )

THACHER, District Judge.

Upon motion to dismiss for lack of jurisdiction of the person, jurisdictional facts may be controverted, although alleged in the bill of complaint. Miller v. Minerals Separation, Ltd. (D. C.) 275 F. 380. The question cannot be presented by answer, because that would waive it. Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237. If within the rule in Tyler Co. v. Ludlow-Saylor Wire Co., 236 U. S. 723, 35 S. Ct. 458, 59 L. Ed. 808, Westinghouse Electric & Mfg. Co. v. Stanley Electric Mfg. Co. (C. C.) 116 F. 641, and Cutler-Hammer Co. v. Curtis & Carhart (C. C. A.) 296 F. 117, the court is without jurisdiction of the defendant Gumming, that question should now be determined. Reference will therefore be made to J. Hampden Dougherty, Jr., to hear, determine, and report (1) whether or not the defendant Charles R. Cumming is an inhabitant of the Southern district of New York; and if he is not such inhabitant, (2) what acts, if any, of alleged infringement were performed by him in said district prior to the service upon him of the amended bill of complaint herein, the nature of all such acts, and their relation to any sale in said district of any article which is claimed by the plaintiff to infringe letters patent of the United States, No. 1,574,489, granted February 23, 1926, to George P. Kittel; and (3) whether or not this court has jurisdiction of the person of said defendant.