Hyatt vs Ingalls and Mark · 1887

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Hyatt vs Ingalls and Mark · 1887
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SUPERIOR COURT

OF THE CITY OF NEW YORK

GENERAL TERM.

ELIZABETH A. L. HYATT,
Respondent and Appellant,

against

JOSHUA K. INGALLS and JACOB MARK,
Respondents and Appellants.

Plaintiff's Points

Statement.

In 1867 a patent was issued to the plaintiff for (in the language of the patent) "Illuminated Basements and Basement Extensions."

The patent was re-issued in August, 1878, and again in September, 1881.

By an agreement dated Nov. 21st, 1878 (Exhibit A, pp. 9 to 13 of Case), the plaintiff agreed to license the firms of Ingalls & Mark, J. B. and J. M. Cornell, and Barlett, Robbins & Co., to manufacture and sell within certain territory named, the articles covered by the patent of 1867, as re-issued in 1878, and at the same time granted to each of the said parties a license in pursuance of said agreement.

The plaintiff, Mrs. Hyatt, agreed therein not to carry on the manufacture of articles covered by the patent, and not to grant any other license without

the consent of the firms above named. The license is set forth on pp. 13 to 15 of Case, Exhibit B.

These persons mentioned in the said agreement manufactured and sold the said illuminated work and paid royalties therefor until some time in the year 1879, when controversies arose between them and the plaintiff, resulting in a series of actions, all of which were withdrawn and settled, and the said parties thereupon entered into a further or supplementary agreement re-affirming the agreement of 1878.

Under this, royalties were paid by the defendants down to August 1st, 1881. A statement for the quarter ending November 1st 1881, was rendered, but the royalties then due were not paid.

This suit to compel payment of royalties was brought in October, 1882. Defendants, among other defenses, set up the invalidity of the re-issued patent of 1881, on the ground that it was for a different invention from that of the patent under which they were licensees.

The Court held that the defendants operating under the license and having in their license admitted the validity of the original patent and consented to its re-issue when and as often as the patentee might choose, were estopped from calling in question the validity of the 1881 re-issue, and that the plaintiff was entitled to judgment against the defendants for the amount by their last returns shown to be due. The Court also directed the accounting for all illuminating work, embracing "improvements secured to the plaintiff by her said Letters Patent of the United States, numbered 68,332, and the re-issues thereof, manufactured and sold by them, to others to be made, used or sold, since the first day of November, 1881, according to the terms and provisions of the said license granted by the plaintiff, an dated November 24th, 1878, and it is hereby referred to Randolph B. Martine, Esq., counsellor-at law, to take and state said account,

and to ascertain, determine and report to this Court the amount due the plaintiff, with interest, by the defendants, and each of them, for royalties for all said illuminating work manufactured and sold by them, or either of them, since the first day of November, 1881, at the rate of thirty cents per square foot of said illuminating articles so manufactured and sold."

The interlocutory judgment was, upon appeal, modified by striking out the injunctive clause in the decree and limiting the accounting to the date of the interlocutory decree, and, as modified, affirmed.

Hyatt vs. Ingalls, 49 Superior Court, 375.
Affirmed against another licensee, 106 N. Y., 651,
and again in the Supreme Court of the United States,
October Term, 1887.

Hon. R. B. Martine was appointed the Referee to state the account, and the reference upon the accounting proceeded before him, after the decision of the General Term, until the 31st day of December, 1887, when he made his report.

The defendants were under the modified judgment of the General Term ordered to account for the period between Nov. 1st, 1881, and April 27th, 1883. They filed an account consisting of six items, and embracing in amount not as much work as they had formerly admitted in their quarterly returns for a single quarter of three months (see defendants' account, p. 229 of Case).

The plaintiff excepted to the account and claimed that the defendants should also account for the items appearing upon Exhibit "B," pp. 300 to 304 of Case. Before the case was submitted the plaintiff further surcharged the defendants' account (p. 429 of Case) by claiming that the defendants were liable for the items appearing upon Exhibit "A," pp. 293 to 300 of Case.

The plaintiff then compelled the defendants to produce their books before the Referee.

These books showed simply the amount of tile made and for whom, but not in any way how they were used, and as to the greater part of the items contained in these books the defendants stated they did not know for what the tile was used, but they admitted it was adapted for basement extension (see transcript for the defendants' books, pp. 292 to 304 of Case).

The Referee found that the defendants were liable for tile forming an illuminate roof covering areas, and also for steps, risers and platforms forming an illuminated roof over an area or extended basement, &c. (see Referee's Report, pp. 468 to 471 of Case).

But the Referee refused to find upon plaintiff's request that the defendants were liable to account for what is called "glazing," or for tiles manufactured and sold by them to others to be used, said tiles being adapted to be used for illuminating roofs or areas or basement extensions, and the defendants not having shown that they were not so to be used (see plaintiff's requests to find, p. 465; and exceptions thereto, pp. 475 and 484 or Case).

The defendants also excepted to the Referee's report, but the report was confirmed in all respects by Mr. Justice Freedman (see final decree), and both parties have appealed from the said decision.

POINT I.

The findings of the Referee that the defendants should account for illuminating roofs over areas as well as for risers, &c., was proper. It may be well to give a brief review of Hyatt's invention.

HYATT'S INVENTION.

The invention which forms the subject-matter of the patent of 1867 is, as the title declares, an "Illuminating roof and roof-pavement."

The object of the intention, as set forth in the patent, is to make a combination of iron and glass with pavement quality; that is to say, strong enough to be walked upon when employed to cover openings made to take light vertically from the sky.

The construction termed a "skylight" is not in the true sense of the word a roof; it is simply a glass curtain to shut out the weather.

The invention contained in the patent was made with reference chiefly to the large merchant warehouses of New York that cover the whole lot of ground on which the building stands.

In these warehouses the ground floor, which is entered directly from the sidewalk, is the chief and most valuable story of the building. It covers the entire lot, leaving no light space for windows at the rear. To get light the upper stories are set back, in some cases as many as fourteen feet. This leaves a clear sky-opening, and makes what is called the "rear extension" of the ground floor. If additional light it wanted at the centre of the store, it comes from a skylight at the top of the building through well-holes cut in the floors of the upper stories.

The basement is the dark room of the building; that is, it was before Hyatt's invention. There was

no such thing as illuminating roof pavements known, and the only daylight that entered the basement was the little that came from the sunk area in front of the doorways.

To make an entrance to the doorways over the sunk area from the footway of the street, without cutting off the whole of the light from the basement, the custom was to cover it with open iron gratings. But these open gratings could not properly be called roofs, as they let in rain, dirt and snow.

The sky openings in the roofs of buildings were practically open holes, for the "skylights" were no protection against fire, or danger to life or limb. In no proper sense, therefore, could a skylight be called a roof, for ordinary roofs bear weight enough to be safely walked upon. The skylight was never designed to bear any considerable amount of weight, and never made to be walked upon.

It was possible, before Mr. Hyatt's invention was made, to extend the ground floor at the rear, because skylights were admissible for this use, notwithstanding their unprotected character.

Hence, in skylight days, it happened that while the ground floor was extended at the rear, and lighted by vertical light through a sky opening, and thus well lighted, the basement story under it, cut off from all light at the rear, and with but little from the sunk open area at the front, was a dark room that required gas even in the day-time, and was hence but a little value beyond a storeroom.

Hyatt's invention did not make the extension of the ground floor any more possible or practicable than it was before. All it did was to make protection against fire and create safety, where before there was none; but for the basement it made regeneration. It made is possible, for the first time, to reconstruct the old storage or lumber room into a first class salesroom.

In brief, Hyatt's invention was an illuminating

roof composed of glass and iron, of such strength as to permit its being walked upon.

See claims 1867 Patent, especially claim 6, page 37 of Case.

Claims 1878 Reissue, especially claims 1 and 2, p. 45 of Case.

Claims 1881 Reissue, especially claims 5, 6 and 15, pages 60 and 62 of Case.

The attempted distinction which the defendants have sought to make between an area and a basement extension is a purely fictitious one. An "area" is a basement extension. The defendants' own witness, French, testifies that "It is the same thing" (fol. 1267, p. 423 of Case). The defendants substantially admit it (p. 307 of Case). But whether or not there be any distinction between these area and basement extensions is immaterial. The Hyatt patent covers an illuminating pavement roof for so-called areas as well as for so-called basement extensions.

It is hardly for a roof-pavement, that is to say, a surface of glass and iron suitable for being waked upon. The patent itself recognizes and sets forth in its specification the prior state of the act and gives a history of the difficulties which Mr. Hyatt encountered before perfecting his invention (fols. 92-99, pp. 31-33 of Case).

Mr. Hyatt was lawfully entitled to this experimental period here recited from 1852 to 1856 when his application for patent was filed. That the issue of the patent itself containing such recital, is evidence of such fact. And the Supreme Court of the United States in the case of the City of Elizabeth vs. American Nicholson Pavement Co. (7 Otto, 126) expressly held that the public experimental use of an invention to its its qualities or remedy its defects, for more than two years prior to the application for the patent, did not invalidate such subsequently granted patent.

The specification in Hyatt's patent also points

out clearly the difference between Mr. Hyatt's 1845 patent and the patent in question (p. 33 of Case).

Mr. Hyatt says, in the specification of his patent:

What I mean is, that until I did it, no area way was ever covered "by glass and iron combined to form substantially a portion of the sidewalk itself."

The claims of a patent are what govern (Smith vs. Elliott, 9 Blatch., 400; Meissner vs. Defoe Mfg. Co., Id., p. 363), and in the original patent of 1867 and in each of its re-issues of 1878 and 1881, we find the broad claim made to an "illuminating roof" pavement.

Thus claim (6) six of the original 1867, is:

"I claim broadly as my invention, an illuminating roof of iron and glass, where the iron which supports the glasses in position forms the general strength of the roof, the combination being such as to secure the twofold object of equalizing and distributing the strength of the iron which distributing and equalizing the light of the glasses" (p. 37 of Case).

In the first re-issue (that of 1878) claims 1 and 2 are as follows:

1. An illuminating roof constructed of iron and glass upon or according to the principle of an illuminating grating, substantially as herein set forth.

2. Illuminating roofs constructed by forming illuminating gratings into panels or plates of suitable shapes, sizes and proportions to be mechanically fitted for combination with each other, and combining the same by means of supports of framing, in connection with vertical and horizontal or bed packing and bolting, substantially in the manner and for the purposes as herein set forth and illustrated by the drawings (p. 45 of Case).

And in the next and last re-issue (that of 1881) claims 5 and 15 are as follows:

5. Illuminating roofs and roof pavements as building appliances, formed by combining perfected vault covers or illuminating tiles as a new building material, substantially as and for the purposes herein set forth and illustrated (p. 60).

15. An illuminating roof of metal and glass, where the metal surface or plate that carries the glasses, and in which they are fitted and made water-tight, forms the general strength as well as roof surfaces, in combination with the rafters, supports or framing, the construction being such as to secure the twofold object of equalizing and distributing the strength of the iron while equalizing and distributing the light of the glasses substantially as herein set forth and illustrated (p. 2 of Case).

THE LICENSE.

The defendants obtained a license from the plaintiff in November, 1878, to make and sell illuminating work for illuminated basements, under the 1867 patent as re-issued in August, 1878. The defendants agreed to pay the plaintiff a certain sum "for each square foot of superficies in any and all illuminating grating made by them to be used" for illuminated basements, which they should make or sell under this license (see Article 4 of said License, p. 14 of Case).

They also agreed to make payments at the end of each quarter for all illuminating work which they should have made and sent away from their premises during such quarter, to be used for the purpose of making illuminated basements (see Article 5 of said License).

Controversies afterwards arose between the licensees and plaintiff, resulting in a series of actions,

all which were withdrawn and settled, and a supplemental agreement reaffirming the agreement of 1878 (but permitting the plaintiff to license a new party, to wit, "The Dale Tile Manufacturing Co.") was made (Plff.'s Ex. E., pp. 106 to 109).

THE DEFENDANTS' THEORY.

The defendants admit that they must pay royalty for what they term basement-extension work, which they constructed, but they claim they are not to pay on illuminating basement roofs unless the basement is extended clear out to the curb line.

They are not willing to pay on a short extension or basement extended to the area wall.

By this absurd theory the defendants declare that even when the basement is extended to the area wall, so that it can receive directly into itself the entire light fall of descending vertical as well as angular rays from the sky, all the light capable of passing through the roof, they are not to account for it, because the basement is nor further extended under the sidewalk proper and covered by granite blocks forming the sidewalk through which granite slabs it can get no light.

What was it that Mr. Hyatt invented? Was it the street wall at the curb? the granite sidewalk? the floor of the principal story? the basement floor? Did he invent the extended space that constitutes the extended basement? No, all this belongs to the architect and the builder. What is there about all this that he did invent? The illuminating roof that lights and makes possible the extension of the basement; and this roof is the same whether the basement extends only to the area wall, or extends clear out to the curb.

The defendants' own witness French testifies that there is difference between illuminating roods for so-called basement extensions, and for so-called area. "It is the same thing," he says.

This is undoubtedly correct and the defendants must pay on illuminating roods where the basement is extended to the area wall as well as where it is extended to the curb line.

The defendants further assert that the claims of the patent for the illuminating roof so far as it relates to areas is void, because the same was in use some years prior to 1867, when the patent issued.

Thus the defendants' witness Case testified that he first knew of such work in 1856 (p. 420 of Case).

Marks testified that he first knew of it in 1857 (p. 432 of Case).

And French (defendants' witness) testified that he first knew of it in 1859 (p. 422 of Case).

All of this testimony is immaterial, and the dates even of such knowledge are subsequent to date of filing of Hyatt's application for a patent.

The application for Hyatt's 1867 patent was files in 1856 (fol. 1238, p. 413), and the delay between the date of filing and the date of issue was the delay of the patent office and not of Mr. Hyatt.

The defendants' returns to plaintiff under the license and supplementary agreement are in evidence for the quarters ending February 1st, 1879, August 1st, 1879, February 1st, 1880, May 1st, 1880, November 1st, 1880; amended returns quarter, May 1st, 1881, August 1st, 1881, and November 1st, 1881 (pp. 367 to 379 of Case). By far the largest portion of the items thus returned are for what the defendants now term "area" coverings, and which they now claim they are not obliged to account for.

See Hyatt's testimony on this point, which is not impeached or contradicted by the defendants (pp. 356, 357, 363, to 367 of Case), and the Referee has so found (fols. 1408 and 1409, p. 470 of Case).

The subsequent acts of parties, with reference to the construction of a contract, are controlling upon them.

POINT II.

The defendants are liable to account for all tiles adapted for covering basement extension, and manufactured and sold by them or manufactured and used by them, which they have not shown were actually used for purposes other than basement extension, or how such material was to be used.

See plaintiff's requests to find, and exceptions.

The defendants testified, as to this class of material or tiles, that they did not know how they were used, and they failed to show and did not even attempt to show that they made any effort to ascertain how the tile was used. They simply said "don't know," and the Referee held that the burden was upon the plaintiff to show that the tile was actually used for basement extension before the defendants could be made liable.

We claim that this is error.

See requests and refusals to find.

The defendants were obligated to know how the tiles were used, and it having appeared that tiles adapted for basement extensions were made and sent away by the defendants, the burden of proof was then cast upon them to show in what way they were used. Failing to do this they were liable as if the tiles were actually used for basement extension. The books produced, under subpœna duces tecum, gave no information whatever as to the character of the work and it may be truly said that the books gave no information whatever except as to the

dimensions of the tile and the names of customers.

Rubber Co. vs. Goodyear, 9 Wallace, 804.
Walker on Patents, Section 719.

An infringer is as to profits realized treated as a trustee upon an accounting.

Root vs. Railway Co., 105 U.S., 214.

The defendants, under the provisions of the agreement in evidence, were, as to royalties, trustees upon an accounting.

Under such circumstances it was the duty of the defendants to have kept accurate and intelligible books of account. In this they failed, and they should be held for all the tile.

The following extract from the 36 Maine, 585, concisely states the law on this subject.

"It was the duty of the defendant who claims to have acted as the agent and trustee of the owners to have kept an accurate account of all his transactions with the estate. He had the power and could have so kept his accounts so as to have made all his transactions plain and to have presented his claim upon his principal in such a manner as to preclude all uncertainty as to the rights of the parties. * * * Having no certain and reliable data upon which to proceed, he (the master) was authorized to exercise a sound discretion upon the whole evidence presented, and so to state his account as to do justice to all parties as nearly as practicable. And the defendant who by his negligence has caused this to be necessary is not in a position to complain."

Miller vs. Whilton, 36 Maine, 585.
Lupton vs. White, 15 Vesey, 440.

See also to same effect:

Bowker vs. Dows, 3 Ban. & A., 518.
Alabastine Co. vs. Payne, 27 Fed. Rep., 559.
Travers vs. Beyer, 26 Fed. Rep., 450.
Cotton-tie Co. vs. Simms, 106 U. S., 89.

The mere fact that the defendants did the "glazing" at the request of parties who furnished the iron castings does not exempt them from liability.

Lightner vs. Brooks, 2 Cliff., 287.
Jacobs vs. Commrs. Hamilton Co., 1 Bond, 500.

The defendants should account for all illuminating tiles which they have made, or caused to be made, for so-called area work, or which, being adapted to be used for such purpose, was sold by them.

The cases of 1 Black, 427, and 1st Wallace, 78, cited by the defendants below, have no application.

POINT VI.

The subsequent acts of the parties with reference to the construction of their contract-obligations are controlling upon them.

The Referee has found that the defendants have, prior to this action, been accustomed to account in their quarterly returns for the tiles and the "glazing," as well as for "area work," but refused to find the defendants liable to account, without positive proof as to their use for basement extension.

See his report and plaintiff's request to find.

The practical interpretation which the parties themselves put upon a contract is entitled to great, if not controlling, influence.

Chicago vs. Sheldon, 9 Wall., 50.

When the meaning of a contract is doubtful, the fact that the parties thereto at once adopted a particular construction, and for many years acquiesced

in and acted upon it, should lead a Court without hesitation to adopt that construction as the proper one.

Nickerson vs. Atchison, T. & S. F. R. R., 17 Fed. Rep., 408.
3 McCrary, 455.

Where a railway company was in the custom of making monthly payments to a contractor, such usage being adopted by the contractor, held, that this must be considered to be the rule of payment under the contract established by mutual consent, and binding upon the parties.

Boody vs. Rutland & B. R. R. Co., 3. Blatch., 25; 24 Vt., 660.

Where the terms of a contract subject to different interpretations are construed by the parties thereto, the construction agreed upon is controlling, until mutually revised.

Reading vs. Gray, 37 Super. Ct. (J. & S.), 79.

Parties by their words and acts may, in cases of doubt, put a construction on a contract by which they will be bound.

Stoked vs. Recknagel, 38 Super. Ct. (J. & S.), 368.

See also Matter of Breslin, 45 Hun, 210-215, as to construction of statute.

Where the meaning of a partnership is doubtful, the subsequent conduct of the parties under it is admissible to aid in its construction and to determine the question of intent.

Beachem vs. Eckford, 2 Sand. Ch., 116.

Exhibit A.

MESSRS. INGALLS & MARK:

Gentlemen.—In view of your failure to make returns in writing and payments of royalties to me as required by the license granted by me to you November 21st, 1878, under my patent for Improvement in Illuminated Basement, Basement Extensions, &c., and upon your expressed determination not to make any further such returns or payments, I herewith notify you that I deem the said license forfeited by you and as no longer existing.

Dated New York, January 14th, 1882.

Yours, &c.

E. A. L. HYATT,
by WM. F. SCOTT, her attorney,
40 Wall Street, N. Y.

STATE OF NEW YORK,
City and County of New York,

ss.:

JOSHUA K. INGALLS, being duly sworn, says he is one of the defendants herein; that he has read the foregoing answer and knows the contents thereof, and that the same is true to his knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters he believes it to be true.

JOSHUA K. INGALLS.

Sworn to before me this 21st
day of November, 1882.

M. A. MOSES, Notary Public, New York Co.

SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT,

against

JOSHUA K. INGALLS and JACOB MARK.

I.—The plaintiff above named, as and for her reply to the first counterclaim alleged in the answer, admits that the defendants between the time set forth in the 21st paragraph of the said answer paid to the plaintiff royalties, but denies that the same or any part thereof, after July, 1879, were paid under protest; the plaintiff denies each and every other allegation in the said paragraph contained constituting a counterclaim.

II.—The plaintiff, as and for a reply to the second counterclaim alleged in the answer herein denies each and every allegation therein contained.

GEO. W. VAN SLYCK,
Plaintiff's Attorney,
120 Broadway, N. Y.

City and County of New York, ss:

ELIZABETH A. L. HYATT, being duly sworn, says, that she is the plaintiff in the above entitled action; that she has ready the foregoing reply and knows the contents thereof, that the same is true of her knowledge, except as to the matters therein stated to be alleged upon information and belief, and that as to those matters, she believes it to be true.

ELIZABETH A. L. HYATT

Sworn to before me this 15th
day of December, 1882.

JARDINE LYNG, Notary Public,
Kings County, Certif. files in N. Y. Co.

The issues in this action were brought on for trial before Hon. Judge Truax without a jury at a Special Term of this Court, on the 7th day of March, 1883.

Defendants admitted that since November, 1881, they had manufactured the articles mentioned in the complaint.

Plaintiff, to prove the allegations of the complaint offered in evidence an account rendered by defendants to plaintiff for the quarter ending November 1st, 1881.

Objected to by defendants on the ground that the action is brought for an accounting from and after the first of November, 1881, and, therefore, that an account rendered prior to that date is neither material or competent; also that the same plaintiff has an action pending at common law for the amount of balance found due in that account; objection overruled; defendants excepted.

Admitted and marked Plaintiff's Exhibit A.

Plaintiff's Exhibit A.

Account of Illuminating Tiles used for Basement Extension sold by Ingalls & Mark, 5 Worth street, New York, for quarter ending November 1, 1881:

To whom sold.	Where sent.	Sq. Ft.
C. Vreeland,	City,	31	½
Shapley & Wells,	Binghamton, N. Y.	25
E. L. Cook,	Buffalo, N. Y.	40
Farrant & Co.,	282 Greenwich street,	51	½
E. G. Smyser,	Baltimore, Md.	173	½
C. A. Sneider & Son,	Washington, D. C.	77
S. J. Creswell,	Philadelphia, Pa.	66
E. G. Smyser,	Baltimore, Md.	45
Burnett & Co.,	City,	60
S. J. Creswell,	Philadelphia, Pa.,	15
S. J. Creswell,	Philadelphia, Pa.,	138	¾
G. S. Lincoln,	Hartford, Conn.,	47	¾
E. G. Smyser,	Baltimore, Md.	180
Cook & Radley,	City,	35	¾
S. J. Creswell,	Philadelphia, Pa.	23	½
Gray & Hayes,	Washington, D. C.,	18
C. Vreeland,	42d street and 4th av.	60
A. Hamill,	8th & Grove sts., Jer. City,	140
S. J. Creswell,	Philadelphia, Pa.	51	½
Little & Rowe,	Rochester, N. Y.	172
Wagner & Pfuff,	City,	88
E. G. Smyser,	Baltimore, Md.	23	¾
S. J. Creswell,	Philadelphia, Pa.	39	¾
Thomas Burns,	Newark, N. J.	106
C. Vreeland,	City,	46	¾
Cook & Radley,	City,	27
J. E. Wright,	2179 Third avenue.	36	½
Cook & Radley,	City,	125
Wagner & Pfiff,	City,	37	¾
Blake, McMahon & Co.,	City,	19	½
S. J. Creswell,	Philadelphia, Pa.	24
S. B. Ferdan,	745 Sixth avenue,	82

		2,107	¾
	At cents	30

New York, Nov. 7th, 1881.		$632.32

City and County of New York, ss.:

JOHN W. MARK, being duly sworn, deposes and says, that the above statement is true and correct to the best of his knowledge and belief.

JOHN W. MARK.

Sworn to before me,
Nov. 10th, 1881.

HENRY HOYT, Notary Public, N. Y. Co.

Plaintiff also offered in evidence Letters Patent issued to plaintiff in 1867 and 1878, which were marked respectively Plaintiff's Exhibits B and C.

Plaintiff's Exhibit B.

UNITED STATES PATENT OFFICE

Thaddeus Hyatt, of New York, assignor, to Elizabeth Adelaide Lake, of New York. Improvement in illuminating roofs and roof pavements. Specification forming part of Letters Patent No. 68,332, dated Aug. 27, 1867.

To whom it may concern:

Be it known that I, Thaddeus Hyatt, a citizen of the United States, State of New York, now domiciled at Atchison, Kansas, have made certain new and useful improvements in constructing and combining my patented illuminating vault covers so as to form roofs, by the combination of such strength as to be also suitable for sidewalks—that is to say, where the sidewalk serves as a roof to an underground room.

By the term "sidewalk" I mean to include also the stoop or covering to the area or area-way that lights the basement, the purpose the invention being to change the use of the space underneath sidewalks from coal-vaults to finished apartments capable of becoming a portion of the basement. This purpose I effect, mainly, by the area, which, by the old method of building, was a chasm to separate but by my method becomes a bond to unite the two; and this bond is effected because my illuminating-roof to the area is also a roof-pavement—that is to say, a surface of glass and iron suitable for being walked upon.

I do not claim to be the first to enlarge a basement by taking into it the area-space, nor the first to incorporate the area-space into the basement by a glass covering; but I do set forth as my invention that my glass covering does not barricade the doorways of the building. My glass covering is in the nature of a bridge instead of a barricade—that is to say, it joins the sidewalk to the building, and this keeps the communication open from the street to the doorways. This feature will be better understood by considering the condition of the art as I found it. The only actual basement extension which I found when I began my improvements was where the area-way alone was taken into the basement, not the vault beyond it, and this area was covered by a skylight, and this skylight was above the level of the street, and then the whole thing was cut off from the sidewalk by an iron railing. This was the state of the art as I found it. Now, a skylight is merely a shield against the weather—a covering to an opening in a roof, as a vault-cover is to a coal-hole in the sidewalk. Neither is incorporated into its support in such way as to become a part of its general strength. The iron railing to the skylight which covered the area-way above alluded to proves the weak and dangerous character of such structures. Their insecurity in roofs of buildings has also been fatally proven in New York

on several occasions, where intrepid firemen have lost their lives, while their utter uselessness as protection against fire, or, rather, their dangerous character as exposing premises to fire, led the fire-insurance companies of New York to put a heavy extra-hazardous premium on all warehouses where they were in use; but in the same book this extra premium on skylights was printed stood the following: "No extra charge where Hyatt's roof-lights are employed." The skylight to the area-way of the basement above spoken of was made by setting the sashes on an incline against the building, their lower edges being fastened to the area-coping, and their upper edges to the face of the wall against which they were supported. The arrangement was therefore in the nature of a barricade to the doorways of the principal story. All other underground rooms existing at that period, those at the New York Sun buildings included, were simply vaults, and lighted from light-holes. All were apartments distinct from the basements, and none of them were able to add light to the basement, for they had not sufficient light for themselves.

The first thoroughly-lighted vault ever constructed was made so by a sidewalk of my lights, laid by me for the New York Herald building in the year 1850. This enabled me, two years later, to get the opportunity of laying down an actual basement extension, taking in all the space under the sidewalk, and going two stories under ground; but that year, the following, and the next were required in order to perfect the work so as to secure the public confidence, which was accomplished only when, after repeated failures, I at length succeeded in making water-tight joints that would stand both summer and winter and concussions of every kind and constantly repeated.

About the year 1855 my invention began to be regarded by property-holders and architects as an established success. About that time, also, it began

to be stolen. The water-tight joint of which I have spoken was a double or cemented joint, consisting of putty as the lower or horizontal half, and a fusible cement as the upper or vertical half, as will appear more fully in what follows.

In my illuminating-roof I call the gratings "tiles," to distinguish them from "vault-covers," and I call them so also because their function is that of a "covering" to "framing," where the two combine to form a roof. These tiles differ in construction from my vault-cover of 1845, for the glasses in those were confined to their seats by being held between the two metal plates of which the cover was composed, so that to repair one a number had to be disturbed. Moreover, the strength of the grating was divided between the two plates. My tiles are cast in one plate, with the seats for the glasses in the upper face, so as to be entered from the top side, and each glass is held in position by itself by means of the double-cemented joint. In this way I get stronger, better, and cheaper lights than before. I also make the tiles in narrow strips, by which means I secure the least possible thickness of iron consistently with their strength, for the apertures in these gratings being small, the thickness of the tile is a matter of great importance, the spread of the light through them being dependent on their depth as proportioned to their diameters. Narrow tiles are stronger than wide ones of the same thickness, because hot flowing metal chills in proportion to the smallness of its stream and the distance it travels in the flask. Moreover, in constructing an illuminating-roof, where the illuminating-gratings are the covering, and the work is required to have permanent water-tight joints, narrow tiles are better than wide ones of the same thickness, because the supports are thus multiplied, which make a stiffer roof, and renders the water-tight seams less liable to be broken.

When I combine these tiles to form roofs not designed for pavements, I usually make the framing in detached pieces, for convenience of casting and handling; but where I form area-coverings of them, I prefer to make the framing in one casting, the size of areas in general permitting this. Under such circumstances this framing-piece is cast with a border of dead-iron, which forms the boundary of the piece on all sides, like a picture frame, and the inclosed space is at the same time divided into six or more spaces by cross-bars, that are cast with the frame to give it greater strength. The illuminating-tiles are bolted into these spaces each upon a bed of putty, and then the surrounding vertical seam is filled with fusible cement. In this way a double-cemented joint is formed.

The drawings attached to this specification, and which form parts of it, are as follows, viz: A B C D E.

The figures on A represent my illuminating-roof as combined to form an area-light or roof-pavement. Figure 1 is a plan; Fig. 2, a longitudinal section through A a. Fig. 3 is an end view. Fig. 4 shows a section of the frame C", where the tile k k rests upon the putty bed g g, (colored red.) f f show the fusible cement in the vertical seam. c' c'' c'' c''' is the frame, cast in one piece. c' is the front edge. c'' c'' are the ends. c''' is the rear. D D are cross-bars that divide the space into sections corresponding to the illuminating-tiles designed to fill them. d d is the seat or rabbet of the frame in which the tile rests. e e are lugs for the bolts h h. Between the tile and the frame, Fig. 4, Drawing A, g g (colored red) is the bed of putty on which the tile k k rests, and f f is the fusible cement. h h is the bolt that holds k k to the frame c''. i i (colored red) show the putty bed on which the glass rests, and j j show the vertical seam around it, of fusible cement. This figure, 4, Drawing A, is full size. In the plan, Fig. 1, Drawing A, only one space is represented, with an illuminating-tile shown at k.

The glasses are here represented as diamond-shaped; but ordinarily they are circular or hexagonal. F on Fig. 3 is the rising lip at the rear of the frame, (shown enlarged on Drawing E,) to which the lower part of the illuminating-riser is bolted and packed to make a water-tight joint. Drawing E shows how the illuminating-sill, illuminating-riser, and area-light are combined to make tight joints. Drawing B is a sectional elevation of a building, where A is the area-space underneath the area-light A L. V S is the vault-space under the sidewalk S W, here formed of granite slabs. B is the basement. P S is the first or principal story. d s is the illuminating door-sill. r is the illuminating-rider under the door-sill; F, the "rising lip" of the area-light. G is the nosing of the area-light where it sets over the iron riser at the sidewalk. As here represented, the "web" of the iron girder T forms the riser to the area-light. This girder also supports the sidewalk as well as the area-light; but sometimes stone coping is used to inclose the area. In such cases I set the iron frame of my area-light into a rabbet cut in the coping, and bed it on putty and fill the vertical space with fusible cement, bolting the frame to the stone coping at the same time. Drawing C is a front elevation of B, to show the illuminating-risers, and also the levels of the floor of the principal story and of the area-light, and the "pitch" of the sidewalk. Drawing D is a plan at the sidewalk, S W being the sidewalk, composed of four granite slabs, as here shown, A L being the area-light space, and d s the light-space for the illuminating-sills at the doorways. These sills are let into the granite pillars G P and bolted fast to them, as well as to the side walls of the building, and bind the whole together.

Now, although I have made my improvements in the architecture of buildings by means of the very best combination of iron and glass that can

possibly exist, yet I wish it to be distinctly understood that the extension of basements under the street by means of an illuminating-roof pavement is my invention, for a roof-pavement in such a combination of glass with iron as to be fit for being walked upon. What I mean to say is that until I did it no area-way was ever covered, and no basement was ever extended under the street by glass and iron combined to form substantially a portion of the sidewalk itself. The extension, where it did exist, was done only by means of a skylight.

What I claim, then, and desire to secure by Letters Patent, is—

1. Forming the approaches over an area-way to the doorways of a building from the sidewalk by means of a solid translucent bridging of iron and glass, which serves the double purpose of stoop and roof, substantially as herein described.

2. Uniting the area-way to the basement of a building by a water-tight roof of iron and glass, so combined as to form a generally-flush surface fit for walking upon, and laid in or nearly in the plane of the sidewalk, substantially as herein set forth.

3. Uniting the basement of a building to the space under the street my means of a translucent water-tight roofed area-way, when the glass and iron which compose the roof are so combined as to form a generally-flush surface fit for walking upon, and are laid in or nearly in the plane of the sidewalk, substantially as herein set forth.

4. Combining an area-light with the sidewalk and a building by means of a double-cemented joint made with putty of its equivalent and fusible cement, substantially as herein set forth.

5. Combining the glass of a roof-light with the iron framing of the same by means of a double-cemented joint, substantially as herein described.

6. An illuminating-roof of iron and glass, where the iron which supports the glasses in position forms the general strength of the roof, the combination being such as to secure the twofold object of equalizing and distributing the strength of the iron while distributing and equalizing the light of the glass.

7. An illuminating step-roof composed of glass and iron—that is to say, where the iron and glass are composed into illuminating-sills and illuminating-risers, and these are again combined to form an illuminating-roof, substantially in the manner and for the purposes set forth.

THADDEUS HYATT.

Witnesses:

W. W. HYATT,

ALFRED L. WYNANS,

Plaintiff's Exhibit C.

UNITED STATES PATENT OFFICE

Thaddeus Hyatt, of New York, N. Y. Assignor to Elisabeth Adelaide Lake Hyatt (late Elizabeth Adelaide Lake), of same place.

Improvement in Illuminated Basements, Basement-Extensions, Sidewalk, Roofs, &c.

Specification forming part of Letters No. 68,332, dated August 28, 1867; Reissue No. 8,363, dated August 6, 1878; application filed October 23, 1874.

To all whom it may concern:

Be it known that Thaddeus Hyatt, of the city, county and State of New York, formerly of Atchison, Kansas, did make certain new and useful improvements in illuminated basements and basement-extensions, made by constructing and combining his patented illuminating vault covers equivalent combinations of glass and iron, in connection with supports and framing, so as to produce, by the combination, roof of such strength as to be suitable also to be used as sidewalks—that is to say, where the sidewalk serves the purpose of a roof to an underground apartment, the purpose of the invention where the roof is thus employed, being to enlarge the basement by the addition of the space underneath the sidewalk, and to also get the benefit of its light as a reflecting chamber, lighted, under such circumstances, by a flood of direct vertical light falling into it from the vault of heaven above it.

Another purpose of the invention, as will appear from an inspection of the drawings, is to obtain for the basement a large amount of direct light through the illuminating roof at the doorways of

the building, where the rays of light falling from the heavens enter the basement at the various angles, as shown, the area-covering or illuminating platform in some instances extending into the building at its own level, and forming a portion of the floor of the principal story, and in other cases being formed into illuminating steps, either at its junction with the sidewalk or at the doorway of the building, one or more steps being employed, according to the height of the floor of the principal story above the sidewalk.

In the accompanying drawings the floor level of the principal story is represented as only two steps above the street level, the step from the sidewalk to the platform being, for special reasons, represented as formed by the aid of cast iron, the web of which is employed to do the duty of a riser to the area-covering, the other step—viz., from the platform level to the floor level—being an illuminating step, composed of an illuminating doorsill or tread and an illuminating riser, as represented in the drawings.

His invention of an illuminating roof, made upon the plan of an illuminating grating, or the application of the principle of his patented vaulted cover, has already proved itself so valuable as a protection against fire, in contrast to skylights, as to have induced the fire insurance companies of New York to make special rates against skylights and in favor of his mode of construction, while the application of the principle of an illuminating grating to the construction of steps and area platforms as a means of lighting and enlarging the area of basements, has added millions to the taxable property of all large cities of the country.

His original invention of the illuminating grating in the form of a vault cover was the work of but a single instant of time. His invention of its application to the larger fields of usefulness herein described was the work of years.

His invention of the application of the illuminating grating principle to the construction of sidewalks includes the area covering in the form of the simple platform shown in Figs. 1, 2, 3 and 4, and also when constructed as a stoop—that is to say, with steps, as hereinabove mentioned—the object of the invention being, in part, to change the use of the space underneath the sidewalks or footways of streets from dark, damp coal vaults to well lighted and finished apartments, forming a portion of the basement itself. This purpose he effected mainly by the area, which, by the old method of construction was a chasm to separate, but by his method became a bond to unite, the two.

By the old method of construction, as he found it, the basements of buildings stopped at the face line of the building, the same as the story above it, facing the street, and, like it, was closed between the piers by doors and windows, the area being an open space. The space underneath the sidewalk was occupied as coal vault, and these vaults, at the building side, were bounded by the area wall, the area itself being curbed upon its three open sides. The front curb or "coping" was usually of stone, from nine to twelve inches in width, the width of the area being limited by the perpendicular face of the curb or copying nearest the roadway. In seeking to obtain all the light possible for illuminating the basement, he conceived the idea of getting rid of the stone coping in order to increase the width of the light giving area of the illuminating platform or area cover. Fig. 7, which represents a sectional elevation of a building, shows the plan or method adopted by him to accomplish this purpose, where T is an iron girder laid parallel with the face of the building, the web of which is made use of as a riser to the illuminating roof over the area A. This roof, as represented, is a simple platform with no illuminating steps in front of it, because, as already remarked, he has represented a building where the "level of the floor line of the first or principal

story" is so near the street level as to require no steps except at the doorway. Moreover, his purpose in representing such a building construction is to illustrate a special mode of employing the web of a web and flange girder, to wit.: as a curb to the area space in place of a stone coping, in order to enlarge the light space of the area, the gain in light by this mode being in some cases equal to twenty per cent. of the surface of the whole area. The illuminating step at the doorway, composed of the illuminating sill d s and the riser R, as shown in Fig. 7, (the construction of which is illustrated in Fig. 5,) illustrated his invention in this form and the mode of its application. Where these steps are employed within the building, as represented in Fig. 5, it is evident that the basement B may be made very much lighter by raising the floor level, so as to employ several steps in place of one, as shown.

The invention of the granite roof or sidewalk S is not his in itself. It is how only as any other roof sidewalk connected with the iron girder T, and the illuminating area covering to form the roof of an extended basement is his, as in the construction here shown.

The drawings on the four sheets attached to and making part of this specification represent the improved mode of constructing a building, by means of which the basement is made of nearly or quite equal value, with the first or principal story, its superficial area being very considerably increased, and its light, as improved by him, being sufficient to make it available as a salesroom, whereas, previous to his improvement in its construction, it was but little else than a storeroom, and lighted by gas.

Figs. 1, 2, 3, 4, 5 and 7 show the methods adopted by him in order to make the illuminating construction called "illuminating platforms and steps," the union of which produces illuminating stoops, and the parts of which are illuminating tiles, such

as K, Fig. 1, the connecting or foundation frame of the tiles being indicated by C' C'' C''' on Fig. 1, d being the rabbets or seats in the frame, in which the tiles rest, and e lugs cast on the same for convenience of bolting the tiles to, as shown in cross section, Fig. 4, other features of his invention in the frame being the nosing G and the rising lip F. (Shown in Fig. 3.)

His invention of an illuminating step is illustrated by Fig. 5, where G G' is the tread or sill, a portion only of the tread being shown, and R is the riser, set with glasses r, the appearance of these risers under the door sills of the main openings to the principal story of a building being shown by Fig. 8. Fig. 1 is a plan; Fig. 2, longitudinal section through A a. Fig. 3 is an end view. Fig. 4 shows a section of the frame C'', where the tile K K rests upon the putty or mastic bed g. f f show the vertical seams, the same being made water-tight by means of a fusible cement composed of coal tar and sulphur. C' C'' C''' C'''' represent the foundation or joining frame for uniting any number of tiles, or illuminating gratings, in order to form an illuminating roof or an illuminating roof pavement. This frame he sometimes preferred to cast either in detached pieces or in sections, for convenience of construction.

Between the title K and the frame C'', Fig. 4, g represents the putty or mastic bed upon which K rests, and which is designed to make good any inequalities of surface in the metals. f is the vertical seam of fusible cement. b h are bolts to bind the tiles K to the bed-plate or joining frame. In the plan, Fig. 1, but one opening is represented as closed by tiles, and the glasses are shown in diamond shape; but they are usually made circular. F, Fig. 3, is the rising lip at the rear of the frame (shown more clearly in Fig. 5), to which the illuminating riser R is bolted, as shown, and packed to make a water-tight joint.

All these details, trifling as they may appear, were found by him to be essential to the making of good work—that is, water-tight work—for the whole of his success at the beginning hinged on the one point of water-tight work. Property-owners and architects doubted, during some years of his experiments in the streets of New York, his ability to make water-tight illuminating roofs of iron and glass capable of withstanding contractions of winter, the expansions of summer, the foot-wear of the multitude, and the concussion and vibrations incident to the rough usage to which sidewalks are subjected in a great commercial city like New York. His invention, therefore, like some others where the testing had to be practically made by use in public, required years for its perfecting.

Fig. 6 represents a sidewalk in plain, S. W., composed of four granite slabs, the area light space being left uncovered. G P are granite piers between the openings at the face of the building, into which, upon rabbets, the frames that carry the illuminating sill or treads are supported, as shown by the shaded border around the illuminating space.

Fig. 7 is a sectional elevation of a building where A is the area space under the area light or illuminating platform A L. V S is the vault space under the sidewalk S W, now, by this construction changed into a portion of the basement B, an iron girder T, having been employed by him to carry the sidewalk, S W, and the illuminating platform A L, in place of the old area wall that formerly existed when the space V S was a vault. It is the basement; P S, the first or principal story above the basement; d s, the illuminating door sill r, the illuminating riser under it forming the illuminating door step.

He has shown the girder T as a part of his invention laid as a curb to the area light space, its web forming the riser of the platform; but it is evident that modifications of this plan are admissible and

quite consistent with the principle of enlarging the area-light space by dismissing the old stone coping that formed the finish of the area-wall, the dismissal of the wall itself forming part of his invention as a means of extending the basement under the footway of the street.

The plan he has illustrated by the drawings attached hereto is a method well devised for a store-front twenty-five feet wide; but there are corner buildings where modifications of this plan are sometimes desirable, where, in fact, he found it most convenient to place his iron girders at right angles to the face of the building, resting them, by preference, upon the piers of the walls. In this case he formed the riser to the area-light platform of independent plates, where he bolted to the string-pieces that carry the platform, or form a portion of it as division-bars D. But the lading principles of construction are the same through all variations adopted by him in adapting his invention to the special localities where he employed it, viz.: an illuminating platform composed of iron and glass, connected, in some cases, with the foot-way by means of steps—thus a stoop—and in other cases forming a portion of the general foot-way by lying in the same level; illuminating risers, treads, and sills, forming steps, these steps by their combinations producing in some cases illuminating step-roofs, or a roof composed of steps, and combining the footway of the street or sidewalk with his light constructions as a roof by means of suitable girders, so as to dispense with area-walls, windows, and doors, and thus make one continuous apartment under both the building and the footway of the street, with the result of an amount of light in the basement never before attained, and with the further result of making such basements more healthy and fit for occupancy.

Having thus fully described his invention and shown some of the modifications that may be made

in it without departing from its leading principles, what I claim and desire to secure by Letters Patent, is—

1. An illuminating roof constructed of iron and glass upon or according to the principle of an illuminating grating, substantially as herein set forth.

2. Illuminating roods constructed by forming illuminating gratings into panel or plates of suitable shapes, sizes and proportions to be mechanically fitted for combination with each other, and combining the same by means of supports or framing, in connection with vertical and horizontal or bed-packing and bolting, substantially in the manner and for the purposes as herein set forth, and illustrated by the drawings.

3. Illuminating risers and treads, and illuminating steps composed of illuminating risers and treads, constructed of iron and glass according to the principle of an illuminating grating, substantially as herein set forth.

4. Illuminating step roofs, constructed of illuminating risers and treads, formed, shaped, and proportioned to be mechanically fitted for combination with each other, and combining the same by means of supports or framing, in connection with vertical and horizontal or bed packing and bolting, substantially in the manner and for the purposes as herein set forth, and illustrated by the drawings.

5. Illuminating stoops, constructed of illuminating platforms or flat surfaces, in connection with illuminating steps constructed of iron and glass, substantially as herein set forth.

6. Illuminated basements and basements extended underneath the footway of a street by means of a

flat roof or sidewalk, in connection with and by means of illuminating gratings, constructed and combined substantially in the manner and for the purposes as herein set forth, and illustrated by the drawings.

In testimony whereof, I have hereunto set my hand, this 30th day of September, 1874.

ELIZABETH ADELAIDE LAKE HYATT.

Witnesses:

W. I. DIXON,

CHARLES D. BULLEY,

Plaintiff also offered into evidence Letters Patent purporting to have been issued to plaintiff September 21, 1881.

Objected to by defendants, on the ground that said last named Letters Patent were not declared upon in the complaint; objection sustained.

Plaintiff then moved for leave to amend the complaint by inserting the words "and reissued September 27, 1881, No. 9,883."

The amendment was allowed, and leave was also granted to defendants to amend their answer by inserting as follows: "The defendants, answering the amended complain of the plaintiff, allege that the reissued patent of September, 1881, is invalid and void, for the reason that it claims more than the patent of 1878; and that its descriptions and specifications do not correspond with those of the patent of 1878; and that it also omits specifications and claims made in the patent of 1878. And further answering, defendants say that the Court has no jurisdiction over the issue thus raised."

Plaintiff then again offered in evidence said Letters Patent of September 21, 1881.

Defendants objected on the ground that plaintiff could not prove a reissue without having proved a surrender of the previous patent of 1878; objection overruled; defendants excepted.

The Letters Patent were admitted, and marked Plaintiff's Exhibit D.

Plaintiff's Exhibit D.

UNITED STATES PATENT OFFICE

Thaddeus Hyatt, of New York, N. Y., assignor to Elizabeth A. L. Hyatt, (lake Elizabeth A. Lake), Illuminating Roof and Roof Pavement. Specification forming part of Reissue Letters Patent No. 9,883, dated September 27, 1881. Original No. 68,332, dated August 27, 1867. Reissue No. 8,363, dated August 6, 1878. Application for reissue filed September 5, 1881.

To all whom it may concern:

Be it known that I, Thaddeus Hyatt, late of Atchison, Kansas, but now of the city, county and State of New York, have made certain new and useful improvements in illuminating roofs and roof pavements, made by constructing and combining my patented vault covers so as to form roofs by the combination of such strength as to be suitable for sidewalks—that is to say, where the sidewalk serves as a roof to an underground room—of which the following is a specification.

The actual invention—viz., an illuminating grating, made by me and patented 12th November, 1845—was really a new building material, but as invented at the time was applicable to no other purpose other than a vault cover or coal hole plate, because, first

of its heavy dead-iron border; second, its shape; and third, its imperfect mechanical construction in laminæ or layers with the glasses held between the plates, but from its nature capable of being made into a new and useful building material of great value.

My improvements, set forth in the following specification an drawings consist, first, in perfecting the mechanical construction of the vault cover in the following particulars, viz: as to making it of a single plate instead of laminæ or layers, as to entering the glasses from the weather face of the grating, as to fixing each glass independently of every other in the grating, and as to fastening the glasses in the vault cover or grating, by means of an instantaneously setting cement, which I call a "double-cemented joint"; second, converting the perfected vault cover into an illuminating tile or building plate by the removal of the superfluous portion of its dead-iron border; third, combining the perfected vault covers in tile form with framing into enlarged or extended illuminating surfaces, as building appliances in architectural constructions; and, fourth, combining the perfected illuminating building appliances with buildings to enlarge the illuminate the structures, make safe as foot surfaces the illuminating portions thereof, and protect the premises against fire and burglary.

The drawings making part of this specification are letters A B C D E on Sheets 1, 2, 3, 4, and the improvements they illustrate are shown by figures 1, 2, 3, 4, 6, 7, 8.

Perfected vault covers as building plates and appliances.—(Drawings A and E.)—Letters K on Drawing A, Sheet 1, represents, in plan, the perfected vault cover in single plated grating or tile form, shaped as a long and narrow panel, in combination with the frame, the method of making the union being shown in cross section in Fig. 4, where f g represents a double cemented joint, Fig. 1 representing an illuminating roof construction made

of flat plain tiles, and Fig. 5, Drawing E on Sheet 2, representing the tiles in cross section, where they are shaped and adapted for making step roofs, the tiles being formed as treads and risers, the tread, where employed in doorways, as in Fig. 5, becoming an illuminating sill, making with the riser and area light shown in Fig. 5 an illuminating stoop, this stoop forming an illuminating roof, as may be seen in Fig. 7, Sheet 3, to the sunk area, and a source of light as well to the basement and its extension under the sidewalk, as represented in Drawing B, Sheet 3, where the sidewalk is formed of granite slabs (represented in plan on Drawing D, Sheet 2).

Fig. 1 represents a heavy cast iron frame, C' being the front, C'' C'' the ends, and C''' the rear or the frame, the average width of the dead iron border at front and rear being about three inches, and the width of the ends depending on whether they are employed as coping or not. The illuminating roof is formed in combination with such a frame when to be used as a stoop or area covering. Where a frame twenty-five feet long is required I usually cast it in sections, halving the ends of the sections together where they meet, so that when the whole is complete the appearance is like as if it had been cast in one piece, as shown in Fig. 1. The object of this frame in making store front work is to not only make finished and handsome work, but by means of the nosing, water back, and cross bars, with their lugs, to furnish the means of making water tight work able to withstand the hard usage to which store front are subject from the casks and heavy packages of merchandise thrown down upon them and tumbled over them. D D are the cross bars that divide the area space into sections of a width suited to the width of the tiles, such widths being of preference not greater than twenty inches, each tile filling one space, the length of the space being equal to the width of the area

d d are seats in the frame and cross bars to receive the tiles, d d representing the bottom flanges of the cross bars, as represented more plainly in Fig. 2, where k k shows the blades or webs of the cross bars or beams, D representing the whole bar or beam. The lugs e e are designed for the bolts h, (shown in Fig. 4). F, at the rear of the frame, (better seen in Fig. 3,) is a nosing. The light spaces represented in Fig. 1 are seven in number, of which only the center one has a panel in it. This panel or tile is indicated by the letter K, in which the glasses are indicated by the letter N.

Fig. 2 is a longitudinal section of Fig. 1 on the line A a. The letter D is designed to indicate the entire cross bar, as already said; d, the bottom flange, and k the web.

Fig. 3 is a cross section of the frame. The letter l, at the bottom of the nosing G, is an overlap or drip to cover a joint and prevent leakage, (shown plainly in Fig. 5) and F is the water back for a like purpose, also plainly represented in Fig. 5.

Fig. 4 represents a portion of the frame and also a portion of the tile, the object of the drawing being to illustrate the perfected vault cover as a single plate grating or tile, show the opening for the glasses made to admit them from the weather face of the tile, each one held in place by itself and capable of being removed at any time without disturbing the others, show the double cemented joint used to fix each glass in place, as well as to show how the same kind of a joint is employed with bolts to join grating to grating on bearers or cross bars or parts of a frame, or whether they be independent pieces, like the rafters of a roof.

In Fig. 4 a sufficiently large piece of a tile, K, is shown along with a sufficiently large piece of a frame, to represent fully the mode of making a water tight joint, and at the same time to illustrate the mode of fixing glasses in the grating, C'' being

the frame; K, the tile; N, the glass; f g, the double cemented joint in connection with the bolt h, and the lug e representing the mode of making tight joints between tile and frame, f representing the vertical seam of fusible cement and g the putty bed (colored red), the joint around the glass N being of the same materials, but the fusible cement here being indicated by the letter j and the putty by the letter i, the cement, here called "fusible," being a mixture of coal tar and sulphur when hot, but having the property of instantaneously setting or cooling, and thus fixing the glass in its seat immediately. The double cemented joint is designed for work liable to have water standing upon it in pools and for a long time, such as the flat surface of area lights: but for work in vertical planes, like riser work, I adopt the method illustrated by the rising lip F and the drip l on the nosing G, as shown in the step roof construction in Fig. 5.

Fig. 5, Drawing E, Sheet 2, represents my method of making illuminating step roof, where it may be desirable to form the same in the form of a light of steps, or where, as in stoop construction, the only illuminating step may be the sill step at the doorways of the building.

Fig. 5 illustrates a sill, a riser, and an area light as to the mode of uniting them; and Fig. 7, Drawing B, Sheet 3, shows the construction when in position as a portion of the building, the manner of securing a tight joint where the sill nosing overlaps, the riser being shown by the drip l on this nosing G, Fig. 5, and the manner of securing a water tight joint by the aid of the rising lip F being shown in Fig. 5, where the area light is joined to the riser. Drawing E represents the rising lip F as though cast upon the illuminating tile. This is not the usual way. Of preference I cast it upon the frame, as shown in Fig. 3, on Sheet 1.

In the construction shown in Fig. 5, section of area light and section of illuminating sill shown the flat work, where the double cemented joint

illustrated in Fig. 4 is employed, while the illuminating riser represents the perpendicular work, wherein the rising lip and nosing overlap construction is relied on for tight work, the vertical seams being usually made good with putty or red lead.

The sill riser represented in Fig. 5 may be seen to good advantage on Sheet 4, Fig. 8, Drawing C, where a front view of the riser is given, and where the light-holes are represented as of a diameter nearly equal to the depth of the riser, this depth varying from three to eight inches, the glasses being correspondingly small or large, the size of the glasses in my perfected vault covers or tiles being in all cases regulated by the uses of the tiles and their localities. In the tops and rear extensions of buildings, where the illuminating roof is designed to be protect the premises against fire, as well as burglary, I employ glasses preferably not over four inches diameter, usually making use of three-inch diameters, while in store floors I sometimes employ glasses nine inches in diameter, because all, or nearly all, the light that falls upon is vertical, whereas, where the light of the heavens can be had at all angles, glasses of two inches are capable of letting in all the light required; and, as in foot pavements, a multitude of feet pass over them, some of them being the feet of children, I make the glasses of vault covers for sidewalks, of preference not more than two inches in diameter. I make them small, also, in stoops exposed to hard usage; but in others, not so exposed, the glasses may be larger.

Improvements in buildings.—(Drawings B, C, D.)—Figs. 6, 7, 8 on sheets 2, 3, 4 illustrated my improvements in buildings, the chief feature being my invention of an enlarged basement by taking in the space underneath the sidewalk beyond the sunk area, an important part of my invention being the employment of an iron girder as a substitute in place of the area wall, the web of the girder

being employed as a riser for the area light, thus increasing the light space of the area from ten to twenty per cent.

Fig. 6, Drawing D, Sheet 2, represents, in plan, four granite slabs (seen in cross section in Fig. 7, Sheet 3), as constituting the footway of the street, and at the same time the roof the under sidewalk room or extension of the basement. The design of the construction is to unite a flat-roofed sidewalk with the area light and the door sills as one continuous, water-tight roof to the portion of the basement extended out underneath it, saving the expense of doors and windows between the granite piers, making the whole space into one well-lighted apartment, so that as a roof the stoop and street footway become portions of the building, all which I accomplish by means of the detailed portions of my invention hereinabove set forth and illustrated—the double-cemented joint, bolting and bedding of the tiles, the rising lip, and the nosing with its drip—and putting all together as building construction, combined with the iron girder mentioned. In effecting all this, I employ at the doorways the sill frames, d s, which, at their ends, are let into the granite piers, G P, as shown in Fig. 6, and bolted fast, both to the piers and side walls of the building, interlocking the whole, so that when the illuminating riser is in place and bolted fast to the sill in manner as represented in Fig. 5, the riser running across the face of all the piers, and being in length equal to the width of the building, as shown in Fig. 8 on Sheet 4, and the area light or stoop is then bolted fast to the sill riser, as shown in Fig. 5, and the area light is fastened to the iron girder, T, as shown in Fig. 7, on Sheet 3, where the nosing of the stoop overlaps the riser web of the beam, and the granite slabs are in turn connected with the iron girder, T, by resting the bottom flange of same; and, having all its joints made water tight, a complete and perfect water-tight roof is made over the extended basement.

Fig. 7 shows the area light roof in the position as a connection between the granite sidewalk and the doorways of the building in the nature of a translucent bridge, P S being the ground floor or principal story; f, the floor, showing its level above the sidewalk; B, the basement; A, the area; V S, the vault space; T, the iron girder laid parallel with the face of the building; W, the web of the girder, here shown as the stoop riser. The dotted lines represent the light rays, that enter the basement as angular direct rays from the white walls of the chamber under the sidewalk.

Fig. 8, Drawing C, Sheet 4, represents the front of a building where the space between the piers is open, and is designed by showing the pitch of the sidewalk to illustrate the use of the iron girder T and the mode of its construction under such circumstances, which is to make the web of the girder greater in depth at one end than the other, the difference between the level of the area light and the pitch where it is greatest showing the difference in the depth of the web of the girder between its ends, the level for the area light where it rests upon the top of the web of the girder being horizontal, and the level where the granite slabs rest upon the bottom flange of the girder being inclined to this.

The purpose of this part of my invention is to change the use of the space underneath the sidewalk (where is can be mostly easily lighted) from coal vault (which can as well be made in the dark portions of the building) into finished apartments, capable of becoming a portion of the basement and valuable as a salesroom. This purpose I effect mainly by the area, which, by the old method of building, was a chasm to separate, but by my method becomes a bond to unite the two, and this bond is effected because my illuminating roof to this area is also a roof pavement—that is to say, a surface of glass and iron suitable for being walked upon.

I do not claim to be the first to enlarge the basement by taking into the area space, nor the first to incorporate the area into the basement by a glass covering; but my construction does not barricade the doorways of the buildings. It is rather a bridge than a barricade, for it joints the footway to the house and keeps open the communication, as will be better understood by considering the art as I found it. he only glass employed for being walked upon was made at that time in molds, called "flint" or "pressed" glass, and the only known mode of using this glass was the deck light method, where an opening in the deck is closed by a block of glass the side of the opening. Consequently, when glasses to be put into floors were wanted and deck lights were too small to suit, expensive slabs of glass, three inches thick and twenty inches square, were employed, each glass fitting its opening in the floor like the deck light in a vessel's deck. Where this mode was not resorted to, open iron gratings were employed in the floors with window sashes placed below to catch the dust and dirt. Such was the art as to glass to be walked upon. For windows and skylights are windows in a roof—the art consisted then, as now, in using the frame of sash bars as a device to save the expense of one large glass, the strength of the sash bars being with reference merely to supporting the glass, not to guard the window opening, this function being delegated to window shutters and window guards, the glazed sash frame being employed merely to shut out the weather, like a translucent curtain, whereas my invention—the illuminating grating—combines within itself the functions of a glazed sash and a shutter or window guard, by old vault covers being the first rabbeted gratings ever invented and made.

As a consequence of the state of the art as I found it, the only resemblance to a basement extension found by me was where the basement was enlarged by the addition of the narrow sunk area

railed off from the footway, and covered over by a "lean-to" skylight made of wood sashes glazed with pane glass, the feet of the sashes resting against the stone curb of the area, and the tops of the sashes resting against the wall of the building.

My invention is an improvement upon this imperfect basement extension, as my perfected vault cover is an improvement upon my imperfect invention of 1845.

With the exception above mentioned, there were no other basement extensions. The vaults used as pressrooms by the newspapers—New York Sun, Herald, and others—were in no sense extensions of basements; neither were they flat roofed vaults. All the light they received came down long necks, like chimneys, and they had but little in this way. The first thoroughly lighted vault ever constructed was made so by a sidewalk of my lights laid by me for the New York Herald building in the year 1840. This enabled me two years later to get the opportunity of putting down an actual basement extension, taking in all the space under the sidewalk and going two stories underground; but that year, the following, and the next, were required in order to perfect the work, so as to secure the public confidence, which was accomplished only when, after repeated failures, I at length succeeded in making water-tight joints that would withstand the effects of both summer and winter weather and concussions of every kind constantly repeated, which I accomplished by means of the double-cemented joint and bolting hereinabove fully explained as to the construction, the fusible cement spoken of as forming the vertical seam of the joint being a mixture of sulphur and coal tar, in proportions as set forth in my application for patent for same of February, 1854.

A skylight, as I have said, is only a window in a roof, frail and dangerous, as has been fatally proven in New York on several occasions, where firemen have lost their lives by stepping upon them in

mistake for the roof, while their inutility as protection against fire, or rather their dangerous character for letting fire into premises, has been of late made manifest, where the insurance companies met with a loss of four hundred thousand dollars directly traceable to a skylight. This loss, occurring within a few weeks of a fire where my roof lights saved the menaced premises, caused the New York Associated Fire Insurance Companies to put an extra premium of ten per cent. on all buildings sing skylights and no extra premium where Hyatt's roof lights were employed.

Fig. 2 on Sheet 1 may be taken to represent, in cross section, one of my illuminating roofs, the tile K being supported on the bottom flanges, d d, of the rafters D D, k k being the blades or webs of the beams. In general these webs of the rafters rise above the work to give greater depth to the beams and make them stiffer and stronger, in this way showing a smooth under face to the work, as is represented in the figure; but for area light roofs the cross bars are deepened on the under side for strength.

In my illuminating roof I call the perfected gratings "tiles," as I have already said, to distinguish them from the old vault covers, and I called them so also because their function is that of a covering to framing or rafters where the two combine to form the roof, for when the tile K is bolted to the rafters it is the actual substance of the roof as much as though it were a solid plate of metal, which it is, but pierced with holes to give light. The strength of this metal plate is, therefore, the strength of the roof, and the total areal field of light passing through it, instead of all going through one large central opening, thereby creating strong lights and shadows, is divided up into numerous small light fields all over the entire roof, so distributing the light equally throughout the apartment, with no strongly contrasted shadows and light. I have also shown how these tiles differ from the old vault light

where the glasses were confined by being held to their seats between laminæ or plates, in which to repair one, a number had to be disturbed, the strength of the grating being a the same time divided between the plates.

My tiles, as illustrated in Fig. 4, Sheet 1, are cast in one plate, with the seats for the glasses in the upper face, so as to be entered from the top side, and each glass by itself is held in position by means of the double-cemented joint, by means of which I get stronger, better, and cheaper lights than before. I also make the tiles, in narrow strips, (as represented in plan, Fig. 1, where K is the tile) to secure the least possible thickness of iron consistently with their strength, for the apertures in these gratings being small, the thickness of the tile is a matter of great importance, the spread of the light through them being dependent on their depth as proportioned to their diameters. Narrow tiles are stronger than wide ones of the same thickness, because hot flowing metal chills in proportion to the smallness of its stream and the distance it travels in the flask. Moreover, in constructing an illuminating roof where the illuminating gratings are the overing, and the work is required to have permanent water-tight joints, narrow tiles are better than wide ones of the same thickness, because the supports are thus multiplied, which makes a stiffer roof, and thus renders the water-tight seams less liable to be broken.

A part of my invention is relation to the grating I have said consists in making it with as little dead iron border as possible, in which form I term it an "illuminating tile," and represent the same in Fig. 1 by the letter K. The border of the grating is made with as little bulk of metal as possible, not alone to avoid loss of light space, but to prevent the tile from cracking in cooling when cast, as it would be liable to do were the border a very heavy one. This construction of the tile calls for a

narrow seat in the frame, and this in turn makes the lugs necessary, which are projecting eyes that come out into the light-space just under the tile, where the metal is greatest between the glasses, and gives an opportunity for bolting, the bolting of the tiles, in connection with the double cemented joint, being necessary to get the wind out of the tile, it being practically impossible to make the tiles perfectly level and true. This also renders important the bedding of the tile upon a soft and yielding water-proof substance, like putty, and as it requires a long time for the putty to harden and dry, I employ the fusible cement to secure the instantaneous water tight joint. Thus the lug, the bolts, the narrow bonded tiles, and narrow seated frame, and the double cemented joint are all important in a combination where each is mutually dependent on the other, and all this taken together forms a part of my invention, the separate and distinctive features of the constructions or appliances being the two divisions of light-gratings formed by themselves, and the heavy parts as borders and supports formed by themselves, and then the union of the two to get the perfected construction.

Having thus fully described and illustrated my invention under its fourfold aspect with respect to, first, perfecting the mechanical construction of the grating as a vault-cover; second, converting the vault-cover into an illuminating grating or building tile; third, combining the improved tiles into enlarged illuminating surfaces as building appliances; and, fourth, combining the illuminating appliances with buildings in the construction of approved illuminating buildings, what I claim as my invention, and desire to secure by Letter Patent, is—

1. An illuminating grating vault cover formed in a single plate or layer, as opposed to a grating made with cap plates or in laminæ or layers, substantially as and for the purposes herein set forth and illustrated.

2. Single plate illuminating grating vault covers formed with apertures blocked with glasses, set each independently of the other, by means of a bonding cement put between the sides of the glasses and sides of the apertures in the grating, such bonding cement having the property of setting and hardening in a practically instantaneous manner and forming a water-tight joint around the glass, substantially as and for the purposes herein set forth and illustrated.

3. Combining the glasses of an illuminating grating with the metallic portion thereof by means of a double cemented joint, substantially as and for the purposes herein set forth and illustrated.

4. An illuminating tile as a new building material, constructed substantially as and for the purposes herein set forth and illustrated.

5. Illuminating roofs and roof pavements as building appliances formed by combining perfected vault-covers or illuminating tiles as a new building material substantially as and for the purposes herein set forth and illustrated.

6. Improved buildings made by combining illuminating roofs and roof pavements as building appliances with the main structure of the building as integral portions thereof, substantially as and for the purposes herein set forth and illustrated.

7. Buildings in which the approaches over the areaway to its doorways from the sidewalk or traveled footway of the public street are formed by means of a solid water-tight translucent bridging or iron and glass, which serves the double purpose of stoop and roof, substantially as and for the purposes herein set forth and illustrated.

8. Buildings in which the area space is made to become a portion of the basement by means of a

water tight roof of iron and glass constructed as a platform or stoop to be walked over, substantially as and for the purposes herein set forth and illustrated.

9. Buildings in which the basement is enlarged by the union of the vault or coal hole space with the areal space as an open chamber, and uniting or combining the two with the basement, substantially as and for the purposes herein set forth and illustrated.

10. Buildings in which the areal and vault space are united by means of an iron girder, the bottom flange of which supports the granite slabs or sidewalk, and the web of which, serving as a riser, supports the area lights or illuminating platform, substantially as and for the purposes herein set forth and illustrated.

11. Buildings in which the sunk areas are covered or roofed with iron and glass in stoop or platform shape for being walked over, where the metallic portions are formed, joined, and made water tight by means of rising lips or water backs, and by means of nosings made with an overlap or drip, substantially as and for the purposes herein set forth and illustrated.

12. Buildings in which the sunk areas are roofed with iron and glass in stoop or platform shape for being walked over, where the tiles or metallic parts that support and carry the glass are cast or made separately from the rafters or framing that support them and the two are united by means of a double cemented joint or its equivalent, substantially as and for the purposes herein set forth and illustrated.

13. Buildings in which the sunk areas are roofed over with iron and glass in stoop or platform

manner for being walked over, where the metal tiles or glass carriers are united to each other or to framing by means of mastic bedding and vertical cement filling, combined with bolting, substantially as and for the purposes herein set forth and illustrated.

14. Buildings in which the sunk areas are roofed over with iron and glass in stoop or platform manner for being walked over, where the areal light space is enlarged by the employment of iron girder, beam, or supports laid parallel with the face of the building, in lieu of an area wall and coping, substantially as and for the purposes herein set forth and illustrated.

15. An illuminating roof of metal and glass, where the metal surface or plate that carries the glasses, and in which they are fixed and made water tight, forms the general strength as well as roof surface, in combination with the rafters, supports, or framing, the construction being such as to secure the twofold object of equalizing and distributing the strength of the iron while equalizing the distributing the light of the glasses, substantially as set forth and illustrated.

16. An illuminating step roof composed of glass and metal—that is to say, where the metal and glass are composed into illuminating sills and illuminating risers, and these are again combined to form an illuminating roof—substantially as and for the purposes herein set forth and illustrated.

THADDEUS HYATT.

Witness:

JUSTICE BRAUER,

T. C. BRECHT.

THE PLAINTIFF THEN RESTED.

(The drawings forming part of this re-issued patent are the same as the drawings of the original patent of 1867 and the re-issue of 1878, printed on pp. 349, ... of this case, and are here omitted by consent.)

Defendants moved to dismiss the complaint upon the ground that the question whether the Hyatt patent of 1881 is valid or invalids is directly raised by the pleadings and cannot be determined by this Court; that jurisdiction over that question belongs exclusively by act of Congress to the Federal Courts, and that the defense is that the patent of 1881 is invalid; that the contract of license was issued under the patent of 1878, which was surrendered September 21, 1881, and that the reissue of 1881 is not the same as the patent of 1878, and is invalid and void.

Motion denied; defendants excepted.

Defendants to prove the issues on their part, then offered in evidence a notice from plaintiff to defendants, which was admitted and marked Defendants' Exhibit No. 1 (attached to answer as "Exhibit A").

Defendants offered in evidence a judgment roll in the suit of Ingalls and others vs. Hyatt and other, filed June 22, 1880. Admitted and marked Defendants' Exhibit No. 2.

Defendants' Exhibit No. 2.

SUPREME COURT

TRIAL DESIRED IN THE CITY AND COUNTY OF NEW YORK.

JOSHUA K. INGALLS, JACOB MARK,
John B. Cornell, John M. Cornell,
and David L. Bartlett,
Plaintiffs.

against

ELIZABETH A. L. HYATT and Thaddeus Hyatt,
Defendants.

Summons.

To the above named Defendants:

You are hereby summoned to answer the complaint of this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service; and in case of your failure to appear, or answer, judgment will be taken against you by default, for the relief demanded in the complain.

Dated May 10th, 1879.

F. H. ANGIER, Plaintiffs' Attorney.

Post Office address and office:

Room No. 2, Tribune Building, New York City.

SUPREME COURT

TRIAL DESIRED IN THE CITY AND COUNTY OF NEW YORK.

JOSHUA K. INGALLS, JACOB MARK,
John B. Cornell, John M. Cornell,
and David L. Bartlett, Plaintiffs.

against

ELIZABETH A. L. HYATT
and Thaddeus Hyatt,
Defendants.

The plaintiffs, by F. H. Angier, their attorney, complaining of the defendants, allege:

That at all times the herein mentioned, the plaintiffs Joshua K. Ingalls and Jacob Mark, were and now are copartners in business in the city of New York under the firm name of Ingalls & Mark; and that all of the said times the plaintiffs, John B. Cornell and John M. Cornell, were and now are copartners in the business in said city under the firm name of J. B. & J. M. Cornell; and that at all of said times the plaintiff, David L. Bartlett, carried on business in the city of Baltimore, under the firm name and style of Bartlett, Robbins & Co.

II.

That on or about the 21st day of November, 1878, the plaintiffs, under the several firm names are foresaid, made and entered into a certain agreement in writing with defendants Elizabeth A. L. Hyatt and Thaddeus Hyatt, and one Theodore Hyatt, since deceased, of which agreement the following is a copy:

To wit, Ex. A. Complain.

III.

That in pursuance of the provisions and conditions of said agreement, the defendant, Elizabeth A. L. Hyatt, did, on the same day, make and deliver to each of plaintiffs' said firms, certain other agreements or licenses, which last named agreements or licenses were substantially alike in language and form, and of one which the following is a copy:

To wit, Ex. B. Complain, with signature of E. A. Lake Hyatt added

IV.

That the plaintiffs and each of them have duly performed all the conditions of said agreements upon their part.

That the defendants have not performed the conditions of said several agreements upon their part, but have violated the same, in that they have since the execution and delivery of said agreements, manufactured and sold, and still continue to manufacture and sell, in the city of New York and elsewhere, without the consent of the plaintiffs or their said firms, or any of them, large quantities of illuminating tiles for basement, basement roofs, and the patented articles referred to in said agreements; and have offered, and still do offer, the same for sale in the city of New York and elsewhere, at prices much less than the prices fixed by plaintiffs therefor; and said Elizabeth A. Lake Hyatt has, without the consent of plaintiffs or any of them, issued licenses or has assumed to revive certain obsolete and cancelled licenses to divers persons and firms to manufacture and sell said illuminating tiles for basement extension roofs and patented articles in the States of New York, New

Jersey, Pennsylvania, Maryland, Delaware and the District of Columbia. That said goods so manufactured and sold by defendants were not made and sold for the purposes of completing any contract made prior to said agreements, but were made and sold, and still are being made and sold, in violation of the conditions of said agreements.

VI.

That the plaintiffs have protested against the said acts of the defendants and requested them to desist therefrom, but defendants have refused to do so.

VII.

That by reason of the previous, the plaintiffs have been greatly injured in their business as manufacturers of said patented articles under said agreements, to their damage five thousand dollars.

Wherefore plaintiffs demand judgment against the defendants.

1. That said defendants, their servants, agents, attorneys or assign, be forever enjoined and restrained from manufacturing or selling within this State any illuminating tiles for, or constructing any basement extension roofs, roof lights, or any of the articles parented under said Letters Patent, No. 68,332, dated August 27th, 1878, reissued 6th August, 1878, of any nature or kind whatever.

2. That said Elizabeth A. L. Hyatt and her attorneys and agents be forever enjoined and restrained from issuing licenses or reviving former licenses to any person or persons whatever to manufacture or sell within this State any of said articles patented under said Letters Patent, without the consent of the plaintiffs in writing first had and obtained.

3. That the defendants account for and pay over to the plaintiffs all profits realized by them or either of them upon the manufacture or sale by them or either of them, their servants, agents, attorneys or assigns, of said articles or any of them since the 21st day of November, 1878.

4. For five thousand dollars damages aforesaid.

5. For costs of this action.

F. H. ANGIER,
Plaintiff's Attorney.

City and County of New York, ss.:

JOSHUA K. INGALLS, being duly sworn, says he is one of the plaintiffs herein; that he knows the contents of the foregoing complaint, and that the same is true to his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters, he believes it to be true.

JOSHUA K. INGALLS

Sworn to before me this
10th day of May, 1879.

C. R. WATERBURY,
Com'r of Deeds, N. Y. Co.

SUPREME COURT

OF THE STATE OF NEW YORK.

JOSHUA K. INGALLS and others

against

ELIZABETH A. L. HYATT and others.

I.—The defendant, Elizabeth A. H. Hyatt, separately answering the plaintiffs' complaint, and for a first defense, denies each and every allegation contained in paragraphs numbered respectively two, four, five, six and seven of said complain, except as hereinafter stated or admitted.

II.—Further answering and for a second and separate defense, this defendant, on information and belief, alleges that an instrument substantially as described in paragraph two of the complaint was signed by the plaintiffs and the said Theodore Hyatt and Thaddeus Hyatt, but this defendant alleges that the said Theodore Hyatt and Thaddeus Hyatt had only the power and authority from the defendant to grant and issue licenses under the said Letters Patent in the ordinary way and for the ordinary purposes of conferring authority upon the licensees to make and sell the said patented article or invention, and neither of them had any power, authority or direction from this defendant to agree, contract or covenant for and on her behalf that she would license no other party or parties in the State named in said instrument without the written consent of the plaintiffs, nor that she would not engage in manufacturing tiling for, nor in laying any basement extension, nor any tiling of any kind that may be covered by the said

Letters Patent, or the reissue thereof, and to that extent the said contract was and is in excess of any authority or power conferred upon or granted to said Theodore and Thaddeus, or either of them, and is, therefore, void and not binding upon this defendant.

III.—And further answering, and for a separate and third defense, this defendant alleges:

That the provision and stipulation contained in said alleged agreement, as set forth at folio 6 of the complaint, that the said licensee and this defendant shall constitute an association for regulating prices, determining discounts to the trade, &c., &c., was not authorized or empowered by her, and is against public policy, unlawful and void, and this defendant is not bound by the same.

This defendant is ready, willing, and offers to comply with and perform the terms of said alleged contract and of the licenses, so far as authorized by her to be made, and so far as not contrary to good morals and public policy, and prays that the plaintiff's complain be dismissed with costs.

KURZMAN & YEAMAN,
Attorneys for Defendant, Elizabeth A. L. Hyatt.

City and County of New York, ss.:

ELIZABETH A. L. HYATT, one of the defendants in this actions, being duly sworn, deposes and says that the foregoing answer is true to her own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters she believes to be true.

ELIZABETH A. L. HYATT.

Sworn to before me, this 23d
day of June, 1879.

WM. B. MAGRATH,
Com'r of Deeds.

SUPREME COURT

OF THE STATE OF NEW YORK, CITY AND COUNTY OF NEW YORK.

JOSHUA K. INGALLS and others,
Plaintiffs

against

THADDEUS HYATT, impleaded with other,
Defendants.

The separate answer of Thaddeus Hyatt, one of the defendants in this action, by Ambrose Monell, his attorney, respectfully shows to the Court:

First.—He admits the allegations contained in Paragraph I of the complaint.

Second.—He admits the execution of him of the agreement mentioned in Paragraph II of the complaint.

Third.—He admits the delivery of the license or agreement in the manner and form referred to in Paragraph III of the complaint.

Fourth.—He denies each and every other allegation is said complaint contained.

Wherefore, defendant demands judgment dismissing the complain herein with costs.

AMBROSE MONELL,
Attorney for Defendant, Thaddeus Hyatt

City and County of New York, ss.:

Thaddeus Hyatt, being duly sworn, deposes and says: That he is one of the defendants in the above entitled action, and that the foregoing answer is true of his own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matter he believes it to be true.

THADDEUS HYATT.

Sworn to before me this
2d day of July, 1879.

JAMES BENNETT,
Notary Public.

SUPREME COURT

JOSHUA K. INGALLS, Jacob Mark,
John B. Cornell, John M. Cornell,
and David L. Bartlett,

against

ELIZABETH A. L. HYATT and Thaddeus Hyatt.

In this action, tried by the Court without a jury, I make and find the following findings of fact and conclusions of law:

FINDINGS OF FACT.

I.

That at all the times mentioned in the complaint, the plaintiffs, Joshua K. Ingalls and Jacob Mark, were and now are copartners in business in the city of New York under the firm name of Ingalls

& Mark, and that at all of said times the plaintiffs, John B. Cornell and John M. Cornell, were and now are copartners in business in said city under the firm name of J. B. & J. M. Cornell; and that at all of said times the plaintiff, David L. Bartlett, carried on business in the City of Baltimore under the firm name and style of Bartlett, Robbins & Co.

II.

That on or about the 21st day of November, 1878, the plaintiffs, under their several firm names as aforesaid, made and entered into a certain agreement in writing with defendants, Elizabeth A. L. Hyatt, and Thaddeus Hyatt and one Theodore Hyatt, since deceased, which agreement is fully described and set forth in Paragraph II of said complain.

III.

That said agreement was lawfully entered into, and is, in all respects, a good, valid and subsisting agreement between the plaintiffs and said defendants.

IV.

That said defendant, Elizabeth A. L. Hyatt, has, since the execution of said agreement, and before the commencement of this action, acknowledged, ratified and confirmed the same in all respects on her part.

That in pursuance of the provisions and conditions of said agreement, the defendant, E. A. L. Hyatt, did, on the same day, make and deliver to each of plaintiffs' said several firms, certain other agreement or licenses, which were substantially

alike in language and form, which licenses are described in Paragraph III of said complaint.

VI.

That the plaintiffs, and each of them, have duly and fully performed all of the conditions of said agreements upon their part.

VII.

That the defendant, Elizabeth A. L. Hyatt, has not, since the date of said contracts, made or granted any licenses to others than the plaintiffs.

VIII.

That the defendants have violated the conditions of said several agreements upon their part, in that they have, since the execution and delivery of said agreements, manufactured and sold, and permitted other persons to manufacture and sell, without the consent of the plaintiffs or their said firm, or any of them, large quantities of illuminating tiles for basement extension roofs, and the patented articles referred to in said agreements and licenses; and have offered, and permitted others to offer, the same for sale, without the consent of the plaintiffs, or either of them.

IX.

That said goods so manufactured and sold by defendants were not made and sold for the purpose of completing any contract made prior to said agreements, but were made and sold in violation of the conditions of said agreements.

That by reason of such violation by defendants, the plaintiffs have sustained injury and damage in their business as manufacturers of said patented articles.

CONCLUSIONS OF LAW.

That the plaintiffs herein are entitled to an injunction, to be issued out of this Court, forever enjoining and restraining the defendants, and each of them, their and each of their agents, servants and attorneys, from manufacturing or selling, or authorizing any other person or persons to manufacture or sell, within the territory of which, by said first named agreement the plaintiffs are exclusively licensed, any illuminating tiles for, or constructing any basement extension roofs, or any of the articles patented under Letters Patent of the United States, No. 68,332, dated August 27th, 1867, reissued August 6th, 1878, of any nature or kind whatsoever, and from in any way or manner violating any of the covenants of said agreements, or either of them, on the part of said defendants, or either of them.

II.

That the plaintiffs are entitled to an order of reference herein to compute the damages sustained by said plaintiffs by reason of the violations herein above mentioned, and to an accounting by defendants before the Referee to be named in said order for all profits realized by them, or either of them, upon the manufacture or sale by them, or either of them, their or either of their servants, agents, attorneys or assigns, of said articles, or any of them, since the 21st day of November, 1878.

III.

That upon the coming in of the report of said Referee, the plaintiffs shall be entitled to the judgment of this Court against the defendants for such damages as may be assessed by said Referee, together with their costs and disbursements of this action and expenses of said reference.

MILES BEACH,
Acting Justice Supreme Court.

At a Special Term of the Supreme Court of the Sate of New York, held at the Court House in the City of New York, on the 21st day of June, 1883.

Present—Hon. MILES BEACH, Justice.

JOSHUA K. INGALLS, JACOB MARK,
John B. Cornell, John M. Cornell,
and David L. Bartlett,

against

ELIZABETH A. L. HYATT and Thaddeus Hyatt.

This cause having been brought on for hearing and trial, and the same having been duly tried, and the written findings of Mr. Justice Beach having been duly filed, now on motion of F. H. Angier, Esq., counsel for plaintiffs,

It is adjudged that the defendants, Elizabeth A. L. Hyatt and Thaddeus Hyatt, and each of them, and their and each of their agents, servants and attorneys, be, and they are hereby forever enjoined and restrained from manufacturing or selling, or authorizing any other person or persons to manufacture or or sell within the States of New York, New Jersey, Pennsylvania, Maryland, Delaware, and the District of Columbia, any illuminating tiles for, or constructing any basement extension roofs or any of the articles patented under Letters Patent of the United States, No. 68,332, dated August 27, 1867, reissued August 6, 1878, of any nature or kind whatsoever, and from in any way or manner violating any of the covenants, on the part of said defendants, or either of them, contained in the agreements set forth in paragraphs II and III of the complain in this action.

And it is further adjudged and decreed, that the defendants, Elizabeth A. L. Hyatt and Thaddeus Hyatt, and each of them, their and each of their agents, servants and attorneys, account for any pay over to the plaintiffs, or to their attorney, all profits realized by them, or either of them, or their or either of their agents, servants or attorneys, upon the manufacture or sale by them, or either of them or their or either of their said agents, servants or attorneys, of said patented articles, or any of them, within said States of New York, New Jersey, Pennsylvania, Maryland, Delaware, and the District of Columbia, since the 21st day of November, 1878.

And it is further adjudged and decreed that it be referred to Rufus F. Andrews, Esq., counsellor-at-law, of the city of New York, to take and state such account, and to take proof herein of the amount of damages sustained by plaintiffs by reason of the violations by defendants of said agreements, and that said Referee report the same to this Court, with all convenient speed, and that upon the coming in of said report the plaintiffs herein have judgment in this action for such damages as may be assessed by said Referee against said defendants, with costs herein to be taxed.

Endorsed, filed June 22d, 1880.

A copy, WILLIAM A. BUTLER, Clerk.

Defendant offered in evidence the summons and complain in the suit of Hyatt vs. Ingalls & Mark in the Court of Common Pleas.

Admitted, and marked Defendants' Exhibit No. 3

Defendants' Exhibit No. 3.

COURT OF COMMON PLEAS

IN AND FOR CITY AND COUNTY OF NEW YORK.

ELIZABETH A. L. HYATT, Plaintiff,

against

JOSHUA K. INGALLS, JACOB MARK, Defendants.

Summons.

To the above named Defendants:

You are hereby summoned to answer the complaint in this action, and to serve a copy of your answer on the plaintiff's attorney within twenty days after the service of this summons, exclusive of the day of service, and in case of your failure to appear or answer, judgment will be taken against you by default, for the relief demanded in the complaint.

Dated New York, January 17, 1882.

WM. F. SCOTT, Plaintiff's Attorney,
Office and Post office Address, No. 40 Wall St., N. Y. City.

COURT OF COMMON PLEAS

IN AND FOR CITY AND COUNTY OF NEW YORK.

ELIZABETH A. L. HYATT, Plaintiff,

against

JOSHUA K. INGALLS and JACOB MARK, Defendants.

Copy Complaint.

The plaintiff complains of the defendant and alleges:

I.—The defendants are, and at the time hereinafter mentioned, were copartners trading in the city of New York under the firm name of Ingalls & Mark.

II.—On the 21st day of November, 1878, the plaintiff entered into a contract in writing with said defendants in their said firm name, of which the following is a copy, to wit, Exhibit B, Complaint.

III.—Under said contract there became due and payable to the plaintiff on the first day of November, 1881, as royalties upon work done by the defendants under plaintiff's said patent within the quarter last preceding that day, and theretofore the sum of twelve hundred dollars.

IV.—That the payment of said sum has been demanded, but no part thereof has been paid.

Wherefore, the plaintiff demands judgment of the defendants in the sum of twelve hundred dollars ($1,200) with interest thereon from said first day of November, 1881, and the costs.

WM. F. SCOTT, Plaintiff's Attorney

City and County of New York, ss.:

Wm. F. Scott, being duly sworn, says: he is the plaintiff's attorney in the above entitled action, that he has read the foregoing complaint and knows the contents thereof, and that the same is true to his own knowledge. That the reason why this verification is not made by the plaintiff is that the plaintiff is not now within the county of New York, which is the county in which deponent resides; that deponents means of knowledge are statements made by plaintiff to deponent in person and by her attorney Robert K. Elliot, Esq., and the possession of a letter written by the defendants herein dated November 15th, 1881, and the original license granted by plaintiff to defendants referred to in said complain.

WM. F. SCOTT.

Sworn to before me, this 17th
day of January, 1882.

JAS. J. CONNER,
Commissioner of Deeds,
N. Y. City and Co.

Defendants offered in evidence the testimony of Alexander T. De Puy, deceased, taken in the action of Ingalls vs. Hyatt, in which the judgment (Exhibit No. 2) was obtained, from page 30 to 38, inclusive. Admitted and marked Defendants' Exhibit No. 4.

Defendants' Exhibit No. 4.

Alexander T. Depew, sworn for plaintiff, testified as follows:

Q. What is your business?

A. Builder.

Q. In the city of New York?

A. Yes, sir.

Q. Do you know the defendants Elizabeth H. L. Hyatt and Thaddeus Hyatt?

A. I do.

Q. How long have you known them?

A. I have known Mr. Thaddeus Hyatt nearly 30 years, Mrs. Hyatt for a few months since January, 1879.

Q. When did you first see that paper, Ex. S for identification?

A. Some time in February, 1879.

Q. From whom did you receive it?

A. Mr. Thaddeus Hyatt.

Q. Do you know in whose handwriting these words are in this paper, "I hereby assign all my right, title and interest in the above and within licenses, Alexander T. Depew?"

Mr. Yeaman.—We admit it is in the handwriting of Thaddeus Hyatt.

Q. Before you received that paper, did you ever go to Ingalls and Mark in reference to it?

Objected to as immaterial and incompetent; question withdrawn.

Q. Did you ever go to Ingalls and Mark or any of the plaintiffs for their consent that you receive a license from the defendant?

The Court.—Do you wish to prove by this witness that he applied to you for that consent?

Plaintiff's Counsel.—Yes, and we did not grant it; and I expect to prove he reported that to Thaddeus Hyatt. Then after all they issued this license to him in violation of the terms of the agreement.

Objection overruled; defendant excepted.

A. I did.

Q. Did they refuse to grant that consent?

A. They did not refuse to grant their consent provided I came up under the same terms they were under.

Q. They said if you came up under the same terms they were under you could have their consent?

A. Yes.

Q. Did you report their answer to Thaddeus Hyatt?

A. I did.

Q. Was it after that transaction that you received this assignment (Ex. S.) after this conversation with the plaintiffs and Thaddeus Hyatt?

A. It was prior to my receiving that license.

Q. But after you reported these conversations to Mr. Thaddeus Hyatt you received this assignment?

A. Yes.

Q. Do you recollect what time in the year those conversations were with the plaintiffs?

A. I don't remember.

Q. About January, 1879?

A. January or February, somewhere along there.

Q. What did Mr. Hyatt say about the agreement when you reported to him the refusal of the plaintiffs to consent?

A. I don't remember exactly the words, I reported the conversation I had with Mr. Cornell and also with Ingalls and Mark.

Q. What did Mr. Hyatt say?

A. He asked me if I was willing to accede to their terms. I told him no, I had not transgressed against the patent and I was not compelled to pay the money they had paid.

Q. Anything else?

A. This is about the substance of it.

Q. After that conversation you got this assignment (Ex. S.)?

A. Yes.

Q. Did you commence to manufacture under this license at 25 Waverly Place?

A. What work was done while I was superintending it was done under that license.

Q. When did you commence to manufacture there?

A. I can't tell you now.

Q. It was after you got this assignment?

A. Yes.

Q. How long did you continue to manufacture there?

A. About a month or six weeks.

Q. What did you manufacture?

A. I understood from Mr. Hyatt, that he had liberty from his agreement to work off his old stock, and contracts were made from time to time to use that stock.

Q. Did you manufacture any basement extension roof?

A. Yes, with his old stock.

Q. But you manufactured basement extension roofs?

A. What is called area covering.

Q. The same articles covered by this agreement in dispute here?

A. Yes.

Q. When you gave up there at the end of six weeks whom did you give up to?

A. I assigned that license in blank.

Q. At whose request?

A. At the request of Mr. Hyatt, when I left, or prior to my leaving.

Q. Did you pay anything to Mr. Jackson, when he assigned that to you?

A. No, sir; Mr. Hyatt did.

Q. You did not?

A. No, sir.

Q. Mr. Hyatt did?

A. I presume he did.

Q. Did Mr. Jacobs pay anything to you or Mr. Hyatt pay anything to you after you assigned it in blank when you left?

A. No, sir.

Q. At whose request did you make the assignment in blank?

A. At the request of Mr. Hyatt.

Q. Did you see Mrs. Hyatt during the time you were there?

A. I saw her several times.

Q. Have a conversation with her about this work?

A. No particular conversation with her; she was present several times when there was conversation.

Q. About the agreement?

A. About general business. I believe she was present at one time when they talked of the agreement.

Q. I want to ask you about that old stock; was that old stock entirely sufficient for the manufacture of basement extension roofs?

A. We had a large quantity on hand.

Q. Do you know of you own knowledge of what that stock consisted, and whether it was fit for the manufacture of basement extension roofs?

A. I do; I saw it used; used it for that purpose.

Q. Do you know whether anything else was purchased in order to construct them while you were there?

A. Yes, sir; glasses and frames.

Q. So that old stock was not entirely sufficient for the purpose of manufacturing basement extension roofs?

A. He could not work it at all unless he had other parts.

Q. Other new material?

A. Yes, other parts with which to work it off.

Q. Those patterns were used while you were there to manufacture basement extension roofs?

A. Some patterns were made new; some old patterns of Mr. Hyatt were altered.

Q. Do you know who furnished any of the new patterns?

A. Mr. Hyatt.

Q. You did not buy any yourself?

A. I had a workman there.

Q. Who was he?

A. I forget his name; some pattern maker.

Q. Was Mr. Jacobs there during all this time?

A. Yes.

Q. How long have you known Mr. Jacobs?

A. I can't say—a year or two; I have known him a long while by reputation.

Q. He has been with Mr. Hyatt all the time you have known him?

A. yes, and prior to that a long while.

Cross-examination by Defendants' Counsel:

Q. When you were at 25 Waverly place, Mr. Hyatt had a quantity of tiles already made up?

A. Yes.

Q. And he had a quantity of glass on hand?

A. Yes.

Q. A quantity of tiles without the glasses in?

A. Yes.

Q. And it became necessary to purchase various materials to make a complete thing from time to time?

A. Yes.

By Mr. Yeaman:

Q. You paid royalties on the work you did?

A. Yes; I was to have a percentage; the balance was to go for royalties.

Q. You have alluded to a conversation between you and Ingalls & Mark about coming in on the same terms that they had come in, and you declined to do it. Give the whole of that conversation, what you expressed to him for not complying with such terms?

A. As far as I can remember, I asked him if there was any objection to my coming in according to this new arrangement, and Mr. Ingalls, and also Mr. Cornell, in the interview I had with them, saw no objection; Mr. Ingalls especially, provided I came in on the same terms they came in. I asked them what that was; they said they had paid $1,750; I said: "Mr. Ingalls, I never transgressed against Mr. Hyatt about the prior arrangement you had made with him in not paying royalties, therefore I refuse to pay that sum."

Q. Whom did they want you to pay that $1,750 to?

A. The association.

Q. Not to Mrs. Hyatt?

A. No, sir; to the association.

Q. You spoke of Mr. Hyatt working up old materials; did you not also take off of Mr. Hyatt's hands a contract for doing some work on the Boreel building?

A. I was to superintend that job; I had to advance certain sums; I was to have a percentage on the superintendence of the work.

Q. That was on the contracts for the Boreel building which had been made before November, 1878?

A. Yes.

Plaintiff's Counsel:

Q. Do I understand you to say you paid royalties to Mr. Hyatt?

A. The arrangement was, I was to have a percentage on all work manufactured, as they might have my services, and the balance was to go for royalties and for stock.

Q. It was a kind of partnership?

A. Yes.

Q. Did you have any written agreement made?

A. No, sir; verbal.

Q. There no stipulated royalty agreed upon between you and him?

A. To equal what Ingalls & Mark paid, and Mr. Cornell.

Q. The percentage you were to receive was the amount of profits after deducting a percentage equal to the amount that Ingalls & Mark paid for royalties?

A. I was to have 10 per cent.

Q. Of all profits?

A. Of all profits.

Q. He was to have all the rest?

A. He was to have the rest for stock and for rent and clerk, &c., and the royalties.

By Defendants' Counsel:

Q. Mr Hyatt, at that time, was in very bad health?

A. In bad health; was not able to go out. That is the reason he employed me to do it. I knew all the men; he requested me to do it, as he was not able to do it himself.

Plaintiff's Counsel:

Q. This arrangement (Exhibit "S"), was a part of the arrangement you had with him to do this work?

A. That was the arrangement.

Defendants then called as a witness on their behalf, WILLIAM J. FRYER, Jr., who being duly sworn, testified:

I am an iron contractor, and reside at 326 Lexington avenue. I have a license from Mrs. Hyatt, the plaintiff in this action, to manufacture and sell certain work under an invention of hers. I have not got it with me. I do not positively know where it is. My impression is that it is with my attorney, Mr. Van Siclen. As one of the Ætna Iron Works I got it, I think, in 1872. I got it then personally. I was the manager and treasurer of Ætna Iron Works in 1872. I got it as an officer of the Ætna Iron Works. Afterwards it came into my hands individually, on the dissolution of the Ætna Iron Works. The dissolution was in 1879, I think. I cannot tell what time in 1879. I think, however, it was in May, 1879. I purchased it from the public auctioneer at that time—I think May, 1879.

Q. You knew of the existence of this contract between Mrs. Hyatt, on the one part, and Ingalls and Mark, and Bartlett, Robbins & Co., and the Cornells on the other, did you not?

Objected to by plaintiff; objection sustained; defendants excepted.

A. I never, to my recollection, went to any of these licensees and asked their permission to get that license. After I had obtained it there was a conversation with the other licensees as to taking out a license under the Patent Light Association—a year afterward—perhaps not so long as that. I wrote a letter to Mr. Cornell, making a request to be admitted to the Patent Light Association. After waiting a month for his reply, and none coming, I withdrew that request, and then they offered to give me a license under the Patent Light Association, and I refused to take it, preferring to keep my old license. I had a conversation, I think, with Mr. Mark, in which Mr. Mark said, of course I could

come into the Association, provided I paid my proportion of the money that they had paid into the Association. I think that conversation took place between the time that I wrote to Mr. Cornell requesting to come into the Association, and the time when I withdrew my request.

Q. This was money they had paid Mrs. Hyatt?

A. The only information of money having been paid Mrs. Hyatt, I think, came from Mr. Hyatt in conversation with him. I do not think I had seen the agreement up to that time. Afterwards I saw the written agreement with that association. They stated to me that they had each paid $1,750, or some such sum, and I would have to pay about that sum, whatever the proportion was then, to the Patent Light Association. I did not decline that proposition then. I withdrew my request afterwards. At the time I purchased this license from the public auctioneer I do not think I had asked Mr. or Mrs. Hyatt for it. The Receiver of the Ætna Iron Works assigned the license to me by order of the Court. Mr. Hyatt consented to it in writing, after I obtained the license, not before.

Q. Did you ask Mr. or Mrs. Hyatt for that consent?

A. I think I did.

Q. Of which one did you ask it?

A. Mr. Hyatt.

Q. Who was it that gave or signed the consent?

A. Mr. Hyatt.

Q. For whom?

A. For himself.

Q. What was said at the time about the assignment or previous agreement? Was there anything said, to your recollection, about the agreement of 1878 that he had made with the Patent Light Association, as he termed it?

A. I do not remember. The consent was written at my office in the Ætna Iron Works, I think. I was then doing business individually in the old Ætna Iron Works, 104 Goerk street.

Q. Did you not go to No. 25 Waverly Place after that?

A. Yes, that was in addition to my regular business.

Q. That was Mr. Hyatt's old place?

A. Yes.

Q. You were manufacturing and selling under this license there?

A. Yes, I have not made any patent lights for eighteen months. I stand ready to. I am connected with the business now. I do not know whether or not there are infringers here who are manufacturing and not paying.

On cross-examination by plaintiff's counsel, the witness testified:

Q. Who demanded from you as a condition of joining the Patent Light Association the sum of $1,750, or whatever the sum was?

A. Mr. Mark told me that that would be the condition on which I could come in; there were three other licenses at that time in this Association; this money was to be paid in to the Association and not to Mrs. Hyatt; they didn't say anything about Mrs. Hyatt getting it; I got the consent shortly after my purchase, before November, 1880, and before 1880.

Q. Were you sued by these patent light men?

Objected to as not being the best evidence, and as immaterial and incompetent; objection overruled; defendants excepted.

A. I was, in 1880, by John B. Cornell, Ingalls & Mark and Barlett, Robbins Co.

On re-direct examination by defendants' counsel, the witness testified:

That suit was discontinued before I put in an answer.

Being further cross-examined, the witness testified:

There was a written agreement entered into between me and the licensees; I have it in my possession.

The defendants then called as a witness in their behalf, Joshua K. Ingalls, who, being duly sworn, testified:

I am one of the defendants in this action, and one of the parties to the arrangement of 1878; I had no knowledge from Mr. or Mrs. Hyatt, or from any other person, that the patent granted in 1878 was to surrendered in September, 1881; I did not consent that it should be, nor did my co-licensee; in 1878 I was doing business at 5 Worth street, in this city as a Light manufacturer; my business ever since has been the same; when the agreement of 1878 was made, Mr. Thaddeus Hyatt, husband of Mrs. Hyatt, acted for Mrs. Hyatt.

Q. Do you know whether or not he has acted for her ever since that time, or down to 1881?

A. So far as I know he has always acted for her; he is her husband; I have had many dealings with Mrs. Hyatt in regard to this patent in presence of Mrs. Hyatt; the suit brought by myself, Mark and others against Mrs. Hyatt was tried, I think, in April 1880; Mrs. and Mr. Hyatt returned to this country in September, I think, 1880. I had several interviews with them, and usually when they were both present; they wished us to withdraw the suits; I know a gentleman by the name of Elliot; he was acting for Mrs. Hyatt; she told me so; he acted for her when she was present; I had a conversation with Mrs. and Mrs. Hyatt at Eleventh street; they were both present; the substance of that conversation was with regard to the old licensees—parties who had licenses that were dated previous to the agreement of 1878; and Mr. and Mrs. Hyatt both assured me that they could control Tice & Jacobs, and could prevent their manufacturing, and would

do so; that they had made no agreement, no admission to Mr. Fryer; they said they had done nothing which would relieve Tice & Jacobs or Mr. Fryer from paying sixty cents per square foot royalty on all the work which they did, and that they would enforce the collection of sixty cent upon all work done by them while they should do work at all; nothing at that interview was said about infringers, that I distinctly recall.

Q. When did you afterwards have a meeting?

A. That which I remember most distinctly in regard to suing infringers was at an interview at the New York Hotel, with Mr. Elliot and Mr. Angier; I think so other was present.

Q. Was this Mr. Elliot attorney in fact for Mr. Hyatt?

A. Yes, sir; she told me so; this was after our suit was brought; it was previous to the discontinuance.

Q. What had the discontinuance of the suit to do with it?

A. It was a concession upon our part; we were to withdraw the suits, and we were to resume the payment of Mrs. Hyatt's royalties; they were to prosecute infringers, and the fund from the royalties paid by these outside licensees was to be set apart to meet that expense, in the place of the provision in the old agreement; Mr. Elliot said he would proceed immediately to the prosecution of infringers; we discontinued our action, after it had been reduced to a judgment.

Q. What was the consideration for the discontinuance of your action? What did the Hyatts or Mr. Elliot promise to do?

A. They promised to have Tice & Jacobs enjoined or restrict them at least to the city of New York, and make them pay 60 cents per square foot. Mr. Fryer also was to be restricted to the city of New York. They were to give me power of attorney so that any party that Ingalls and Mark wished to proceed against, they would have

the power to do so, although the other licensees might not be inclined. It was repeatedly said by Mr. Elliot that they would proceed immediately against infringers.

Q. Did Mr. and Mrs. Hyatt give you power of attorney to bring suits against infringers?

A. They did.

Q. Did you bring suits against infringers?

A. No, sir.

Q. Do you know whether anybody did on your behalf or in your interest, or in the interest of the patent?

Objected to by plaintiff; objection sustained; defendants excepted.

Q. What was done?

A. Suits were commenced by Angier and Elliot against several parties, and a suit which had been previously commenced by Mr. Foster against some part in Front street for whom Mr. French had done work, was renewed; that suit had been stopped in consequence of the withdrawal of the power of attorney under which Mr. Cornell, the plaintiff, had acted; Mr. Cornell was one of our co-licensees; five or six suits were brought against infringers in the Federal Courts; one of them was in Buffalo; those suits were all brought before the surrender of 1881; I was acquainted thoroughly with this business prior to September, 1881.

Q. I want you to give the Court your best knowledge as to the number of persons infringing or working in New York, without a license, at the time you had this agreement with Mr. and Mrs. Hyatt, the agreement, of 1880, and the number of infringers working throughout the State.

A. There were several; shall I mention the names? Mr. French of this city, Messrs. Lindsay & Graff at that time, and in addition to that, there was a large number of house smiths who were constructing this basement extension roof, and

employing these other parties to furnish them the materials; whether they made up work, I am not certain; there may be one or two others.

Defendants offered in evidence a circular (pages 10 and 11), published by Thaddeus Hyatt, August 1, 1881. Admitted and marked Defendants' Exhibit No. 5.

Defendants' Exhibit No. 5.

FINALLY.

The gentlemen of the circular (all of whom are infringers of the patent) express deep concern at the tardiness of "the attorneys of E. A. L. Hyatt" in bringing infringers to justice.

This anxiety on their part is praiseworthy, natural, and deserving of respectful sympathy. The undersigned, deeply aware of his own shortcomings in this respect, attempts no apology for himself, but with shame and contrition admits the fact that he has allowed too many people to run over him. Under these circumstances it will be satisfactory to the authors of the circular to know that the new attorney, in fact, (whose card is hereto attached), proposes to let no grass grow under his feet, but by the most certain and expeditious means known to the law, to settle the question as to the validity of the "Basement Extension Patent," of August 27, 1867.

New York, August 1st, 1881.

THADDEUS HYATT.

The following circular is a copy of the one issued by the infringers:

Important Facts that interest the Owners of Real Estate, Architects and Builders of Architectural Iron Work in the City of New York and other cities.

The attorneys of Elizabeth A. Lake Hyatt have threatened and continued to annoy owners of real estate with threats of suit for infringement of what we believe to be a worthless patent, granted to Thaddeus Hyatt, in 1867, and reissued in 1878 for improvement in vault lights.

We give below a few of the reasons why there is nothing to fear from this continual annoyance.

Hyatt was not the original inventor.

Everything described in his first patent of 8145 has been in use in London, and other parts of Europe six years prior to his patent. There were also patents in Europe and this country that antedate his claim.

His patent of 1867, reissued in 1878, is a combination of all the improvements made by various persons in the iron business, and claimed by him as his inventions, and called by him "Basement Extension," which does not describe any invention, but but claims everything made before. What is described and claimed in it had been in public use (by his own admission) seventeen years before his patent was issued, and twenty-eight years before it was reissued.

In the case of Hyatt vs. Fitzgerald, in the United States Court for the Southern District of Ohio, suit was brought for infringement of the Thaddeus Hyatt patents of 1845 and 1867. Before the evidence was in, the patent of 1867 was withdrawn, and at the close of the trial judgment was rendered in favor of Fitzgerald.

In the year 1872, James C. French and others were sued for infringement of Hyatt's Patent of 1845. After getting the evidence together, the

attorney for French offered the complainant the privilege of putting the patent of 1867 with their suit, which offer they declined, and after a disclosure of the evidence, they conceded their clients' case was hopeless and withdrew the action.

Hyatt, by skillful maneuvering, has succeeded in holding a monopoly, and collecting a fabulous amount of money in royalties from this business since the date of his patent 1845, a period of thirty-six years.

There have been about one hundred and twenty Patents granted in the United States to different individuals for improvement in vault lights since the year 1834. Thirty of them were issued previous to Hyatt's patent of 1867 and ninety-seven of them previous to his reissued patent of 1878.

The evidence in the hands of the attorneys of several persons in this city, who are defendants in suits begun by Hyatt, is so conclusive against the validity of his patent that he fears to bring them to an issue, and has, therefore, pursued a course of delay and obstruction to a speedy trial.

Knowing all these facts he has the effrontery to claim that they are all infringements of his claims—and demands royalty from all of them.

JAS. L. JACKSON,
J. C. FRENCH.

The undersigned Manufacturers of Architectural Iron Works do concur in the above.

James L. Jackson, Iron Works, 315 E. 28th St., N. Y.

A. J. Campbell, Iron Works, 558 W. 33d St., N. Y.

J. C. French & Son, Vault Light, 537 Canal St., N. Y.

Lindsay, Graff & Megquier, 622 E. 14th St., N. Y.

T. Nichols & Bro., 197 Wooster St., N. Y.

Wm. T. Day, 22 West 3d Street, N. Y.

Heuvelman & Co., 842 Broadway, N. Y.

Blake, McMahon & Co., 517 W. 25th St., N. Y.

G. B. Billerwell, 120 Broadway, N. Y.

E. McGuiness & Co., 356 to 360 E. 76th St., N. Y.

Farrin & McCollough, 71 Watts St., N. Y.

John S. Cochran, 195 S. 5th Ave., N. Y.

Mallon & Rourke, Jane St. and 13th Ave., N. Y.

J. M. Duclos, 120 Broadway, N. Y.

Johnson Bros., 215 & 217 Grand St., N. Y.

James Toner, 211 W. 50th St., N. Y.

James Carney, 205 E. 40th St., N. Y.

Cook & Radley, 214 to 220 E. 37th St., N. Y.

James Taylor, 172 Greene St., N. Y.

E. O. Perrin, Jr., 20 E. 43d St., N. Y.

John F. Outwater, 339 Adams St., Brooklyn.

Howell & Saxtan, 353 Adams St., Brooklyn.

F. W. Wurster, 130 First St., Brooklyn, E. D.

M. McKinney, 29 Furman St., Brooklyn.

J. S. & G. E. Simpson, 28 to 36 Rodney St., Brooklyn.

Healy Iron Works, 5th St., cor. North 4th, Brooklyn, E. D.

Mansfield & Fagan, 232 Willow St., Hoboken.

Q. I want to know whether in writing or verbally, or both ways, you protested to Mr. or Mrs. Hyatt on the payment of these royalties, from the inception of the agreement of 1878 down to the time you stopped paying?

A. We protested in writing after the agreement of 1878 to Mr. and Mrs. Hyatt, and subsequent to the agreement of 1880, orally.

Q. Will you look at the notice now shown you and see if it is a copy of a notice sent you you to them?

A. That is substantially it; the date is May 1, 1879. That was also substantially the purport of our verbal protest. We made our verbal protest during the summer of 1881.

Defendants offered in evidence the notice of protest. Admitted and marked Defendants' Exhibit No. 6.

Defendants' Exhibit No. 6.

MRS. E. A. LAKE HYATT:

You will please take notice that the above returns are made, in accordance with an agreement entered into on your behalf, by your attorneys Thaddeus Hyatt and Theodore Hyatt with the firms of Ingalls & Mark, Bartlett, Robbins & Co., and the subscribers, dated Nov. 1st, 1878. Now as said agreement has been violated by you, in attempts to revive forfeited licenses, and consenting to their transfer, and as said agreement has been further violated by Thaddeus Hyatt in continuing to manufacture tiling, notwithstanding your joint covenant in such agreement, we hereby protest against the said actions as greatly injurious to our rights, and we reserve to ourselves the legal right to reclaim the royalty paid under said license and agreement.

J. B. & J. M. CORNELL.

Q. Up to September, 1881, and afterwards, have you been manufacturing and selling this article, basement extension roof, as it is called?

A. Yes, sir; that is what we took a license under.

Q. Tell the Court at what rates it can be manufactured and sold at a profit, and what profit, with regard to royalties?

Objected to as immaterial; objection sustained; defendants excepted.

Being cross-examined by plaintiff's counsel, the witness testified:

Q. You say you verbally protested in July, 1881; is that true?

A. I think it was in July, at 47 West Eleventh street, to Mrs. Hyatt, and also to Mr. Hyatt—twice to Mr. Hyatt.

Q. Was this July or August?

A. The last interview I had with Mr Hyatt, was, I think, on the 24th of August.

Q. Did you protest in July?

A. I cannot say whether it was in July or early in August.

Q. Didn't you apply to Mr. Hyatt for a new license in July or August, to be issued to yourself under this agreement?

A. Yes.

Q. At that time there was a license issued to you and Mr. Mark, in July or August, 1881, and you applied to have a license issued to you individually, did you not?

A. To both of us individually.

Q. Was that prior or subsequent to your verbal protest?

A. It was at the same time and subsequent. My later protest to Mr. Hyatt was after that. It was the 24th of August. I have not since the 24th of August asked for a new license of Mrs. Hyatt, and I have not since the commencement of this suit against me, at Washington.

Q. Didn't you go to Washington and ask Mrs. Hyatt or Mr. Hyatt for a license, saying to them that you had permission from the licensees, or words to that effect?

A. No, sir. I think nothing was said on the subject of taking a new license. Another subject, kindred to it, did arise perhaps.

Q. Did they grant your application for a new license, in July or August, 1881?

A. No, sir.

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Q. You were formerly in the employ of Mr. Hyatt?

A. Yes, sir some ten years ago; he was in the patent light business at that time himself, or his brother for him.

Q. You subsequently became a principal; you obtained a license from him, and since that time you have been manufacturing?

A. No, sir, we did not obtain a license from him for five years.

Q. You manufactured nevertheless?

A. Yes, sir. We were sued by him as infringers under the patent of 1867.

Q. This agreement of 1878 was made by you gentlemen who were infringers of the patent at that time?

A. A part of them were infringers; we were. In that agreement we were released from any damages from any infringements to 1878, and our customers as well.

Q. Can you see any names on that circular put in evidence by Mr. McCarthy, who were you customers?

A. I have not it before me; I think some of them were my customers.

Q. Under this agreement of 1878, was a power of attorney given to any one to prosecute infringers by Mrs. Hyatt?

A. It was given to John B. Cornell, I think. He was one of the licensees. He was selected by the licensees. We have paid royalties up to the first of August, 1881. Then we rendered an account or statement under the agreement of 1878 up to November 1, 1881. Up to that time there had been no refusal on our part to pay. Myself and the defendant Mark have dissolved partnership; May 1, 1882.

Q. Who does the manufacturing now under the license?

Objected to on the ground that there is no manufacturing done under the

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license; that it appears that the contract has been nullified since the surrender of the patent, and that no new license has been issued; objection overruled; defendant excepted.

A. I have not manufactured any under the license.

Q. Has Mr. Mark?

A. I do not know. Mr. mark has been doing a similar kind of work.

Q. Did he manufacture the article called for by this patent?

A. The articles under the patent for which we took a license were not for the articles, but for the basement extension roof as constructed at the building; the whole as distinguished from specific parts. I presume basement extension roof have been manufactured since the dissolution; I know they have been going up in the city. I suppose he is making the same article now that he made up to the time we rendered our account in November. I have been in the same office with him very seldom since the dissolution.

Q. Have you moved from the office where you were doing work at the time of the dissolution?

A. I was away for months in the country—sick.

Q. Do you wish to be understood that you have no knowledge upon the subject of the manufacture of the articles made by Ingalls & Mark as basement extension roofs?

A. I have seen illuminating plates at Mr. Mark's place being made up.

Q. This is what we call basement extension?

A. Either used for basement extension or for areas, or used merely in the sidewalk; I could not say which.

Q. It is the article which you originally obtained a license to make?

A. No, sir; we never obtained a license to make any article.

Q. You had a license?

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A. For basement extension roofs.

Q. Was it the same article that you saw that you manufactured under that license?

A. For what I know they may have been going into the floor, or might have been going into the outside roof. The business of Ingalls & Mark was the manufacture of vault lights, nothing else; that was the principal business.

Q. Didn't the license from the plaintiff to you give you the right to make illuminated basements and basement extensions?

A. It did. We constructed at the buildings, if that is called manufacturing. We manufactured and sold under that license when we worked at the building. Since the commencement of this suit I have not been estimating on contracts for basement extension roofs. I cannot answer for Mr. Mark. I have told Mr. Hyatt that I had been making estimates for vault lights, but not for basement extensions.

Q. On the articles which you manufactured did you cast the words "Hyatt's Patent Basement Extension, Patented 20th of August, 1867"?

A. We cast that upon the frame when we worked at the building; not otherwise. I cannot say whether that has been inflexibly followed. I am not aware of its being done recently. The stamp has been discontinued, I think; at what time I am unable to say—within a year or two; I cannot speak definitely. I have not myself superintended much the work at the buildings. For nearly a year I have been out of the business altogether. Prior to the time I went out of the business, I could not say from recollection positively whether it was put on or not. The license calls for that casting being put on. Mr. mark is in the manufacture of vault lights; he has always been in it. Our license under Mrs. Hyatt embraced only articles used in the basement extension when it was a basement extension.

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Q. These basement extensions you have manufactured?

A. That I cannot say.

Q. Do you wish the Court to understand that you do not know whether you have manufactured basement extension roofs?

A. We manufactured them up to September 21st, 1881/

Q. Have you manufactured articles corresponding to them since September 21st?

A. We have manufactured the vault lights—the plates.

Q. Have you manufactured articles that correspond to basement extension roofs since September?

A. There is no difference between articles used for floor lights, used on the roof, or used in the sidewalk.

Q. Have you manufactured articles corresponding to basement extensions roofs since September?

Objected to as being unanswerable, there being no such thing as the manufacture of a basement extension roof, any more than of the manufacture of a piano or a house; objection overruled; defendants excepted.

A. We have manufactured illuminated gratings. These are used in the basement extension roofs. There is no such thing as the manufacture of basement extension roofs; there is the construction of basement extension roofs—the same as the construction of a house, or any other thing.

Q. Have you constructed these basement extension roofs since September?

A. I can say yes in a qualified sense, up to May, 1882.

Q. Since that time has Mr. Mark continued to construct?

A. I cannot answer for Mr. Mark's business. I have not had an office with him since that time.

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I do not remember that he has told me, or said anything to me about constructing this article since the dissolution. I do not remember any definite conversation now upon that subject. My office has not been in the same building with Mr. Mark since the first of May. I have been there occasionally in the last six months. I have seen in the yard plates which may be used in the basement extension, the roof of the building, the floor of the building, or upon the sidewalk. I saw them every day; I saw them to-day. I do not go there frequently.

Q. Have you an interest in the manufacturing with Mr. Mark now, under this license which you have received from the plaintiff?

Objected to on the ground that there is no license; objection overruled; defendants excepted.

A. I have not.

Q. Have you assigned to him any interest you had in this license?

A. No, there has been no disposition of it in any way; we dissolved. There has been a disposition of the assets of the firm.

Q. What disposition was made, if any, of the firm's interest in this license from the plaintiff?

Objected to on the ground that witness has affirmed that he has no interest in any license; objection overruled; defendants excepted.

A. Nothing was done with it.

Q. Have you had any conversations since the dissolution with Mr. Mark with reference to the construction or sale or any work for basement extensions or articles corresponding to basement extensions?

Objected to as too general; objection overruled; defendants excepted.

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A. I do not remember any conversation whatever.

Q. Do you wish to be understood as stating that since the dissolution of the firm, there has been no division of the interest under this license, and that there has been no conversation or arrangement between you and Mark as to any articles manufactured under it, or as to the sale or profits derived from the sale?

Objected to; objection overruled; defendants excepted.

A. No, there has not been. So far as I remember, there has been complete silence between us. Mr. Mark has not made any returns to me or to my agent of work done. I have seen in Mr. Mark's place, since the dissolution, frames to be put into vault covers; I cannot say whether to make basement extension roofs, or sidewalk covers, or area coverings, or roof light coverings. I would not know a frame designed for making an area covering from a roof covering, if I saw it.

Q. Have you offered to surrender this license to the plaintiff?

Objected that there is no license to surrender; objection overruled; defendants excepted.

A. I have not.

Q. You do not know of Mr. Mark having done it?

A. I do not know that he has. I saw Mr. and Mrs. Hyatt at their place in West Eleventh street, soon after their return from Europe, from the 1st to the middle of September; saw them three or four times at that place, between that, probably, and the 1st of October; I saw them also in October, at our place at 5 Worth street, and in September Mrs. Hyatt went with me and called on Mr. Cornell; then I had an interview with them just

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previous to the 24th of November. I did not see them between those times. I saw them in September, in October and November. It was in the latter part of October that I saw them in Worth street, I think. I think the first time after that interview at Worth street, was just previous to the 24th of November, at Eleventh street; a few days before Mr. and Mrs. Hyatt were present. From recollection it was not over a week before November 24th. I cannot state positively. I saw Mrs. Hyatt on the 24th at the New York Hotel. Mr. Cornell, Mr. Mark, Mr. Angier, Mr. Elliot and myself were present. I do not remember any one else. The papers were signed at that time. Bartlett & Robbins were not present. I saw Mr. Elliot, I think, on the 23d and 24th, at the New York Hotel. On the 23d Mr. Angier and Mr. Elliot were present. I saw Mr. Gleason there, and I think Mrs. Elliot, but not when we were conversing on business.

Q. What agreements were in writing? How many were made at that time?

A. I think there was only one which both parties signed. There was a trust deed read, and a power of attorney was given to me and to Mr. Cornell, for the purpose of prosecuting infringers.

Q. (Paper shown witness). Is not that the written agreement signed by both parties?

A. I suppose that is the one.

Agreement offered and admitted in evidence, and marked Plaintiff's Exhibit E.

Plaintiff's Exhibit E.

Whereas, certain controversies having arisen between the respective parties to the foregoing agreements in regard to their several obligations under the same, now, therefore, this auxiliary or supplemental agreement is entered into this twenty-

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fourth day of November, 1880, by and between Elizabeth A. L. Hyatt and the firms of Ingalls & Mark, J. B. and J. M. Cornell, and Bartlett, Robbins & Co., as follows:

First.—The foregoing agreement bearing date November 21, 1878, is hereby ratified and reaffirmed in all respects, except in so far as the same may be inconsistent with the provisions of this auxiliary agreement.

Second.—It is mutually agreed that all suits and actions at law or in equity, now pending between the parties hereto, or any of them, shall be forthwith discontinued, without costs to either party as against the other.

Third.—Said Elizabeth A. L. Hyatt hereby forever releases and discharges said several firms of Ingalls & Mark, J. B. and J. M. Cornell, and Bartlett, Robbins & Co., and each of them and each of their legal representatives, from the payment of all royalties or fees under the several license dated November 21, 1878, granted to and now held by said firms respectively for the period of six months.

Fourth.—It is further agreed and understood that nothing contained in said agreement or licenses shall bind the above named licensees to the payment of royalties for roofs or roof lights, other than basement extension roofs, until such other roofs or roof lights shall have been judicially determined, in an action against parties other than said licensees, to be covered by said patent or reissue; but that the said Thaddeus shall have the privilege or manufacturing such other roofs or roof lights, anything in said agreement to the contrary notwithstanding.

Fifth.—Said Elizabeth A. L. Hyatt agrees that she will not, without the written consent of all said

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several firms of Ingalls & Mark, J. B. and J. M. Cornell, and Bartlett, Robbins & Co., procure, or consent to, the assignment of any license under said patent granted prior to November 21st, 1878, within the territory for which said several firms are licensed.

Sixth.—It is understood and agreed that Elizabeth A. L. Hyatt may license the Dale Tile Company of New York, upon the same terms and conditions as said firms of Ingalls & Mark, J. B. and J. M. Cornell, and Bartlett, Robbins & Co. are licensed, if said Dale Tile Company becomes a member of the association mentioned in said agreement upon the terms and conditions set forth in said agreement.

Seventh.—It is further understood and agreed that Elizabeth A. L. Hyatt may issue a new license to William J. Fryer upon the same terms and conditions as those issued to other members of said association upon condition that he shall surrender for cancellation the license now held by him, and that he becomes a member of such association under the terms and conditions contained in said agreement.

In witness whereof the parties hereto have hereunto set their hands and seals the twenty-fourth day of November, 1880.

ELIZABETH A. L. HYATT [L.S.]

In presence of F. H. ANGIER.

INGALLS & MARK, by J. K. INGALLS. [L.S.]
J. B. & J. M. CORNELL, by J. B. CORNELL. [L.S.]
BARTLETT, ROBBINS & CO., by D. L. BARTLETT. [L.S.]

In presence of PH. H. HOFFMAN.

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STATE OF NEW YORK,
City and County of New York,

ss.:

On this 24th day of November, 1880, before me, a notary public in and for said city and county, personally appeared Elizabeth A. L. Hyatt, to me known and known to me to be one of the individuals described in and who executed the foregoing agreement, and she acknowledged that she executed the same.

And on the same day, personally appeared before me, Joshua K. Ingalls, to me known and known to me to be one of the firm of Ingalls & Mark, described in and who executed the foregoing agreement, and acknowledge that he executed the same as the act and deed of said Ingalls & Mark.

And on the same day, also, personally appeared before me, John B. Cornell, to me known and known to me to be one of the firm of J. B. & J. M. Cornell, described in and who executed the foregoing agreement, and acknowledged that he executed the same as the act and deed of said J. B. & J. M. Cornell.

FRANK M. ANGIER, Notary Public, New York.

STATE OF MARYLAND,
City of Baltimore,

ss.:

On this twenty-seventh day of November, A.D., 1880, before me, personally, came D. L. Bartlett, a member of the firm of Bartlett, Robbins & Co., to me known to be one of the individuals described in and who executed the within agreement, and acknowledged that he executed the same for the purposes therein mentioned as his act and as the act of said firm.

PH H. HOFFMAN,
Commissioner for New York in
Maryland and the City of Baltimore.

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Q. The conversation which you referred to in regard to what was said about infringers, was upon the day previous to the execution of this paper and the trust deed?

A. Yes, and on the day, too.

Trust Deed offered in evidence, and marked Plaintiff's Exhibit F.
Plaintiff's Exhibit F.

In consideration of the sum of one dollar to me in hand paid by Frank H. Angier, of the city of New York, and Robert K. Elliot, of the city of Washington, the receipt whereof is hereby acknowledged, I, Elizabeth A. L. Hyatt, of the city of New York, patentee, under certain Letters Patent of the United States, No. 68,332, dated August 27th, 1867, reissued August 6th, 1878, do hereby sell, assign, transfer and set over unto the said Frank H. Angier, and Robert K. Elliot, all my right, title and interest in all royalties and fees hereafter to become due to me as such patentee, under or by virtue of any and every license heretofore granted by me under said patent, or by Thaddeus Hyatt, or Theodore Hyatt, as attorney-in-fact for me, to any person or persons for the manufacture or sale within the States of New York, New Jersey, Pennsylvania, Delaware, Maryland, and the District of Columbia, of the articles patented under said Letters Patent; except, however, that nothing herein contained shall be held to assign or transfer to said Angier and Elliot my right or interest in royalties due, or hereafter to become due, under the several licenses dated November 21, 1878, granted to, and now held by the firms of Ingalls & Mark, J. B. & J. M. Cornell, and Bartlett, Robbins & Co., respectively.

To have and to hold the right and interest hereby assigned in trust for the following uses and purposes:

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1. To collect, demand, due for the receive all fees and royalties hereafter to become due under said licenses, and each of them, at the full sum of sixty cents per square foot, according to the terms and conditions of said licenses.

2. To retain, out of the feed and royalties so collected, one half thereof—the amount so retained to constitute a fund to be applied in the prosecution of infringers of said patent, when such prosecution shall, in the judgment of a majority of New York licensees, subsequent to November 20th, 1878, become advisable.

3. To pay over to me all the rest, residue and remainder of such fees and royalties so collected.

It, however, it shall be found by said Angier and Elliot that through or by any action of mine it shall not be legally possible to collect the full amount of sixty cents per square foot under said licenses, or either of them, then said Angier and Elliot shall retain the sum of thirty cents per square foot, and pay the surplus only to me of the amount collected.

The said Angier and Elliot shall, on the first day of January, 1881, and quarterly thereafter, render to me a full and true account of all moneys received and paid out by them under the trusts hereby created, and if, at the time of such accounting, there shall appear to remain in their possession any part of said fund which shall not be required for the prosecution of infringers, such part shall be paid over to me, or disposed of as I shall direct. And for the better execution of these presents and of the trusts hereby reposed, I hereby make, constitute and appoint the said Frank H. Angier and Robert K. Elliot, and each of them, my true and lawful attorneys irrevocable, for me and in my name, place and stead, in the States of New York, New Jersey,

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Pennsylvania, Delaware, Maryland, and the District of Columbia, to commence, carry on, institute, or prosecute any suit, either at law or equity, or other proceeding, or any way howsoever for the violation or infringement of my rights under said Letters Patent, with full power and authority to do and perform all acts, deeds, matters and things which can or may be necessary in the execution of the trust hereby created, as fully and completely as I might or could do were these presents not executed, and attorneys, one or more under them, to make and appoint, with full power of substitution and revocation, hereby ratifying the confirming all that my said attorneys, or their attorney or attorneys, shall do or cause to be done in the premises.

In witness whereof, I have hereunto set my hand and seal this 24th day of November, 1880..

ELIZABETH A. L. HYATT [L.S.]

In presence of

F. H. ANGIER.

(The words, "or either of them", on third page, being interlined, and the words, "civil or criminal," being struck out before execution.)

Q. Were there any other papers executed at this time besides the two you have just seen?

A. There was a paper restricting Tice and Jacobs.

Q. Executed at that time?

A. I think so; at that time or shortly after.

Q. I want to know at that time what other paper was executed?

A. A power of attorney to me.

Q. So far as you can state, now, those were the only three papers executed at that time, on that

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day—the power of attorney, the trust deed, and the agreement between the licensees and the plaintiff?

A. The other was also, I think, the notice. I think that was executed on the 24th of November; I am not positive; Exhibits E and F were executed at the same time and in the same room, but only by one party. At the time of this agreement the licensees had commenced the suits against Mr. and Mrs. Hyatt, and the other against Mr. and Mrs. Hyatt, Mr. Fryer and Tice & Jacobs. One of those suits had been tried, and the result was the papers in evidence here; the other untried. Mrs. Hyatt had a suit against Mr. Cornell at that time for an infringement on roof lights in the United States Circuit Court of New York. In that suit they alleged that we infringed their patent for roof light and floor lights. Mr. Hyatt claimed that we had not the right to make roof lights.

Q. Under article 4 of this agreement you obtained that privilege at that time; that controversy was settled by the agreement of November 24th?

A. We obtained it at the first. I can hardly answer yes or no.

Q. This clause, article 4, gives you a right to manufacture, a right which was denied by Mrs. Hyatt in her suit for infringement against you?

A. Yes, a right denied in that suit.

Q. By that settlement this thing was conceded to you?

A. No, that is not the thing; it was merely to protect us against that kind of thing; that is all.

Q. You caused article 4 to be inserted in that agreement—the licenses?

A. No, it was from the other side.

Q. She gave that right to you?

A. She proposed to establish a right under the roof light clause.

Q. I ask whether that was a concession given by her to you, or a concession from you to her; which was it?

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A. It might be understood either way.

Q. How did you understand it; as a concession to you or her?

A. We understood it as laying aside that controversy.

Q. And there could be no other action for infringement against you under that clause?

A. Not until she has tested her right; we have never paid royalties under that. The licensees belonging to the Patent Light Association have paid no royalties for roof lights since the agreement of 1880. The licensees under the patent of 1867, before it was reissued, other than those belonging to the Patent Light Association, did agree, I believe, to pay on roofing and floor lights.

Q. There have not been any new licenses granted since 1878—since your license?

A. I cannot tell that. So far as I know there have not been.

Q. The licenses granted prior to your licensee contained a clause by which the licensees were liable for royalties on roof lights?

A. Yes.

Q. The agreement speaks of an abatement of six months' royalties—do you remember the amount of these back royalties?

A. I do not remember exactly; they remitted six months, whatever they were. The suit brought against Mrs. Hyatt and Tice & Jacobs and Fryer was also withdrawn at that time.

Q. You gave the name of certain persons who, you say, were infringing these patents—did you know this in 1881?

Q. Yes. I did not bring suit under my power of attorney against any of them. The defendants were Arnold & Constable, and I think Gunther was one—also a party in Buffalo; they were owners to whom the patented article was furnished. I do not know of any suit brought against any manufacturing infringer except Tice & Jacobs. They have a license for the city, not out of the city. I know

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Mr. French; he is a manufacturer of vault lights.

Q. Did he ever apply to your association for a license?

A. I think he spoke about it; he was willing under certain circumstances; I am not certain that he made a formal application. I went on to Washington this winter, soon after the first of January. I was at the house of Mrs. Elliot at Hyattville. I saw Mrs. Hyatt there. I had a conversation at that time there with both her and Mrs. Hyatt in the presence of each of them.

Q. Didn't you, in her presence, at that time, ask Mrs. Hyatt, in substance, to let you have a license under the patent of 1867, and didn't they urge as an objection that they had not the consent of the licensees, and you then said that you had already obtained their consent in the summer previous, or words to that effect; didn't that occur?

A. That matter might have been referred to; that consent had been obtained the year previous. Something was said about my wanting a license. There was not any definite conclusion reached at that interview whether she would give me the license or not; the thing was in status quo. This was January, 1883. I did have the consent of the licensees at that time; that was in the summer previous to the reissue. I don't know that I used the works asking them in the same conversation that I be let out from this controversy. I do not understand the meaning of "let out;" that is not my idea.

Q. Didn't Mr. Hyatt ask you what was the object of your visit, and you said that you wanted to be let out, or words to that effect?

A. I don't remember those words. When Mrs. Hyatt was there he asked me the object of my visit, and Mrs. Hyatt explained it to him, or I did. Mr. Hyatt said that he thought that might be very well for me, but he didn't see how it was going to benefit them. What I asked was that she should withdraw all complaint against me; that I was sick, and unable to go through the trial of this matter. She

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wanted to know what advantages that would be to her, and Mr. Hyatt thought it would be none.

Q. Did you suggest any advantage; did you say anything about being a witness in this trial?

A. I think Mr. Hyatt spoke about my being a witness on this trial. I did not say I would not testify. Mr. Hyatt said I could be supœnaed. I may have used the expression that they would not want an unwilling witness, but not in that connection. I used the expression as referring to them. If I had withdrawn they would fear I would be an unwilling witness. No, I did not think that would be an advantage. I didn't ask for a license, and did not get any, either. In the summer of 1881, I think, I made an application to the plaintiff for a license. I made out a form of it myself, in my own handwriting.

On re-direct examination by defendants' counsel the witness testified:

I first heard of the reissue of September, 1881, about the time of the reissue, but not in any authentic way; I think Mr. Hyatt came into the office and said he had got a reissue, but didn't give us a copy. We first learned about the character of the reissue in the latter part of October, 1881.

Q. To one of the questions put by my brother, your answer was "Yes, in a qualified sense;" please qualify as you were about to do?

A. I do not remember the question.

Q. You said that you saw plates in Mr. Mark's establishment which might be for basement extensions, or frame for vault covers, or roof covers. Please explain that more lucidly?

A. I would state that the illuminating grating is a piece of iron, usually of cast iron, filled with smalled glasses pressed in a mold. The rear extension roof is usually made of beams and long plates of the illuminating tile, and they are often made with frames and panels put in, the same as a

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basement extension, so that by seeing the frames I could not tell whether they were designed for a basement extension of a roof cover; and those in area light are put in precisely the same as basement extensions, and those put in floors are often put in frames, and those put in upright places in the wall.

Q. Would not the process of manufacture apply equally well to each and all these specific cases?

A. Substantially the same.

Q. In regard to the papers signed in 1880, at the time of his general agreement, was there not also a paper signed discontinuing your action against Mrs. Hyatt?

A. I think so; it was done by the attorneys.

Being further cross-examined by plaintiff's counsel, the witness testified:

Q. Mr. Yeaman was Mrs. Hyatt's attorney in the suit, was he not?

A. I know he had been, but whether he was then or not, I do not know. There was no other attorney present except Mr. Elliot; he is the attorney in fact.

The defendants then called as a witness on their behalf Talmadge W. Foster, who, being duly sworn, testified:

I am an attorney at law of the city of New York. I was the attorney of J. B. Cornell, one of the licensees under the patent of 1878. He is the gentleman referred to who had power of attorney from Mr. Hyatt to bring certain suits. I brought one suit against Sylvester M. Beard and his partners, for infringement, in the fall of 1880; August, 1880, the bill was filed. That suit was discontinued by consent.

Q. Why was it discontinued?

Objected to as immaterial; objection sustained; defendants excepted.

Q. When was the discontinuance?

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A. It was early in 1882. I think the consent was given in March, 1881.

Q. Were you, at the time of the discontinuance, aware of the reissue of September, 1881?

Objected to as immaterial and irrelevant; objection sustained; defendants excepted.

Defendants when called as a witness on their behalf, FRANK H. ANGIER, who, being duly sworn, testified:

I am an attorney-at-law. I was acting for Messrs. Ingalls & Mark and others in 1880. I have a recollection of the time when a certain trust deed, which has been read here, was made and executed. I am one of the gentlemen mentioned in that trust deed. I resided at the time in Richmond County, in the State of New York. My co-trustee, R. K. Elliot, resided, I think, in Maryland, a short distance from Washington. Pending the negotiations, and about the time the trust deed was drawn, Mr. Elliot was acting for Mrs. Hyatt. Under the terms of that trust deed, I brought several suits against infringers of the Hyatt patent of 1878; I brought six suits against infringers of Mrs. Hyatt's patent; I brought four suits against owners of buildings in the city of New York, and one suit against one owner of a building in the city of Buffalo. The time for taking testimony in those cases had about expired at the time of the surrender of the patent. One suit was brought against Bruce and others, one against Gunther, one against Welch, one against Arnold and other, and one against Haven, of Buffalo—

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six in all. They were against owners of buildings.

Q. You have had experience in patent litigation?

A. Yes, sir.

Q. Will you state as a matter of law what the effect upon those suits was of the surrender of the patent of 1878?

Objected to; objection sustained; defendants excepted.

Q. Did you go on with the suits?

A. I did not; I afterwards brought a suit on behalf of the licensees against the firm of Tice & Jacobs.

Q. Was that before or after the patent had been pronounced invalid by Judge Baxter of the United States Circuit Court?

Objected to; objection sustained; defendants excepted.

Q. At what time did you bring those suits?

A. The suit against Tice & Jacobs was commenced November 17, 1881.

Defendants then called as a witness on their behalf, JACOB JACOBS, who, being duly sworn, testified:

I reside in Brooklyn; I am a member of the firm of Tice & Jacobs. That firm has been in existence since November, 1879, at 71 Centre street. I have a license for constructing and selling what is called the basement extension roof.

The license offered in evidence; objected to; excluded; exception.

Q. Did Mr. Hyatt give you a license to manufacture and sell his invention after November, 1878?

120

A. The license was assigned to me by Alexander T. DePuy.

By the Court:

Q. Did Mr. Hyatt give you any other license than the one that has been exhibited?

A. No, sir.

Q. Did you and Mr. Tice manufacture and sell the patented invention of Mr. Hyatt in the city of New York after November, 1878?

Objected to; objection sustained; defendants excepted.

Q. Did you manufacture and sell in the city of New York after November, 1878?

Objected to; objection sustained; defendants excepted.

Q. Are you manufacturing or selling now in the city of New York what is called the patented invention of Mr. Hyatt?

Objected to; objection sustained; defendants excepted.

Defendants' Exhibit No. 8 shown witness.

Q. Did you receive that notice from Mrs. Hyatt dated November 24, 1880?

A. Our firm did receive a paper of this kind.

(The Court admitted in evidence the license, marked Defendants' Exhibit No. 7).

Defendants' Exhibit No. 7.

Whereas, Letters Patent of the United States were granted to Thaddeus Hyatt, on the 12th day of November, 1845, for an improvement in "Vault Covers," and were reissued to said Hyatt, on an

121

amended specification, as a patent for an "Illuminating Grating," on the date of the 3d day of April, 1855, which reissued patent was extended for seven years from the 12th November, 1859, by the Commissioner of Patents, and which said reissued and extended patent was subsequently, by the action of Congress, again extended for a period of seven years, from the 12th day of November, 1866; and, whereas, said Letters Patent were assigned by the said Hyatt to Elizabeth Adelaide Lake, by two assignments, bearing date respectively August 9th, 1866, and April 23d, 1867.

And, whereas, Letters Patent were granted to Elizabeth Adelaide Lake (on an application of the said Thaddeus Hyatt), on the 27th day of August, 1867, for a basement extension, under the title of "Improvements in Illuminating Roofs and Roof Pavements," which said improvements, as fully appears by the drawings and specification of such patent, consist in an enlargement of the purposes and uses of a "vault cover" or "coal-hole plate," and the application of such coal-hole plates under new conditions, forms and combinations, to new and useful purposes, to wit: illuminating risers and treads for making illuminating steps; also combining such illuminating steps with illuminating platforms to form illuminating stoops; also illuminating sills and sill risers in the doorways of stores, united to illuminating platforms over areas, forming a water tight illuminating roof to an apartment or space below. Also the shaping of illuminating coal-hole plates, so as to join a number of them together in combination with suitable framing to make extended surfaces or illuminating footways, of any size, shape or dimensions, suitable for being walked upon, and as a fire and burglar proof protection to buildings. And furthermore, and broadly, the general combination of thick glass and iron into illuminating platforms, sills, risers, treads, steps and stoops, when these illuminating surfaces are combined with the front of buildings, in such a

122

way as that, instead of obstructing and closing the doorways, they facilitate ingress thereto and egress therefrom, the combination causing the street sidewalk to become a portion of the mechanical construction of the building, in the form of a roof to the space below.

Now, this agreement, made this 7th day of July, 1871, between the said Elizabeth Adelaide Lake by her attorney, the said Thaddeus Hyatt, of the one part, and James L. Jackson and Peter H. Jackson, composing the firm of James. L. Jackson & Brother, of the other part, witnesseth as follows:

ARTICLE 1. The said members of the said firm hereby acknowledge the validity of the said Letters Patent to said Hyatt and to E. A. Lake.

ARTICLE 2. The said members of the said firm consent that the said E. A. Lake may, without prejudice to this agreement, hereafter reissue when, and as often as he shall chose, the said patent of August 27th, 1867.

ARTICLE 3. The said E. A. Lake, on the terms and conditions herein set forth, hereby licenses the said members of the said firm to manufacture at the city of New York only, and sell at any place in the United States, the illuminating gratings set forth in the said patent to said Hyatt, as reissued and extended, and as set forth in said patent of the 27th of August, 1867, to said E. A. Lake, except at Boston, Charleston and Cincinnati, and except in the States of Illinois, Missouri and Kentucky, and excepting such other States and places as may be hereafter reserved. This license not to be assigned without the written consent of said E. A. Lake.

ARTICLE 4. The said members of the said firm hereby agree not to manufacture before the twelfth day of November, 1873, any illuminating gratings, except such as are made of rough plate glass, the said rough plate glass not to less than four inches in its shortest diameter, and the gratings in which

123

such glass is set to have no raised surfaces of protecting metal upon it.

ARTICLE 5. The said members of the said firm agree to pay to the said E. A. Lake the sum of sixty cents per square foot (tile measurement) for the privilege of making and selling illuminating gratings under this license.

ARTICLE 6. After November 12th, 1873, no royalties are to be paid on illuminating coal hole plates, used to light coal holes, not when placed in the deck of a vessel.

ARTICLE 7. From and after the date of this agreement, no royalties are to be paid on floor lights where the apertures in the grating exceed nine inches in their shortest diameter.

ARTICLE 8. The said members of the said firm shall make payment at the end of each month for all the illuminating gratings which they shall have made and sent away from their premises during such month; they shall also, at the end of each quarter commencing with the date of this license, or within ten days thereafter, render an account in writing under oath, to said E. A. Lake, setting forth the aggregate number of square feet of illuminating gratings which they shall have sold and sent away from their said premises, the names of the persons to whom sold, and the places to which such illuminating gratings have been sent to be used, and the quantity sold to each of said persons; which quarterly account shall also include any and all illuminating gratings which have been omitted from any previous returns.

ARTICLE 9. The said members of the said firm, from and after the date of this license, shell cause to be cast upon the iron work in each and every illuminating grating which they shall manufacture under this license, or upon the encircling iron frame work in which such gratings are set, the words and figures "Hyatt's Illuminating Roof, patented August 27th, 1867."

124

ARTICLE 10. If either party to these presents shall knowingly and intentionally violate this agreement, the party so offending shall forfeit all his rights thereunder.

ARTICLE 11. This agreement shall bind and apply to the legal representatives of said E. A. Lake in case of her death, and shall bind and apply to the said

ARTICLE 12. This agreement shall be valid and binding during the continuance of any and every term for which said Letters Patent of August 27th, 1887, may be hereinafter extended.

In witness whereof the said parties hereto have hereunto set their hands and seals.

E. A. LAKE, by her attorney,

THADDEUS HYATT. [L.S.]

Witness, L. R. CASE.

JAMES L. JACKSON. [L.S.]
PETER H. JACKSON. [L.S.]

I hereby assign all my right, title and interest in the above and within license to Alexander T. De Puy.

JAMES L. JACKSON. [L.S.]

Witnesseth this 21st
February, 1879.

DAVID PETIGREW.

I hereby assign all my right, title and interest in the within and foregoing license to Jacob Jacobs.

ALEXANDER T. DE PUY. [L.S.]

Witness this 19th day
of April, 1879.

THADDEUS HYATT.

125

Defendants also offered in evidence three notices admitted and mark Defendants' Exhibits 8, 9 and 10.

Defendants' Exhibit No. 8.

JACOB JACOBS, ESQ.:

Sir.—You are hereby notified that, from and after this date, in accordance with the terms of the license, dated July 7th, 1871, granted by me to James L. Jackson and Peter H. Jackson, and subsequently assigned to, and now held by you, I reserve and except from said license all right to sell "Basement Extension Roofs," or materials for "Illuminated Basements," in any and all places in the United States, outside of the City of New York.

New York, November 24, 1880.

ELZABETH A. L. HYATT.

Defendants' Exhibit No. 9.

WASHINGTON, March 16, 1881.

To JACOB JACOBS and TICE & JACOBS, New York:

You are hereby notified that in pursuance of a certain notice, bearing date November 24, 1880, and addressed to Jacob Jacobs, the right to sell "Basement Extension Roofs," or materials for "Illuminated Basements," in any and all places in the United States, outside of the city of New York, was expressly reserved and excepted from the license claimed by you or either of you. Notwithstanding which, it has been brought to my notice that you have disregarded said exception and reservation so communicated to you as aforesaid. Now, this is to notify you that any act or acts on your part in violation of said notice and the express exceptions and reservations thereof, will, from and

126

after the date of the service of this notice on you or either of you, be deemed and taken to be evidence of an intention to disregard said notice, and will be treated accordingly; said original notice of November 24, 1880, being hereby in all things reaffirmed.

ELIZABETH A. L. HYATT.

By R. K. ELLIOTT, her attorney in fact.

Defendants' Exhibit No. 10.

NEW YORK, July 20th, 1881.

Messrs. TICE AND JACOBS:

Gentlemen.—I beg to recall to your recollection the fact that the following named manufacturers are sold and exclusive licensees for the manufacture and sale of my Basement Extension Roofs in the following states, viz.:

Peter H. Jackson, of San Francisco, for the city of San Francisco and States of the Pacific slope; Edwin Lee Brown, of Chicago, for the States of Illinois, Iowa, Minnesota, and Wisconsin, including that portion of Indiana lying north of a line drawn south of and including Indianapolis, and that portion of Michigan west of a line projected due north from the easterly border line of Indiana; E. K. Chamberlain, of Cleveland, for the States of Ohio and Missouri; J. B. & J. M. Cornell, Ingalls & Mark, and the Dale Tile Co., of New York, and Bartlett, Robbins & Co., of Baltimore, for the States of New Jersey, Pennsylvania, Delaware, Maryland and the District of Columbia; G. W. & F. Smith, Smith & Lovett, and Ham, of Boston, for the city of Boston, and seventy miles around the same.

The license held by each licensee makes it his duty to always know where the work is going that

127

he contracts to make, and for the following reasons:

1st. That he may keep himself in the line of his duty by not making working for any place outside the territory for which he is licensed.

2d. To enable him to make faithful and true returns of the places where the work is laid.

You are, therefore, hereby notified to make strict inquiry of any and all persons applying to you for estimates for Patent Light Work, as to the place or places to which such work is to be sent, and where it is to be used, and that any interference by you with the exclusive rights so as aforesaid granted to such firms and persons will not be tolerated; the notices heretofore served upon you by me, dated November 24, 1880, and by R. K. Elliot, my attorney in fact, dated March 16th, 1881, reserving from the license now held by Jacob Jacobs the right to sell such Basement Extension Roofs or materials therefore, in any and all places in the United States outside of the city of New York, being hereby in all aspects reaffirmed.

ELIZABETH A. L. HYATT.

Q. The license was given to you in what year and month?

A. The license was given to me on April 19, 1879, by Mr. Thaddeus Hyatt. I gave him for it twenty years' hard labor. I gave him then nothing for it. There was nothing said when he gave it to me. I had no conversation with him before with regard to this license. I did not know he was going to give it to me. I had then been in his service about twenty years, working for him on weekly wages—$12 per week. When he gave me the license he said, "Mr. Jacobs, here is a license; you cannot

128

work on this license for sixty cents a foot; the way I can do is this, that license will be thirty cents for the use of shop and tools."

Q. Whose shop and tools were they?

A. Mrs. or Mr. Hyatt's.

Q. What stop was referred to?

A. The lower part of the building, 25 Waverly place. That was where Mr. Hyatt had been carrying on this business some eight years. He got that license from Mr. Alexander T. DePuy. He did not tell me he had got it from Mr. DePuy, or had paid Mr. DePuy for it. When Mr. Hyatt gave me the license, I was in the office at 25 Waverly place. Mr. Hyatt had promised me a license a year or a year and a half before that.

Q. Did you see where he got the license from; did he take if from his person, or deck, or what?

A. I could not say that. Mrs. Hyatt was not present. He then told me I could go on and work if I would pay 30 cents a foot royalty and 30 cents for shop and tools. I did not see the Patent Light Association about the license. I did not go to them for any purpose, or to any one with regard to this license. My name was in it at the time I got. "Jacob Jacobs" is in Mr. Hyatt's handwriting; so is the other part, "I hereby assign &." My name was written in at the interview when he gave me the license. I believe it had been in blank up to that time. I went on, and manufactured under that license at 25 Waverly place. Our firm, Tice & Jacobs, was formed in November, succeeded. We went into business in Centre street. We have manufactured under that license ever since, and are doing so now. We take our orders in the city of New York always. We have sold our material in the city of New York, and sent it out, free on board, in the city of New York; that is, a party sends us drawings and we furnish tiles and frames ready to lay, free on board the cars in the city of New York. Those orders come from all parts of the country. That

129

has been constant. We are doing it now. We did that after these three notices had been sent to us from Mrs. Hyatt forbidding us to do so. During all that time we have made returns to Mrs. Hyatt of our work, and are doing so now. Those returns show where those goods have been sent. We have paid Mrs. Hyatt royalties on the goods thus sent to different parts of the country whenever we made our returns. I remember a suit brought against me by Mrs. Hyatt, tried in the Supreme Court last April.

Q. What have been you average prices per square foot during the years 1881 and 1882?

Objected to by plaintiff's counsel; overruled.

Being cross-examined by plaintiff's counsel, the witness testified:

Mr. Hyatt carried on business at Waverly place; I was employed by Mrs. Hyatt. So far as I know, Mrs. Hyatt had no interest in that business at 25 Waverly place. Since November, 1880, we have made our payments to Mr. Angier or Mr. Elliot. We have not since that time rendered any statement to Mrs. Hyatt. I know Mr. Mark is doing work; whether Mr. Ingalls is, I do not know.

Q. Has he been working under this license for the last year?

Objected to; objection overruled; defendants excepted.

A. Yes, he had been working; I know he is manufacturing basement extensions. I have no office or workshop outside the city of New York; all of our work is done in Centre street. Orders are sent to our shop indiscriminately from different places, and we fill them and send them away.

130

Being further examined for defendants, he testified:

After July, 1881, we sent the returns to R. K. Elliot, Mrs. Hyatt's attorney in fact. We last paid royalties to R. K. Elliot last month.

Defendants offered in evidence complaint in suit of Mrs. Hyatt against Tice & Jacobs, dated December, 1880. Admitted and marked Defendants' Exhibit No. 11.

Defendants' Exhibit No. 11.
SUPREME COURT

OF THE STATE OF NEW YORK.

Trial desired in the City and County of New York:

ELIZABETH A. L. HYATT

against

JACOB JACOBS and GEORGE W. TICE.

The plaintiff, by F. H. Angier, her attorney, complaining of the defendants, alleges:

That at the times herein mentioned, she was and still is a resident and citizen of the city, county and State of New York.

II.

That the defendants, Jacob Jacobs and George W. Tice, are copartners, transacting business in

131

said city of New York, under the firm name and style of Tice & Jacobs.

III.

That heretofore, to wit, before the 27th day of August, 1867, one Thaddeus Hyatt, who was then a citizen of the United States, being the original and first inventor of a new and useful improvement in illuminating roofs and roof pavements, not at that time in public use, nor on sale with his consent or allowance for more than two years, made application in due form of law to the Government of the United States for its Letters Patent for such improvement, to be issued upon his application and direction then made, to this plaintiff, upon which application such proceedings were duly had that on the said 27th day of August, 1867, Letters Patent of the United States, dated on that day and numbered 68,332, were issued and delivered to the plaintiff for said invention, entitled "An Improvement in Illuminating Roofs and Roof Pavement," whereby was granted to the plaintiff, her heirs, administrators or assigns, for the term of seventeen years from said date, the full and exclusive right of making and constructing, using and vending to others to be used, the said improvement, as will more fully appear by said Letters Patent, or a copy thereof to be produced and shown to the Court at the hearing hereof.

IV.

That the plaintiff, prior to the 6th day of August, 1878, finding that the said patent was inoperative by reason of a defective or insufficient specification, and the said error having arisen by inadvertency, accident and mistake, without any fraudulent or deceptive intention on the part of the plaintiff, surrendered said patent to the Commissioner of Patents, in accordance with the Statutes

132

of the United States in such case made and provided, and that thereupon new Letters Patent of the United States for the same invention, upon duly amended specifications, were on said 6th day of August, 1878, duly issued and delivered to plaintiff according to law, and entitled "Improvement in Illuminating Basements, Basement Extensions, Sidewalks, Roofs, &c.," whereby there was granted to her for the then unexpired term of seventeen years, from the 27th day of August, 1867, the full and exclusive right of making, constructing, using and vending to others to be used, the said invention and improvement, a description whereof is given in the schedule annexed to said reissued Letters Patent.

That said reissued Letters Patent were numbered 8,363, and plaintiff prays that the same may be deemed a part of this complain, and to the originals of which, or a duly authenticated copy thereof, now in possession of plaintiff and ready to be produced, she craves leave to refer.

That in pursuance of the right and liberty granted to her by said original Letters Patent, the plaintiff, under her then single or maiden name of E. A. Lake, by her attorney in fact, Thaddeus Hyatt, did, on or about the 7th day of July, 1871, issue and grant unto James L. Jackson and Peter H. Jackson composing then the firm of James L. Jackson & Brother, doing business in the city of New York, a certain license under said Letters Patent, to manufacture said patented articles at the city of New York, and to sell the same at any place in the United States except Boston, Charlestown, Cincinnati, the States of Illinois, Missouri and Kentucky, and such other places as plaintiff might thereafter reserve, which said license contains a covenant or agreement that any subsequent reissue of said patent should be without prejudice of said license.

133

That afterwards, and prior to the 21st day of February, 1879, said Peter H. Jackson duly assigned with the consent of the plaintiff, all his right, title and interest in and to said license to said James L. Jackson.

That afterwards, and on or about the 21st day of February, 1879, said James L. Jackson duly assigned with the consent of the plaintiff, all his right, title and interest in and to said license to Alexander T. De Puy.

That afterwards, and or about the 19th day of April, 1879, said Alexander T. DePuy duly assigned all his right, title and interest in and to said license to the defendant Jacob Jacobs.

That a copy of said license is here annexed, marked "Exhibit A," and plaintiff prays that the same may be taken as a part of this complaint.

VI.

That in or about the month of November, 1879, the defendant Jacob Jacobs entered into co-partnership with the defendant George W. Tice, under said firm name and style of Tice & Jacobs, and from thence hitherto said defendant Jacobs has held and used said license, and now holds and uses the same for the use, benefit and behoof of said firm of Tice & Jacobs, and not otherwise.

VII.

That at or about the time of the formation of said co-partnership of Tice and Jacobs, the defendants commenced to manufacture and sell said patented articles under and by virtue of said license, and have from thence hitherto continued to manufacture and sell the same in large and valuable quantities, and are now manufacturing and selling the same under and by virtue of said license, whereby they, the defendants, became, were and are bound, in accordance with the terms and conditions of said license,

134

to pay to this plaintiff the sum of sixty cents for each and every square foot (tile measurement) of illuminating gratings so made or sold by them under said license or Letters Patent, and to render unto plaintiff full, true and sworn accounts in writing of such manufacture and sale; but that nevertheless, notwithstanding the terms and conditions of said license, and notwithstanding such manufacture and sale of said patented articles by defendants, they, the defendants, have wholly failed, neglected and refused to render unto plaintiff such full, true and sworn accounts, or to pay to plaintiff the sums which by the terms of said license the defendants are bound to pay, and they, said defendants, still so neglect and refuse.

VIII.

And the plaintiff further avers that by reason of the premises, the defendants are now indebted to this plaintiff in a large amount, to wit, more than six thousand dollars, but that, inasmuch as the precise amount of such indebtedness can only be correctly determined and ascertained by the full and complete discovery by defendants touching the things the things herein alleged, for which prayer is herein made, plaintiff, is unable to state the amount of said indebtedness more exactly.

IX.

That by reason of the said failure, neglect and refusal of the defendants to render unto plaintiff a full, true and particular account of the amounts and sums now due by them to the plaintiff for the privileged granted to them under and by virtue of said license, plaintiff verily believes and, therefore, herein charges that it is the intention and design of said defendants to cheat and defraud this plaintiff of the amounts due by them to her as aforesaid.

135

That under the by virtue of the terms and conditions of said license, the right and privileges of the defendants and each of them thereunder, have, by reason of the failure, refusal and neglect of the defendants as hereinabove set forth, ceased and become wholly forfeited, and that the continuance of the manufacture and sale by defendants of said patented articles and the use of operation by them of said license is working unto plaintiff great and irreparable injury and damage.

XI.

And this plaintiff further alleges upon information and belief, that the defendants and each of them are pecuniarily wholly irresponsible and that unless said defendants be restrained from the continuance of said wrongful acts and from the further use of said license the plaintiff will be wholly remediless in the premises.

XII.

Wherefore, plaintiff prays judgment herein against the defendants.

1. That the defendants render unto this Court a full, true and particular account under oath of all illuminating roofs, roof pavements, illuminated basements, basement extensions or sidewalks, or materials for the same, or other articles patented under said Letters Patent and reissue, manufactured or sold by them or either of them under or by virtue of said license, from the date of the assignment thereof to said Jacobs, to the time of such accounting.

136

2. That upon such accounting the defendants pay over to the plaintiff such sum or sums as may by the Court be thereupon found due from said defendants to this plaintiff.

3. That said license be delivered up to be cancelled.

4. That the defendants and each of them, and their and each of their servants, agents, attorneys or assigns be forever enjoined and restrained from manufacturing or selling said illuminating roofs, roof pavements, illuminated basements, basement extensions, sidewalks or materials for the same, or other articles patented under said Letters Patent and reissue, or in any way or manner operating or manufacturing under or using said license.

5. For the costs of this action.

F. H. ANGIER, Plaintiff's Atty.

UNITED STATES OF AMERICA,
District of Columbia,
County of Washington,

ss.:

ELIZABETH A. L. HYATT, being duly sworn, says, she is the plaintiff hereinabove named; that she knows the contents of the foregoing complaint, and that the same is true to her own knowledge, except as to the matters therein stated to be alleged on information and belief, and to those matters she believe it to be true.

ELIZABETH A. L. HYATT.

Sworn to before me this 15th
day of December, 1880.

At the city of Washington, in the District of Columbia.
[L. S.] SAMUEL C. MILLS.
a Commissioner of Deeds for the State of New York, in District of Columbia.

137

STATE OF NNEW YORK,
Office of the Secretary of State,

ss.:

I hereby certify that SAMUEL C. MILLS, of Washington, County of Washington and District of Columbia, was, at the time of administering the oat or affirmation mentioned in his annexed certificate, a Commissioner for the State of New York, to take the proof and acknowledgment of deeds and other instruments to be used or recorded in this State, and to administer oaths and affirmations; and that such Commissioner was, at the time aforesaid, duly authorized to take the same; and that I have compared the signature of the said Commissioner to the certificate subjoined to the annexed instrument with the signature of such Commissioner deposited in this office, and have also compared the impression of the seal affixed to such Commissioner deposited in this office, and I verily believe the signature and impression of the seal to the said certificate to be genuine.

Witness by hand and the seal of office of the Secretary of State at the city of Albany this 21st day of December, in the year one thousand eight hundred and eighty.

[L. S.] ANSON T. WOOD,
Deputy Secretary of State.

Defendants offered in evidence the returns of Tice & Jacobs, so far as they state the facts contained in the following enumeration:

February 19, 1881, Baltimore, Md.

February 26, 1881, Baltimore, Md.

March 17, 1881, Newark, New Jersey.

138

April 20, 1881, Brooklyn.

May 16, 1881, Brooklyn.

May 18, 1881, Brooklyn.

May 20, 1881, Poughkeepsie.

June 18, 1881, Philadelphia.

June 20, 1881, Washington.

Admitted and marked Defendants' Exhibit No. 12.

Defendants' Exhibit No. 12.

CITY OF NEW YORK,
State of New York,

ss.:

I, JACOB JACOBS, being duly sworn, do depose and say, that the foregoing statement doth truly set forth the aggregate number of square feet of each of the several kinds of illuminated grating which I have sold from the first day of November, 1880, to the first day of February, 1881, and the names and places of business or residences of the several persons to whom the same were sold.

JACOB JACOBS.

Sworn to before me this 7th
day of February, 1881.

JOSIAH W. THOMPSON,
Notary Public, N. Y. Co.

ADVANCED ROYALTIES

Date.		Name.	Residence.	Sq. ft.
Jan. 17	1881	T. S. Ayres,	N.Y. City,	52'	6"
" "	"	Alex Brown, Jr.,	N.Y. City,	56'	11"
" "	"	Drummond & Jones,	N.Y. City,	45'	4"

	154'	9"
@30¢ $46.42

139

ADVANCED ROYALTIES

Jan. 25	1881	Messrs. Hutchings & Co.,	N.Y.C.	9'	@30¢	2	70
" 25	"	J. B. & J. M. Cornell,	"	39'	"30¢	11	70
Feb 20	"	J. K. Marshall	"	68'	"30¢	20	40

	$34.80

ADVANCED ROYALTIES

Feb. 11	1881	J. C. Calder,	N.Y. City	95'	7"
" 18	"	Edward Smith,	N.Y. City	131'	5"
" 19	"	James Bates,	Baltimore, Md.	58'	5"

	285'	5"
@30¢ $85.63

ADVANCED ROYALTIES

Date.		Name.	Residence.	Sq. ft.
Jan. 17	1881	L. T. Ayres,	N.Y. City	52'	6"
"	"	Alex. Brown, Jr.,	"	56'	11"
"	"	Drummond & Jones,	"	45'	4"

	154'	9"
@30¢ $46.42
Jan. 25,	"	Hutchings & Son,	"	9'
" 31,	"	J. B. & J. M. Cornell,	"	39'
Feb. 20,	"	H. R. Marshall,	"	68'

	116'
@30¢ $34.80
Feb. 11,	"	J. C. Calder,	"	95'	7"
" 18,	"	Edward Smith,	"	131'	5"
" 19,	"	James Bates,	Baltimore, Md.	58'	5"

	285'	5"
@30¢ $85.63

140

CITY OF NEW YORK,
State of New York,

ss.:

I, JACOB JACOBS, being duly sworn, do depose and say that the foregoing statement doth truly set forth the aggregate number of square feet of each of the several kinds of illuminating grating which I have sold from the first day of February, 1881, to the seventh day of April, 1881, and the names and places of business, ore residences of the several persons to whom the same were sold.

JACOB JACOBS.

Sworn to before me, this
14th day of April, 1881.

FRANKLIN LYNCH,
Notary Public.

Date.		To whom sold.	Residence.	Sq. ft.
Feb. 8,	1881	Alex. Brown, Jr.,	N.Y. City,	56'	11"
" 16,	"	J. C. Calder,	"	95'	7"
" 36,	"	James Bates,	Baltimore, Md.,	58'	5"

	210'	11"
Mch. 17,	"	Cleveland & Frank,	N'w'k, N.J.,	77'	4"
" 26,	"	J. G. & T. Dimond,	N.Y. City,	51'	7"
" 26,	"	Edward A. Smith,	"	131'	5"
" 31,	"	F. J. Greve,	"	70'	10"
" 31,	"	Joseph Marren,	"	32'	8"

	365'	10"
April 5,	"	Johnson Bros.,	N.Y. City,	54'	0"
" 5,	"	D. M. Smith,	"	34'	11"

	88'	11"

	665'	8"

141

CITY OF NEW YORK,
State of New York,

ss.:

I, JACOB JACOBS, being duly sworn, do depose and say that the foregoing statement doth truly set forth the aggregate number of square feet of each of the several kinds of illuminating grating, which I have sold from the 7th day of April, 1881, to the 7th day of July, 1881, and the names and places of business, or residences of the several persons to whom the same were sold.

JACOB JACOBS.

Sworn to before me this
11th day of July, 1881.

FRANKLIN LYNCH,
Notary Public.

Date.		Name.	Residence.	Sq. ft.	in.	Total
April 8,	1881	Johnson Bros.,	N.Y. City,	19	6
" 16,	"	J. M. Edgar.,	"	17	6
" 20,	"	Healy Bros.,	Brooklyn, N.Y.	108	3
" 27,	"	J. D. Miner,	N.Y. City	26	6
" 29,	"	J. F. Stratton & Co.,	"	54	10
" 29,	"	Reed & McWilliams,	"	170	3	396.10
May 11,	"	Holtze & Koenuecke,	"	12	0
" 12,	"	J. L. Jackson,	"	183	4
" 15,	"	J. L. Jackson,	"	46	11
" 16,	"	Healy Bros.,	Brooklyn, N.Y.	119	10
" 18,	"	J. T. Conlin,	N.Y. City	64	5
" 18,	"	Poulson & Eger,	Brooklyn, N.Y.	40	7
" 18,	"	J. Kowalinka,	N.Y. City	36	5
" 19,	"	J. L. Jackson,	"	122	2
" 20,	"	Dudley & Co.,	Po'k'psie, N.Y.	1	8
" 23,	"	J. B. & J. M. Cornell,	N.Y. City	200	9
" 25,	"	Mallon & Rourke,	"	97	5
" 31,	"	A. Tims,	"	28	9
" 31,	"	J. G. Gloss,	"	94	5
" 31,	"	J. G. & F. Dimond,	"	45	0	1093.8

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Brot. Forward					1490.6
June 2,	1881	James Carney,	N.Y. City,	18	8
" 6,	"	Mallon & Rourke,	"	130	0
" 6,	"	Johnson Bros.,	"	7	4
" 13,	"	J. Kowalinka,	"	24	5
" 15,	"	Mr. Orange,	"	41	10
" 17,	"	Post & McCord,	"	9	0
" 18,	"	Deveny & Hitzerorts,	Phila., Pa.	57	7
" 20,	"	Geo. White & Co.,	Wash., D.C.	22	7
" 22,	"	Happel A. Strohicker,	N.Y. City	41	8
" 23,	"	Drummond & Jones,	"	297	7
" 23,	"	J. L. Jackson,	"	23	5
" 23,	"	Francis Cook,	"	76	9
" 30,	"	J. T. Cochran,	"	34	5
" 30,	"	Bowes Bros.,	"	59	2	840.5

	2334.11

Being further cross-examined by plaintiff's counsel, the witness testified:

The suit was brought by Mrs. Hyatt against us in December, 1880, upon the allegation that I agree to pay sixty cents; she sued for that, and we stated that we were only obliged to pay 30 cents. All the other licensees were paying only 30 cents at that time. The Court found that we could not compete with the other licensees in case we were obliged to pay 60 cents and they were only obliged to pay 30 cents. We succeeded in that action, and it is now on appeal to the General Term.

Defendants then offered in evidence a duly authenticated certificate of the surrender by plaintiff of her patent of 1878. Admitted, and marked Defendant's Exhibit No. 13.

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Defendants' Exhibit No. 13.

DEPARTMENT OF THE INTERIOR—UNITED STATES PATENT OFFICE.

To all persons to whom these presents shall come, greeting:

This is to certify that Reissued Letters Patent No. 8,363, granted to Elizabeth Adelaide Lake Hyatt, August 6, 1878, for improvements in "Illuminated Basements, Sidewalks, Roofs, &c.," was received in this office, September 5, 1881, and surrendered September 27, 1881.

In testimony whereof I, E. M. Marble, Commissioner of Patents have caused the seal of the Patent Office to be affixed this 4th day of November in the year of our Lord one thousand eight hundred and eighty-two, and of the Independence of the United States the one hundred and seventh.

[L. S] E. M. MARBLE, Commissioner.

Defendants then called as a witness—Jacob Mark, who, being duly sworn, testified:

I am one of the defendants in this actions, and reside at No. 56 East Sixty-sixth street. I do business at No. 5 Worth street. I am mentioned as one of the licensees in this agreement and license. We had a suit pending against Mrs. Hyatt, that has been referred to. We discontinued that suit. Mr. and Mrs. Hyatt came to our place, and while they were in conversation with Mr. Ingalls, I came in, and then Mr. Hyatt went out. Mrs. Hyatt said to me, "Why can't you settle this thing up? I have the power in my hands; I can stop Tice & Jacobs, and make them pay 60 cents. Why don't you pay me as well as pay the lawyers? You might just as

144

well pay it to me." I said to Mrs. Hyatt that I had not much faith; the agreement of 1878 was not kept. She said, "I will take these things into my hands now; Mr. Hyatt has nothing to do." Mr. Hyatt came back again and took Mrs. Hyatt off. That is all the conversation I had with her until the time of the agreement at the New York Hotel. I didn't want to make any more agreements.

Q. What was said about restraining Tice & Jacobs to the city of New York?

A. That was at the New York Hotel. Mr. Ingalls, Mr. Elliot, Mr. Angier and Mrs. Hyatt were present. They were looking over the license at the same time. They gave orders to Mr. Elliot, or to Mr. Angier. I forget which. She said she wanted to restrict Tice & Jacobs to the city of New York, and they would also have to pay 60 cents. Suits against infringers were mentioned—that they were to be sued. I did not see Mr. Hyatt at the New York Hotel at all, at the time the papers were signed, November, 1880.

Being cross-examined, the witness testified:

I am in business now, and engaged in manufacturing patent lights. Mr. Cornell was present at the New York Hotel at the time the agreement was made there.

Mr. Hyatt was not present. The only persons present at the time of the conversation with Mrs. Hyatt, when the reference was made to restricting Tice & Jacobs, were the members of our firm, Mr. Angier, Mr. Elliot and Mrs. Hyatt. We went to Mr. Elliot's room in the afternoon for the purpose of executing the agreement of November 24th. I did not read over the papers; I was opposed to the settlement; but some one representing me did. I came there late.

Q. The conversation which you heard was pending the execution of these papers, the desultory conversation that took place at that time?

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A. Yes; I could not say positively whether Mr. Cornell was there at the time of this conversation; I think he went out; I think Mr. Cornell went away before. I was opposed to the settlement. Mr. Cornell executed the paper on the part of his firm; by his having signed the paper, his part of the transaction on that day was finished, and he left.

Defendants offered in evidence a letter of R. K. Elliot, dated January 9, 1882, received by defendants. Admitted, and marked Defendants' Exhibit No. 14.

Defendants' Exhibit No. 14.

WASHINGTON, D. C., January 9, 1882.

MESSRS. INGALLS & MARK, New York:

Gentlemen.—I invited your attention some weeks since to the non-payment of the royalties due by you to Mrs. Hyatt under the license you hold. That paper requires you to make sworn returns and pay royalties at least once in every three months; and also that the party violating it shall forfeit all right thereunder. I have, therefore, in the absence of any reply from you, notified our attorney in New York to treat the license and all other privileges held by you as to the patent as forfeited, and to proceed accordingly.

Yours respectfully,

R. K. ELLIOT, Attorney, &c.

Q. What did you do after receiving this letter from Mr. Elliot?

A. We manufactured the same as ever; we paid no attention to it.

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Defendants then recalled as a witness—JOSHUA K. INGALLS, who testified:

I remember the interview with Thaddeus Hyatt in August, 1881, in which the agreement of 1880 was mentioned. I called on Mr. Hyatt at their rooms in West Eleventh street, near University place, and spoke to him with regard to the matter of the license which was referred to before, whether he would give Mr. Mark and me separate licenses. I told him that there were so many infringers, that Tice & Jacobs were running such a sharp competition, there was really no margin for us to pay fees from, and, unless something was done, we must stop paying fees. I also said that they (Mrs. Hyatt and Mr. Hyatt) were repudiating that trust fund. Mr. Hyatt said that trust fund never should have been formed; it did not meet with his views at all; he was going to take the whole matter into his hands now, as to prosecuting infringers, and the licensees should be satisfied; and he showed me and read to me the proof of that circular which was put in evidence here, and said, "I am going immediately to Chicago to bring this suit before a Judge there who has respect for the right of inventors, and we will have a decision on this question very soon." I also spoke to him about his interference in the case which Mr. Foster brought, and he said that he was astonished that I should have advised the prosecution of such a suit; that it was not a basement extension, and that he would not have such a suit tried; that he believed the licensees were trying to burst his patent, and that he did not want the case brought before Judge Blatchford on any account. At that interview Mrs. Hyatt was not present.

Q. At any time after November, 1880, by which she showed acquiescence, or Mr. Hyatt acting, or words for her; what she said, and what she did, or not saying when she might have said?

A. I think I only had an interview with Mrs. Hyatt, and then the conversation was general

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between me and Mrs. and Mr. Hyatt. That was not long previous to the 24th of August, 1881; I cannot give the exact day. I do not remember but one interview with Mrs. Hyatt. That was not longer previous to the 24th of August, 1881, when both were present. She never notified me that Mr. Hyatt was not her agent or acting for her after 1880. I saw no change in their relations in that regard.

Being further cross-examined, he testified:

I was present at the interview that Mr. Mark referred to, in September, 1880, when the 60 cents was spoken of.

Q. Did you hear Mrs. Hyatt say that hereafter her husband should not act for her in the patent matters?

A. I did. I heard a great many times Mrs. Hyatt say that Mr. Hyatt would not interfere any more; I did not hear her say that he should not act for her hereafter.

Q. Mr. Mark has testified that she said, "I will take these things into my hands now. Mr. Hyatt has nothing to do." Did you hear her say that?

A. She said something of that kind.

Q. Have you heard her say since the time that Mr. Hyatt represented her in these patent matters?

A. I have not heard her say that he did, no. The licensees commenced suit against Tice & Jacobs, and when I spoke of a patent suit being commenced and discontinued, I suppose it was that suit against Tice & Jacobs that I referred to. The suit against Tice & Jacobs was brought in November, 1881. I verified the complaint.

Q. Did that complain contain this clause:

"And your orators further show unto your Honors, that thereafter, and prior to the 27th day of September, 1881, said patentee, finding that said specification was still defective and insufficient, surrendered said patent to the Commission of Patents,

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in accordance with the Statutes of the United States in such cases made and provided, and having amended the claim and specification in accordance with the decision of said Commissioner in the premises, and in all other things complied with the Statutes of the United States made and provided in such cases, new Letters Patent of the United States for the same invention were, on the 27th day of September, 1881, duly issued and delivered to said Elizabeth Adelaide Lake Hyatt, according to law, and entitled, "Illuminating Roof and Roof Pavement," whereby there was granted unto her, for the then unexpired term of seventeen years from the 27th day of August, 1867, the full and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention and improvement, a description whereof is given in the schedule annexed to the said reissued Letters Patent."

A. That is in it.

Q. (Paper shown witness.) Is that a copy of proposed license that you asked Mrs. Hyatt to give you?

A. This is in my handwriting.

Q. (Paper shown witness.) Is that the consent of the licensees to your receiving the license?

A. It is.

Plaintiff offered both papers in evidence. Admitted, and marked Plaintiff's Exhibits G and H.

Plaintiff's Exhibit G.

Whereas, Letters Patent No. 68,332, dated August 27th, 1867, reissued 6th August, 1878, were, upon the application of the inventor, Thaddeus Hyatt, issued to Elizabeth Adelaide Lake Hyatt for the invention of Improvement in Illuminated Basements and Basement Extensions, Sidewalks, Roofs, &c.

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And whereas, by an article of agreement bearing even date herewith, the party hereto of the first have agreed to give, and the party hereto have agreed to take a license under said patent to make illuminated basements and basement extensions, and to manufacture illuminating materials for the same.

Now, this agreement, made between the aforesaid Elizabeth Adelaide Lake Hyatt and Joshua K. Ingalls of the other, witnesseth as follows:

ARTICLE 1.—The said Joshua K. Ingalls hereby acknowledges the validity of the said Letters Patent to the said Elizabeth Adelaide Lake Hyatt.

ARTICLE 2.—The said Joshua K. Ingalls consents that the said E. A. Lake Hyatt may without prejudice to this agreement, hereafter reissue, when, and as often as she shall choose, the said patent of August 27th, 1867, as re-issued August 6th, 1878.

ARTICLE 3.—The said E. A. Lake Hyatt, on the terms and conditions herein set forth, hereby licenses the said Joshua K. Ingalls to manufacture and sell at any place within the States of New York, Pennsylvania, Delaware, Maryland and the District of Columbia, and to sell at any place in the United States, except at Boston, and within a radius of seventy miles around Boston, and except in the States of Illinois, Wisconsin and Kentucky, and except in the States forming the Pacific slope. This license not to be transferred without the written consent of the said E. A. Lake Hyatt and a majority of New York licensees.

ARTICLE 4.—The said Joshua K. Ingalls agrees to pay to the said E. A. Lake Hyatt the sum of seventy cents for each square foot of superficies in any and all illuminating gratings to be used for the purpose of making illuminating basements and basement extensions, except as such royalty may be modified in accordance with aforesaid articles of agreement between the parties hereto.

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ARTICLE 5.—The said Joshua K. Ingalls shall make payments at the end of each quarter for all illuminating work which he shall have made and sent away from his premises during such quarter to be used for the purpose of making illuminated basements and basement extensions.

They shall at the end of each quarter commencing with the 1st day of __________, or within ten days thereafter, render an account in writing, under oath, to the said E. A. Lake Hyatt, setting forth the aggregate number of square feet of illuminating work as aforesaid which he shall have sold and sent away from his said premises, the names of the persons to whom he sold, and the places to which such illuminating work has been sent to be so used as aforesaid, and the quantity sold to each of such persons, which quarterly account shall also include any and all illuminating work which may have been omitted for any previous returns.

ARTICLE 6.—The said Joshua K. Ingalls from and after the date of this license shall cause to be cast upon the iron work of each basement extension made and sold by him as aforesaid, the words and figures following to wit: "Hyatt's Patent Basement Extension Roof, Patented August 27, 1867."

ARTICLE 7.—If either party to these presents shall knowingly and intentionally violate this agreement, the party so offending shall forfeit all rights herein.

ARTICLE 8.—This agreement shall bind and apply to the legal representatives of E. A. Lake Hyatt, in case of her death, and shall bind and apply to the said Joshua K. Ingalls.

ARTICLE 9.—This agreement shall be valid and binding during the continuance of each and every term for which said Letters Patent of August 27th, 1867, shall be hereafter extended.

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Plaintiff's Exhibit H.

NEW YORK, July 30th, 1881.

Mrs. E. A. LAKE HYATT.

Dear Madam:

The subscribers, desirous of dissolving the partnership heretofore existing between us, hereby request you to accept the surrender of their license bearing date November 21st, 1878, and in lieu thereof to issue to each one a license of the same tenor and purport.

JOSHUA K. INGALLS,
JACOB MARK.

We hereby give our consent in the matter of the above request.

J. B. & J. M. CORNELL,
BARTLETT, ROBBINS & Co.

The license now held by Tice & Jacobs was originally held by James L. Jackson and Peter H. Jackson. I suppose one of them assigned it to Mr. DePuy. I had no conversation with Mr. Hyatt with reference to our consenting to his having that assigned by Jackson.

Q. Did you have any conversation with Mr. Hyatt, with reference to your consenting to his having that assigned from Jackson?

A. No, sir.

Q. I call you attention to the testimony you gave in a case in which you were yourself plaintiff, with the other licensees against Mrs. Hyatt and Mr. Hyatt, and ask you whether, in that case, you did not testify that you consented, and Mr. Cornell, to Mr. Hyatt's getting that license from Mr. Jackson?

A. For what purpose?

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Q. I ask if you consented to the assignment?

A. If the conversation with Mr. Cornell and Mr. Hyatt—

Q. Did you have any conversation about it with Mr. Hyatt?

A. I did.

Q. Did you, in that conversation, consent to having that assigned from Mr. Jackson?

A. I gave consent for it to be surrendered.

Q. Did you not, in the trial in which you were plaintiff, with others, against Mrs. Hyatt, testify as follows:

"Q. What was said in relation to the Jackson license?

A. We were talking, Mr. Cornell and myself, on the subject of the prosecution of infringers, said Mr. Hyatt explained that he might prosecute the Dale Tile Company, because they were getting their work done by James L. Jackson, who was one of the old licensees. e thought there might be a question as to whether he could succeed in a suit against them, and he then proposed to obtain this license from Mr. Jackson, so as to take away all chances or opportunity for any defense of that kind. It was upon that consideration that we consented that he should do so, and get the license from Mr. Jackson.

Q. Was this interview before it was assigned to Mr. De Puy?"

Q. Did to testify to that effect?

A. I did. Mr. Cornell also consented.

Defendants then offered in evidence decision of Judge Baxter in Circuit Court of the Northern District of Ohio, dated February 6th, 1883.

Objected to by plaintiff; first, as immaterial and irrelevant; second, as incompetent, being res inter alios acta; third, that the judgment roll should be produced, and not mea postea; that it

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was not pleaded as a defense, and that it was subsequent to the commencement of this action; objection sustained; defendant excepted.

THE DEFENDANTS THEN RESTED.

Plaintiff then called as a witness on her own behalf, ELIZABETH ADELAIDE LAKE HYATT, who being duly sworn, testified:

I am the plaintiff. I have been connected with this patent for several years. I returned from Europe with my husband in September, 1880. At that time these suits were pending; these difficulties with the licensees. I had the interview with Mr. Mark which he mentioned. I told him that Mr. Hyatt had been very ill in England, and had told me that I might finish up the business the best way I could, and he would not interfere with anything I did. I had several conversations with him in reference to a settlement. When I found I could not come to any satisfactory conclusion, I asked my brother-in-law, Mr. Elliot, a lawyer in Washington, if he would undertake to manage the affair for me, and he promised to do so; then I left it entirely in his hands. He made the settlement.

Q. During all this time, up to the signing of the papers, did you hear anything said, or did you know anything about any alleged promise to restrict the territory of Tice & Jacobs?

A. It was mentioned before the signing of those papers, before the 24th of November. I never knew of it at all until that time.

Q. Do you remember about how much you remitted to these licensees for six months royalties at that time?

Objected to; objection overruled; defendants excepted.

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A. I do not remember.

Q. Did Mr. Ingalls ever protest to you as he calls it, in regard to what was done by you as patentee?

A. I do not recollect Mr. Ingalls protesting to me personally. I know Mr. Cornell; I have seen Mr. Bartlett once. They are the other licensees under the agreement.

Being cross-examined, the witness testified:

I was aware of the time when the suits were brought. The authority to bring the suits was not given by Mr. Hyatt. He may have given some advice on the matter. He did not direct the lawyer to bring the suits. I have spoken with him on the subject of course, but this suit has been brought the same as all other business, through Mr. Elliot. I have not given Mr. Hyatt the royalties I have received from any of these licensees. So far as the benefit goes, he certainly has had some benefit, but has not had the royalties directly. They have been paid by [to?] me and kept by me. I have not authorized Mr. Hyatt to act for me in any particular since November, 1880, with regard to these affairs.

Q. Do I understand then, that you are the one who surrendered the patent of 1878?

A. That business I never had anything to do with. It was done by Mr. Hyatt; I afterwards consented to its having been done, because I thought Mr. Hyatt knew more on that subject than I did. It was Mr. Hyatt who surrendered the patent of 1878, and got the reissue of 1881. Afterwards I ratified that act. I knew nothing whatever before signing the agreement of 1880, about Tice & Jacobs being restricted to the city of New York. It was never mentioned until after that paper was signed. I did, in November, 1880, agree to restrain Tice & Jacobs to the city of New York. We have not

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taken any steps to restrain Tice & Jacobs to the city of New York, since then, except by sending them the three notices that have appeared in this case.

Q. On the contrary, have you not, or has not your attorney in fact, Mr. Elliot, been receiving from them returns on paper, and fees for work done outside the city of New York?

A. Yes.

Q. In point of fact, as late as the past month you did receive fees for work done by them outside the city of New York?

A. I received fees, but I do not know where any of the work was done, because the returns are not made except since in three months, and the payments are made every month. I have received no fees in the last two years from Mr. William J. Fryer. I do not know whether Mr. Elliot has made any effort to restrain him to the city of New York or not; I have not personally. From and after November, 1880, Mr. R. K. Elliot became my attorney in fact; he was also one of the trustees in this assignment.

Q. Didn't you, within about one year after that assignment was drawn, direct Mr. Elliot to collect all the royalties that were paid here in New York, and to retain the money himself, for you?

A. It was thought advisable for Mr. Elliot to have the moneys. I did not direct him to retain the moneys; I permitted him to do so, and knew he was going to do so. The moneys that he then retained were given to me; all the moneys were not given to me; there were certain things deducted always.

Q. Did you not receive some protest, either verbal or in writing, or did not Mr. Elliot, that the withdrawal of these funds from New York would of itself prevent the successful prosecution of suits here against infringers?

A. They were not withdrawn from New York;

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they were only paid to Mr. Elliot, and immediately sent back and put in my bank here; they were given to me personally.

Q. Were you not informed of the fact that that would leave these suits in New York practically helpless, for want of funds?

A. The money was not withdrawn at the time these suits were pending, I think; do you mean the suits commenced before the reissue of the patent?

Q. I mean the suits begun by Mr. Angier on your behalf against infringers. From and after the time when you directed Mr. Elliot to collect the moneys and to pay them over to you, was not that act of yours protested against by the licensees as leaving them no means wherewith to prosecute infringers under that trust deed?

A. I do not really recollect any such thing. I did not myself make any other provision for the prosecution of infringers here in New York; the trust deed I thought covered all that was necessary.

Q. Do you know whether your attorney in fact, Mr. Elliot, took any steps for or towards the prosecution of infringers after that trust deed was drawn?

A. Of course, these very suits that Mr. Angier commenced.

By the Court:

Q. The question is, do you know whether Mr. Elliot took any action himself towards the prosecution of infringers?

A. I think he did; he and Mr. Angier commenced suits.

Q. Have you knowledge of any other action that was taken for the restraint of infringers, than the several suits that were brought by Mr. Angier in New York, and the single suit that was brought by Mr. Foster? Have you knowledge of any other steps?

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A. I know Mr. Elliot has intended to commence suits, and has written to Mr. Ingalls with reference to it.

Q. I ask you if you know of any other steps taken except these seven suits brought in New York—six by Mr. Angier and one by Mr. Foster?

A. I think Mr. Scott has some suits in his hands now. I do not know whether he did anything other than that. These suits were against infringers, and were commenced before the commencement of this suit.

Q. Mr. Scott has commenced suit against infringers?

A. That is my belief.

Q. Is it your knowledge?

A. As much as I know anything.

Q. You will swear positively?

A. Yes.

Q. How many suits has he commenced?

A. I could not tell you.

Q. Against whom?

A. That I could not tell you.

Q. What is their condition at present?

A. I really don't know anything about the business; I only know he has commenced suits.

Q. In what courts are they pending?

A. I don't know anything about it; I only know Mr. Scott has commenced suit against infringers.

Q. How do you know that?

A. Because I have heard Mr. Scott say so, and Mr. Elliot told me in Washington he did so.

Q. Then it is mere heresay?

A. Everything is heresay.

Q. Were you aware that by the surrender of the patent of 1878 these suits that were brought against infringers prior to your surrender would fall to the ground?

A. I don't know anything about it; I had no conversation with Mr. Hyatt about that; I have heard of it since, but I did not know of it at that time.

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Q. Were you aware what sort of a patent Mr. Hyatt had applied to have re-issued in 1881; did you know anything about what the specifications were?

A. No, I did not understand anything about that.

Q. Will you say positively that Mr. Ingalls and Mark did not protest on the payment of their royalties against your conduct in regard to infringers, as well as in regard to Tice & Jacobs, and other parties?

A. Since 1880? If I dared to say anything positive I would say more positively I do not recollect positively anything of the kind until they absolutely refused to pay. I do not remember. I do not think they did.

Q. Did you get a letter such as this, dated November 15, 1881 (shown witness)?

A. This is the time they refused to pay the royalties. I got that letter, but I never got anything before that. They paid on, and everything seemed to be going very pleasantly, I thought.

Q. When you directed Mr. Elliot, or knew that he was about himself to direct the licensees in New York to pay their royalties to himself, which royalties he was about to deposit to your personal credit in the New York bank, did you have the consent of the licensees to the adoption of that course?

A. No.

Q. Did you have the consent of Mr. Angier, the co-trustee of Mr. Elliot, to that course?

A. Yes, I believe Mr. Angier did consent. It was all arranged between Mr. Elliot and Angier. I had nothing to do with it. I understood that Mr. Elliot got Mr. Angier's consent; he told me so.

Q. Your knowledge of the fact is not derived from Mr. Angier, is it?

A. I have not seen Mr. Angier except in court for a long time.

Q. Nothing he has said or written has given you

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that knowledge, that he consented to the withdrawal of that money and depositing it to your credit in New York?

A. No, I have never seen Mr. Angier. Whatever knowledge I have upon the point was got from Mr. Elliot.

Q. Are you prepared to say that in point of fact Mr. Elliot had not withdrawn that fund from New York, or instructed the licensees to pay him in Washington, before consulting with Mr. Angier at all about it?

A. I do not know anything about it.

Q. When this trust agreement was drawn, the understanding was, was it not, that Mr. Elliot should be the attorney in fact for you, and Mr. Angier the attorney in fact for the licensees?

A. It was proposed, I think, first, that the trust should be in Mr. Angier's name only, and then I asked Mr. Elliot if he would take part in the trust on my side, as Mr. Angier at that time was the lawyer of the opposition, and I thought I ought to have some one on my side. At that time, Mr. Angier was acting for both parties, but I considered, from the position he stood in, it was safer to have some one on my side. These licensees, at the time the trust was executed, was scolding about the fact that there were so many infringers here, and a good deal was said about it at that time; a great deal was said about Tice & Jacobs, too.

Q. Were you told, and the charge was made, was it not, to you, that Tice & Jacobs were underselling?

A. Up to the time that Mr. Elliot undertook my business, I had seen Ingalls & Mark and Cornell, and of course, they all complained of Tice & Jacobs, and there was no likelihood of our coming to any settlement. I asked Mr. Eliot to undertake the business; and, after that, the arrangements were made with him. I did not see any of the parties; the last time I saw them before the

160

agreements, the licensees were scolding, up to the time of the agreement of November, 1880, about Tice & Jacobs; at that time, Ingalls & Mark had a suit against me. I knew that suit had gone to trial, and had been decided against me, in a certain way; they were about to take a reference to ascertain damages against me. I was not afraid the fund might all go for damages; I was not here when the suit was on, but our lawyer, Mr. Yeaman, told me that it was foolish to have a compromise; I was anxious to have quietness; I thought that would last a long time; then, it was, that I undertook whatever obligations were imposed by this trust deed.

Q. Then, it was, that you sent these three notices to Tice & Jacobs—or after that?

A. No, that never was in the trust deed at all; that was an affair afterwards; that was simply done to oblige Ingalls and Angier; and, after everybody else had left the room, Mr. Elliot told me I might sign the paper; he didn't think it would harm us, anyway, and Mr. Angier said it should not be served.

Q. Didn't they ask you, as the consideration of their withdrawing their reference for damages, to serve this notice, or to have it served, upon Tice & Jacobs?

A. No, sir; never, until the compromise was effected; Mr. Cornell had signed, and, I think, Mr. Mark had gone, and then Mr. Ingalls proposed this paper; and, as Mr. Elliot, my lawyer, said, "I don't think it will harm you; you can sign it, but Angier, don't deliver it until I can think over this matter." The paper I then signed, they took with them, and looked it over and altered it to suit themselves, and brought it back to 228 West Eleventh street, and they said they thought there could be a better paper, and Mr. Hyatt said: "As Mr. Elliot has given his consent to signing the first, I don't think he will object to signing the second;

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Mr. Angier has promised faithfully that the paper should be kept to us, any way, and not served until Mr. Elliot gave his consent;" but the next day or two, Mr. Angier said his clients were uproarious to have the paper served, and he had handed it to Ingalls, but didn't think that Ingalls would serve it until the next day; at the time, I felt very bad, but Mr. Elliot wrote that he didn't think it would be any harm.

Q. Why did you feel badly?

A. Because I didn't want them to break their promise; I didn't want to do anything.

Q. Why didn't you want the paper served?

A. Because I didn't understand anything about the business, and I was afraid I might be hurting our cause, and I wanted to do everything that was best for all parties.

Q. Why did you sign the other papers, one three months afterwards, and one seven months afterwards, to the same effect?

A. Because my lawyer told me to.

Q. Had you then ceased to believe that the signing of these papers would hurt your cause?

A. I left it entirely to Elliot; I did what he told me in the matter.

Q. Why didn't you bring suit against Tice & Jacobs to restrain them to the city of New York?

A. That was in the suit already commenced; not to restrain them to the city of New York, but to stop them altogether.

Q. On the ground that they did not pay sixty cent?

A. No, sir; other grounds as well.

Q. Why didn't you bring suit to restrain Tice & Jacobs to the city of New York, as you agreed to in 1880?

A. Because this suit already pending would have settled the whole matter, and it was not worth while to bring it just then. We had Angier's letters.

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Q. If you have a letter from Angier in which he states that you need not bring the suit, I should like to have it produced. You do not know what that suit against Tice & Jacobs that you brought was brought for?

A. Yes, it was brought to try to break their license, not simply because they had not paid sixty cents; that is my signature (paper handed witness); that was served upon all the licensees, Mr. Ingalls among the others. Under the agreement of 1878 all the licensees protested when they paid in their fees, but that was all wiped out by the compromise of 1880.

Q. Have you any suits now pending against infringers except those you spoke of as having been brought by Mr. Scott?

A. Yes, several parties—Boston, out west, and New York State.

Q. What suits are pending in Boston against infringers?

A. I do not know anything about it, only I know there are suits, because Mr. Moore, our agent in Boston, has done the business. I have seen his letter. It is simply what he has written and told me, and I also knew the lawyer.

Q. Where else are suits pending besides in Boston?

A. In Chicago, I think; I believe they are commenced; I cannot say I know anything.

Being further examined by plaintiff's counsel, witness testified:

Q. Where did you keep your bank account; in what city? In the city of New York?

A. Yes.

Q. Any other place?

A. No.

Q. Do you know of any account to restrain or restrict Mr. Fryer in territory?

A. No, I never heard of it.

Q. It has never been suggested to you?

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A. It has never been suggested.

Q. You knew of no agreement with regard to Tice & Jacobs, except as a mere favor to the licensees?

A. Yes.

Q. That was all?

A. That was all.

Q. You do not know of any agreement to that effect?

A. There was not any agreement to that effect; it was never mentioned until after that agreement was made.

Q. At that time you were very unfriendly with Tice & Jacobs?

A. Yes; they were not paying anything, and had not for a year, I think; I commenced a suit against Tice & Jacobs to forfeit their license the December succeeding the November agreement. Mr. Angier was my attorney in that case.

Q. As to this reissue of 1881, did you leave that matter to Mr. Elliot as well as other matters connected with it?

A. I knew nothing about it; Mr. Elliot and Mr. Hyatt attended to that business.

Q. Did you ever see the returns of Tice & Jacobs?

A. I have seen some to Mr. Elliot since the commencement of this action, but never saw any up to that time; I had nothing to do with them except to receive the money handed over to me; I do not think I saw the checks themselves.

Q. All you know about this matter with regard to the collection of royalties, the moneys were paid to you; they were deposited in your bank; that is all you had to do with it?

Objected to as leading; objection overruled; defendants excepted.

A. Yes, sir.

Q. As far as you knew, did any of these licensees,

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subsequent to the agreement of November, 1880, ever protest to you or make any objection?

A. The only conversations I had were prior to this agreement of November, 1880; I have not seen them since, until shortly before the commencement of this suit; I had no conversation with them at all.

Being further cross-examined, she testified:

I knew that Tice & Jacobs were making returns; I knew also that those returns were sent to Elliot after a certain time, and before that they were all sent to Mr. Angier. After September, 1881, I think they were sent to Mr. Elliot, but I should not like to say the exact date; I think they were made to Angier & Elliot much later than that; I knew of the giving of this license by my husband to Tice & Jacobs in April, 1879, after it was done, but not before that. After it was done it was no use consenting to it. After that I did not object to the license; I do not want to talk about that, if you please; I was present when it was delivered to Mr. Jacobs.

Plaintiff then offered in evidence the rest of the circular published by Thaddeus Hyatt, August 1, 1881, a part of which had been previously admitted as Defendants' Exhibit No. 5. Admitted and marked Plaintiff's Exhibit I.

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Plaintiff's Exhibit I.

REPLY OF

THADDEUS HYATT

TO A

Circular of Certain Infringers

DENYING THE VALIDITY OF

HYATT'S BASEMENT EXTENSION PATENT,

ALSO,

Notification to the Public,

AND

WARNING TO INFRINGERS.

R. K. ELLIOT, ESQ.

Attorney in fact for the Patentee.

CARD.

To Iron Manufacturers, Owners, Architects, and Builders.

NOTICE

is hereby given that the undersigned has been appointed attorney in fact of E. A. L. Hyatt, in respect of a patent granted to her by the U. S. Government on the 27th August, 1867, re-issued August 6th, 1878, and with all matters and things pertaining to the same; this, therefore, is to

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CAUTION

all persons interested in the use of Patent Lights, against infringing said patent, and to notify

Architects and owners of Real Estate

that the aforesaid patent (known among iron men as Hyatt's Basement Extension Patent) is still operative and in full force and effect, and will continue to be until the 27th day of August, 1884. The undersigned also takes this occasion to inform and warn

Infringers of the Patent

everywhere that effective measures have now been taken to maintain the patent and the right of the patentee thereunder, as well as to protect the right and interests of all duly appointed

Licensees Under the Patent,

and the public are hereby cautioned against purchasing or procuring the said patented articles and constructions from any other parties.

R. K. ELLIOT,
Attorney in fact for the Patentee,
406 5th St., N. W., Washington, D. C.

PATENT LIGHTS.

HYATT'S BASEMENT EXTENSION PATENT.

Whereas, certain interested parties have seen fit to publish and circulate as

"Important Facts,"

(A copy of which will be found at the end),

a series of unwarrantable assertions and misrepresentations concerning the aforesaid patent, and

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concerning the inventor of the things claimed therein, the undersigned begs leave to submit for the consideration of the candid and discerning, the following

True Statement

of the case, premising that the validity of the patent of 1867, (denied by the parties aforesaid), does not depend upon the question as to whether Thaddeus Hyatt was, or was not, the original and first inventor of the illuminating gratings, claimed in the old and expired patent of 1845; nor upon the number of years, whether six or "thirty-six," during which Hyatt received royalties under that patent; the 1867, and not the 1845 patent, being the one now under consideration, and this one being, not for the grating, but for improvements upon the grating, such as any person, other than Hyatt, had the right to make and patent, had not Hyatt been the first to do it, and for the application of such improved gratings to new and useful purposes.

As a matter of fact, however, Hyatt is the inventor, both of the original and the improved gratings, his early and first invention having been made in the year 1834, eleven years prior to the date of his 1845 patent, and four years before any recorded evidences exist in England, of any similar constructions; all of which has been made, heretofore, the subject of legal proof, by which Hyatt's claims to priority of invention stand good as against the world.

As a matter of fact, also, in place of receiving royalties under his 1845 patent during a period of thirty-six years, as the circular falsely avers, Hyatt received them during a period of fifteen years only; the sum total of royalties received prior of 1859, when the first term of his patent expired, not amounting to one-fifth of what the infringers themselves made out of his invention during that period. Neither has he ever received as much as the

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infringer have been always getting out of his invention; neither has he ever received, all told, as much as the municipal Government of the City of New York derives from his invention in a single year.

As a matter of fact, it may also be fairly said that during the first fourteen years of the patent, Hyatt received nothing whatever, as inventor, the whole of his income from all sources being equal in amount, upon work actually executed by him, to no more than fair manufacturers' profits, which any man, in any other branch of industry, ought to have earned during the same period of time, upon an equal amount of any work, proof of which (as an argument for extending the patent), was laid before the Commissioner at the time when the first application for extension was made, as may be seen by reference to the evidence on file at the Patent Office, in Washington.

But as the entire history of Hyatt's early invention, and his struggles to introduce it, is a matter of record in the Patent Office; as the validity of the patent of 1845 was sustained by three New York Referees, (of whom Colonel R. M. Hoe, of lightning-press fame, was one), and as said Referees made an award of ten thousand dollars, in favor of Hyatt, and sustained the patent; as Hyatt's opposers appeared again in full strength before the Commissioner of Patents, in 1859, armed with the same wonder array of "facts," which had been previously submitted to the Referees, but with no better result; and as the claims of Hyatt were equally well sustained before Congress in face of equally violent opposition, when the second extension of the patent was ordered by that body, seven years later, it seems scarcely necessary, at the present time, to notice a charge so utterly absurd, and so fully refuted.

The Invention of 1875—New material.

The combination of iron and glass, invented by

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Hyatt, and patented by him in the year 1845, was as really a new material, as Goodyear's "vulcanized rubber," and for a similar reason, to wit: Because of its applicability to useful purposes, other than the one for which it was originally patented. Had Goodyear's invention been the result of attempts to make an improved shoe, and had he patented it as such, his right to vulcanized rubber (providing his patent were properly drawn) would nevertheless have held for any article other than a show made of vulcanized rubber; to the new article itself as well as the rubber, if invented by him; and to the vulcanized rubber constituting the article, if invented by another. The same is true of Hyatt's inventions, but in a sense even stronger. had Goodyear been the original inventor of rubber itself (supposing such a thing possible), and patented it; and had he then improved this material of his own invention by vulcanizing it; and then had he gone a step still further and invented all the new articles made from the improved rubber, his relation to the rubber industry and rubber inventions of the country and the world, would have been precisely parallel to that of Hyatt, with reference to the patent light industry; no improvement of material importance in the patent light business existing to-day in the country of the world, which is not due to Hyatt; his improved gratings being at the present moment the standard lights, as well in London, and all over England, and in Paris, a throughout the United States.

But this is not the first time in the history of invention, that claims of a meritorious inventor have been howled down by voracious and unprincipled rivals, eager to avail themselves of his labors, sacrifices and self denials; in fact, it is "the old, old story."

The illuminating grating patented by Hyatt in 1845, (the substantive invention), was defective as originally made, in mechanical construction, being

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in effect a sandwich of iron plates and glass; the glasses being held in place and made secure, by "cap" or covering plates of metal, as the glasses of "port-lights" are held to their frames, and "deck lights" are held by rims of brass screwed to the deck; a mode adopted by Hyatt for the purpose of being able to make up and deliver his work without loss of time; glasses bedded on red lead or putty requiring weeks to become fixed, no better method at that time for executing the work being known.

The glass in Rockwell's metal rim, as the cover was at first constructed, rested upon a bed of putty, its own weight being relied upon to keep it in place; but afterward it was made more secure by means of a ring of metal bolted to the rim, the glass entering the aperture like a wedge, and finding a bearing upon its sloping sides. Such was the state of the art in that day, as to fixing thick glass, whether in "diving bells," "port lights," or vessels' decks; and it soon became manifest to Hyatt that unless he could devise some cheaper and more expeditious way of fixing the glasses, illuminating roofs and roof pavements could never exist as practical and popular building constructions.

The period of time during which Hyatt was experimenting with reference to this and other points in order to perfect his invention, extended from the year 1844, to the early part of 1855, during which time, or at least until the middle of 1854, he was entirely alone in the field. This period may be divided unto two eras; the first when he was perfecting the illuminating grating; and the second when he was perfecting the method of uniting them, in a way to obtain water-tight joints; and no clear-headed man can take in these facts, and believe for a moment, that the expiration in 1873 of the old 1845 vault cover patent (twice extended) could by any possibility destroy Hyatt's right to inventions made by him, after he had taken out

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his first patent in 1845. (How it happened that the invention of improvements made by him prior to 1856 and after 1845 were not covered by patent until 1867, will be hereinafter explained).

Perfecting the grating, 1846-1852.

The improvements made in the grating as described and claimed in the 1867 patent, consist: first, in putting the whole strength of the metal into a single plate, in place of dividing it as formerly among two or more plates; and second, bonding the glasses at their sides, to the sides of the apertures of the grating, by the use of an instantaneously setting and hardening water-proof cement, put between the sides of the glasses, and the sides of the apertures to simultaneously effect the fixing of the glasses, and make water-tight the annular space between glass and metal.

Applying the improved gratings to roof construction, 1850-1855.

All the property owners, architects, iron men and builders in New York who witnessed Hyatt's first attempts to construct illuminating sidewalks, regarded the effort as an "experiment," and so called it, the majority of them predicting failure from the expansion and contraction of the plates of iron and the impossibility of making water-tight so many joints; no better method of making water-tight joints being known in those days, than by using either red lead or iron borings, but in actual use it was found that while "steam packing," for steam fittings, might answer for work of that nature, it was not at all applicable to iron foot-ways subject to the tramp of a multitude of people, and heavy bales and boxes of merchandise; thumped down constantly upon them.

The iron borings employed to make the plates of the Herald sidewalk tight, in the year 1851, finally swelled and puffed out of all the seams of

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the work, like so many strings of oakum; the proprietor feeling in no very amiable mood, as he walked about the press-room under the light, with an umbrella over his head.

"Your invention is a good one, Mr. Hyatt, and will be very valuable whenever you can make your work so it won't leak!" said the old merchants, architects, property owners and bank presidents, of the period between 1847 and 1855, "and we'll adopt it as soon as you can guarantee it watertight."

If the writer were to print half that was said in those days against the possibility of his succeeding, it would fill a volume. Said Mr. A. T. Stewart to him in 1848, when Hyatt was teasing him not to build vaults at the corner of Chambers street and Broadway, but give him a chance to show his basement extension, "Now, Mr. Hyatt, why do you want to make something better than vault covers? You've got a good thing, and it's good enough; stick to it! but you are like all inventors, you want to do something more."

This eminent merchant and man of sterling common sense was generous enough, a few years afterwards, to admit his mistake, and during the lifetime of Mr. Stewart, Hyatt had no truer friend to his invention. Mr. S. manifested his regard for Hyatt, and his interest in his invention by giving his testimony under oath to be laid before the Commissioner of Patent in 1859, on the first application for extension of patent; on which occasion he testified to the value of the invention, in these remarkable works, viz: "When I pay Mr. Hyatt a thousand dollars for his improvement for one of my stores of twenty-five feet front, I consider that I get the value back in two years."

Horace Greeley, in his letter to Senator Morgan in the year 1866, wrote to that gentleman, as follows: "Where Mr. Hyatt makes one dollar on his invention, the owner of the property, who adopts it, makes a hundred."

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The Municipality of the City of New York now understand the value of this invention so well, that they demand seventy-five cents per superficial square foot for the use of basement extension space under the sidewalks, instead of the old rate of fifteen cents before Hyatt had turned it to profitable account; and yet Hyatt, had to go begging about the City of New York for seven long years before he could get a chance to prove his words. What has Hyatt ever got for the one hundred millions in value which his invention has added to the real estate of the country?

First Attempts to Cure Leakage.

So constant was the leakage at first around the edges of the illuminating plates in all the sidewalk work put down, that Hyatt resorted to water ways underneath the edges of the tiles, gutters to carry off the soakage being made in the top face of the cross bars, and in the rabbets of the main frame all around; and his mode continued to be employed until Hyatt devised the perfect one now in use, and as described and claimed in the 1867 patent, viz.: Horizontal mastic bedding, combined with bolting and vertical cement seam-filling, and this is the method in use to-day all over the country, and which has been constantly in use by all the infringers since the day that Hyatt perfected his invention.

During the whole of this time, during all the struggles of those weary years of experiment; where were "the iron men?" Instructing Hyatt how to do it? Not a bit of it! "Iron borings" and "red lead" was the extent of their knowledge; beyond this they had no suggestions to make.

The thing they did know, and by heart, too, and very positively, was that "Hyatt was crazy and trying to do impossibilities."

Not until 1754 did any of "the iron men" make their appearance in the capacity of pretended

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inventors of improvements upon Hyatt's lights; this being after he had overcome nearly all the practical difficulties by ten years of steady experiment, and not in any force did they appear until 1856-7, when the perfected water-tight joints had made certain the triumph of the invention.

Before the year 1856, Hyatt, at his own cost, had taken up and relaid all or nearly all of the patent light work put down by him previous to the gall of 1854 and spring of 1885, grudging no expense and sparing no labor or pains to perfect his work, and make it satisfactory to the public; and the public, as a rule (exceptions and honorable ones there were) rewarded him by immediately encouraging the pirates of his invention.*

It is no trick to-day to make illuminating sidewalks and roofs that will not leak; but the country is not indebted to the "iron men" for it.

The distinctive patentable features of the invention claimed in the 1867 patent as improvements upon the original of 1845, and which the authors of the circular seem unable to comprehend, or unwilling to acknowledge, are as following, to wit:

First.—The single plate metal grating.

Second.—Single plate metal gratings, in which the apertures are blocked with glasses fixed in position by uniting the sides of the glasses to the sides of the apertures, through the agency of a water-proof bond.

Third.—Combining the aforesaid improved

* Time was when this troubled the inventor sorely, but he has learned by the sad and bitter experience of a long life, to be charitable to his kind; for where the stimulus of gold whets human greed, the average man differs but little from his fellow; and his fellow but little from the brute, that little, however, being in favor of the brute, in the ratio of the distance that separates him from man; for the closer the kinship between man and beast, the more disreputable the beast; the monkey lacks but opportunity to be a thief, and the organs of speech to be a liar.

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illuminating gratings with each other, and with suitable supports, by means of horizontal mastic bedding, bolting, and water-proof vertical seam cement filling.

The above are the cardinal features set forth and claimed in the 1867 patent, with many subordinate and minor ones, not necessary to be enumerated here. If the authors of the circular are unable to find them in the patent, they are more fortunate in their work, for they never omit them there; and it may be safely asserted that there is not a piece of patent light work in the country to-day which does not embrace the above features, whether put down by licensees or infringers.

Disingenuousness of the Circular.

The craftiness and duplicity of the circular is chiefly conspicuous by the inferences it designs the public to make from the assertions. By the phraseology employed, the authors would have the public believe that Hyatt either made the invention set forth in the 1867 patent at the time the patent bears date, in which case the many years' previous public use of it vitiates the patent, or that the public use of it for so many years before being patented and claimed by Hyatt, proves that Hyatt is seeking to levy blackmail on "iron men" for daring to use their own inventions!

The Facts.

During the experimental periods herein above referred to, Hyatt, as his improvements took shape, protected himself from time to time by various applications for patents, and finally in the year 1856, lodged his completed specification, model and drawings in the patent office, at the same time paying the fee required by law.

The atmosphere of the Patent Office in those days was not a healthy one for inventors; the examiners were gentlemen of Westminster catechism

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proclivities, who confounded invention with creation, and as Hyatt presented no evidence of having "created" his "all things out of nothing," but had merely produced new results out of old materials by new combinations, his applications, one after another, were shelved, and his inventions "rejected for want of novelty."*

But the world has moved a great deal since 1856, and the American Patent Office along with it. The claims of Hyatt to his invention were allowed finally on the 27th day of August, 1867, eleven years after the application. But the patent when issued bore date from the day of its allowance, as all patents do; otherwise it would have had but six in place of seventeen years to run, a state of the case, no doubt, which would have been particularly pleasant to the circular gentlemen aforesaid, but very "rough" on the inventor.

Whether Hyatt could have had his patent allowed earlier by a more persistent banging at the Patent Office doors, need not be considered here, the courts having decided that an inventor has discharged his duty when he has complied with all the requirements of the law, and that after this the failure of the office to perform its obligations does not deprive the inventor of his rights.

The effect of the "public use" of Hyatt's invention before he made his final application for patent in 1856, has been already settled by the courts in similar cases; notable in the case of Nicholson, inventor of the wood pavement, who experimented during nine years in the public streets before making application for his patent. In this celebrated

* In this slaughter-house of inventor's hopes, hearts and dreams, slept Hyatt's inventions, then for years, along with many others equally as meritorious, the most of which undoubtedly perished. So bitter even at this hour is the memory of those days to the writer than he desires to say here, and to put it upon record, that the injustice, the inhumanity, and the cruelty of the American Patent Office to inventors in years past, forms, in his opinion, one of the most damning pages in American history.

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case the court held that where, from the nature of the invention, the perfecting of it could be made in public only, such use is not the "public use" contemplated in the law of patents. Also that an inventor is entitled to all the time necessary to perfect his invention, and that he is the proper judge when his invention is sufficiently complete to warrant his application for patent. The same doctrine was also held by the court in the case of the District Fire Alarm Telegraph. All of which applies with special force to Hyatt, whose invention required the consent of property owners, and the favorable consideration or architects to begin on, and the public use of it in the streets to test it.

The entire history of the invention, the state of the art where Hyatt took it up, the difficulties to be overcome, the prejudices and unbelief he encountered, and the successive stages by which the patient inventor succeeded in realizing his ideals, cannot be narrated here; they will all appear in due time when it becomes necessary to present the merits of the invention for the consideration of a jury, and the decision of a court—until then, this chapter must remain incomplete.

The Fitzgerald and French suits referred to in the circular require no notice here. If they had any legal (they have no moral) bearing on the case, the court will be sure to find it out.

How many of the "120 patents for improvement in vault covers" were issued prior to Hyatt's original of 1845, has been already stated hereinabove. The circular, misleading again by implication, would make it appear that there were many such, which is utterly false; there was not one. The "Rockwell Light," the only one before Hyatt, was not a grating; it was simply a single deck light, set in a circular rim of iron; about as much like a grating as a lady's finger ring resembles a gridiron.

The circular people also forgot to mention that

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fully one-half or more of the 120 patents were issued to Thaddeus and Theodore Hyatt. They might also have added with truth that most of the others were obtained for no other purpose than to be used as a cloak under which to steal Hyatt's invention.

FINALLY.

The gentlemen of the circular (all of whom are infringers on the patent) express deep concern at the tardiness of "the attorneys of E. A. L Hyatt" in bringing infringers to justice.

This anxiety on their part is praiseworthy, natural, and deserving of respectful sympathy. The undersigned, deeply aware of his own shortcomings in this respect, attempts no apology for himself, but with shame and contrition admits the fact that he has allowed too many people to run over him. Under these circumstances it will be satisfactory to the authors of the circular to know that the new attorney, in fact (whose card is hereto attached), proposes to let no grass grow under his feet, but by the most certain and expeditious means known to the law, to settle the question as to the validity of the "Basement Extension Patent," of August 27, 1867.

New York, August 1st, 1881.

THADDEUS HYATT.

The following circular is a copy of the one issued by the infringers:

Important Facts that interest the Owners of Real Estate, Architects and Builders of Architectural Iron Work in the City of New York and other cities.

The attorneys of Elizabeth A. Lake Hyatt have threatened and continued to annoy owners of real estate with threats of suit for infringement of what we believe to be a worthless patent, granted to

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Thaddeus Hyatt, in 1867, and reissued in 1878 for improvement in Vault Lights.

We give below a few of the reasons why there is nothing to fear from this continual annoyance.

Hyatt was not the original inventor.

Everything described in his first patent of 1845, had been in use in London, and other parts of Europe, six years prior to his patent. There were also patents in Europe and this country that antedate his claim.

In the year 1872, James C. French and others were sued for infringement of Hyatt's Patent of 1845. After getting the evidence together, the attorney for French offered the complainant the privilege of putting the patent of 1867 with their suit, which offer they declined, and after a disclosure of the evidence, they conceded their clients' case was hopeless and withdrew the action.

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There have been about one hundred and twenty Patents granted in the United States to different individuals for improvements in Vault lights since the year 1834. Thirty of them were issued previous to Hyatt's patent of 1867 and ninety-seven of them previous to his reissued patent of 1878.

Knowing all these facts he has the effrontery to claim that they are all infringements of his claims—and demands royalty from all of them.

JAS. L. JACKSON,
J. C. FRENCH.

The undersigned Manufacturers of Architectural Iron Works do concur in the above.

James L. Jackson, Iron Works, 315 E. 28th St., N. Y.

A. J. Campbell, Iron Works, 558 W. 33d St., N. Y.

J. C. French & Son, Vault Light, 537 Canal St., N. Y.

Lindsay, Graff & Megquier, 622 E. 14th St., N. Y.

T. Nichols & Bro., 197 Wooster St., N. Y.

Wm. T. Day, 22 West 3d Street, N. Y.

Heuvelman & Co., 842 Broadway, N. Y.

Blake, McMahon & Co., 517 W. 25th St., N. Y.

G. B. Billerwell, 120 Broadway, N. Y.

E. McGuiness & Co., 356 to 360 E. 76th St., N. Y.

Farrin & McCollough, 71 Watts St., N. Y.

John S. Cochran, 195 S. 5th Ave., N. Y.

Mallon & Rourke, Jane St. and 13th Ave., N. Y.

J. M. Duclos, 120 Broadway, N. Y.

Johnson Bros., 215 & 217 Grand St., N. Y.

James Toner, 211 W. 50th St., N. Y.

James Carney, 205 E. 40th St., N. Y.

Cook & Radley, 214 to 220 E. 37th St., N. Y.

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James Taylor, 172 Greene St., N. Y.

E. O. Perrin, Jr., 20 E. 43d St., N. Y.

John F. Outwater, 339 Adams St., Brooklyn.

Howell & Saxtan, 353 Adams St., Brooklyn.

F. W. Wurster, 130 First St., Brooklyn, E. D.

M. McKinney, 29 Furman St., Brooklyn.

J. S. & G. E. Simpson, 28 to 36 Rodney St., Brooklyn.

Healy Iron Works, 5th St., cor. North 4th, Brooklyn, E. D.

Mansfield & Fagan, 232 Willow St., Hoboken.

Plaintiff then called, as a witness in her behalf, ROBERT K. ELLIOT, who, being duly sworn, testified:

I reside in Maryland, a short distance from Washington, where I am a practising lawyer. The plaintiff is my sister-in-law. I have seen the defendants, and Mr. Angier, their attorney.

My first interview with the licensees operating the patent in the city of New York, and their attorney, who at that time, I believe, was Mr. Angier, occurred in this city at the New York Hotel in November, 1880. I came here at the instance of Mrs. Hyatt to represent her interests. I understood from Mrs. Hyatt, which was confirmed by my interviews with the defendants and their attorney, that they had ceased to pay royalties under their several licenses. These parties were Ingalls & Mark, and Cornell, and a firm in Baltimore, Bartlett & Robbins. There was a considerable amount of money due under the licenses, and there were suits pending between the parties back and forth, and I came here to adjust those if I could, and we did adjust them on the 24th of November, 1880, by one or two papers under seal, I think. I recommended to the plaintiff, Mrs. Hyatt, to make a considerable abatement of the

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amount due her, for the sake of peace; that abatement was made. There was an account stated. I do not remember the amount. Mrs. Hyatt requested me to take charge of this matter for the purpose of settlement. My consultations and interviews were with Mr. Angier.

Q. Was there anything said, or any agreement made, with reference to prosecuting infringers, other than expressed in the written papers at that time?

A. Do you mean whether there was anything in the nature of an agreement, or anything said in conversation?

Q. Agreement.

A. Everything that antedated the execution of that paper of November 24th, 1880, is in the paper, and that speaks for itself.

Q. There were conferences or talks about prosecuting infringers?

A. I advised it, always. The scheme which was finally settled upon was contained in what is called the Trust deed. At that time, as well as now, Tice & Jacobs held a license which in terms provided for a royalty at sixty cents a foot. They had not paid their royalties, if I remember. After this agreement was made, or at the time it was made, there was a general understanding all around, that we would go for them and pursue them by every legitimate and proper means, in the first place, to collect these royalties at sixty cents, and after the 24th of November, 1880, Mr. Angier sent to me the draft of a notice to restrict them, under some provision of the license, to the territory contained in the city of New York. I can recall no agreement prior to the execution of the agreement of November 24, with reference to the prosecution of Tice & Jacobs. It was generally understood that we must pursue them to collect the royalties at sixty cents per foot.

Q. Was there any agreement or discussion prior

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to the execution of these agreements with reference to restricting Tice & Jacobs in their territory?

A. There may have been, but I can't recall it. Immediately following the agreement there was a formal written notice sent to me by Mr. Angier in his handwriting, in the interest unquestionably, at the parties to this agreement of November, 1880, to restrict them to the city of New York. I concurred in it, because I felt that they should comply with their contract, and inasmuch as they did not do that, we were not under any obligation to extend any privileges that the paper called for, and we had a right to withdraw them.

Q. Was there any agreement entered into prior to the agreement of November 24th, with reference to Tice & Jacobs?

A. The whole controversy, as I remember it, was crystallized into this paper. Mr. Angier prepared the paper; I don't know that he drafted it exactly in the form in which it now appears; his original draft was altered somewhat by my amendments, but it came through his hands in its present shape. I received the notice of restriction after the agreement of November 24. Tice & Jacobs were sued, I think, in January, 1881, by Mr. Angier, to collect these royalties. (Request of licensees to Angier & Elliot, to take action respecting Tice & Jacobs shown witness). I think I received a paper to this effect, and I think this is perhaps a copy of that paper.

(Paper admitted in evidence, and marked Plaintiff's Exhibit 1, of March, 22d, 1883).

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Plaintiff's Exhibit No. 1.

NEW YORK, July 19th, 1881.

To Messrs. R. K. ELLIOT and F. H. ANGIER, Trustees:

Gentlemen-—The subscribers, constituting "a majority of the licensees" who have exclusive licenses from Mrs. Hyatt for the States of New York, New Jersey, Pennsylvania, Maryland, Delaware, and the District of Columbia, respectfully represent that the firm of Tice & Jacobs, and, as we believe, is also known to yourselves, are selling and offering to sell, at various places, in the above named territory, other than the city of New York, illuminating tiles, and other articles, to be used in the construction of "Basement Extension Roofs," greatly to the damage of the business of our several firms.

We, therefore, request that you should proceed against said firms as infringers within said territory, exclusively granted to us, as, in our judgment, it is advisable and important that you should so proceed, agreeably to the articles of trust accepted by you, bearing date Nov. 24, 1880.

With much respect, &.c.

INGALLS & MARK,
By J. K. INGALLS.

DALE TILE MFG. Co. (Limited),
By E. P. GLEASON, Treas'r.

BARTLETT, ROBBINS & Co.,
By D. L. BARTLETT.

I don't remember what I did after the receipt of that paper. Mr. Angier had charge of the matters here. I suppose I wrote to him about it; I corresponded with him about the business, and quite

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naturally I should have written to him; I don't think I made any objection to bringing a suit upon the ground upon which they asked it to be brought; I would say in further answer to the question which I answered, I didn't think I did, understanding now that it related to the form in which they should be sued; I did at that time entertain the opinion that they could not be proceeded against as infringers; I thought the fact of their having a license might operate to defeat that; whether they were violating that license was another question, and they might properly be sued for violation, either of the original license of the restriction of the license; I do think I criticized bringing suit against them as infringers; if I did, it was probably in a letter to Mr. Angier, although I don't pretend to speak accurately about what I wrote; if I did so so, I had that opinion as a lawyer; I thought that was not the proper manner to do it.

Q. Do you know anything about certain suits that were commenced in the name of Mrs. Hyatt, against parties in New York who were alleged to be infringing her patent in 1880 or 1881?

A. I do; I had correspondence with Mr. Angier about that, and I also had a conversation with him prior to the commencement of those suits, with reference to them; the general arrangement was this: After the settlement of November 24th, I directed Mr. Angier to proceed against all infringers, without distinction; Mr. Angier did enter some four, five or six suits; the understanding between him and me, I representing Mrs. Hyatt, as her attorney in fact, and following my understanding with her, was that these suits should be prosecuted and out of the recovery she was to have fifty per cent. net; Mr. Angier and myself were to receive a sum equal to fifty per cent. of anything that we recovered; she made the arrangement with me, I made it with him; then I, not being in the City of New York, and having no practice there, made an

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arrangement with him by which he was to receive two-thirds and I one-third; I think that arrangement was executed by the division of moneys recovered in that proportion; there was some money recovered by the settlement of suits, in some way; Mr. Angier sent it to me, I know; all of these suits were brought by Mr. Angier for Mrs. Hyatt, under my agreement with him as to compensation.

Q. Did you ever receive any request or notification from the licensees or the majority of them to bring any suits under the trust agreement?

A. I had an impression that I did, but if I did, it was in writing; I don't find any such writing; I have an impression that there was a request of that kind; I will not swear to it; I do not recollect it; as to the moneys derived from Tice & Jacobs, after these suits were commenced, Mr. Angier was acting with me as co-trustee; I had an interview with Angier with reference to those moneys about October, 1881. I came on to see him with reference to the state of his account as trustee. He had received with my approbation the moneys that had been paid by Tice & Jacobs from time to time, and had given me information concerning the same, and we had received from Tice & Jacobs their quarterly statements, and there was apparently a discrepancy between them. I called Mr. Angier's attention to that, and it was corrected. At that time, or about that time, these persons who are now sued, and others who were represented by Mr. Angier, had ceased to pay royalties, and there was trouble ahead. We had a conversation about it, and I think he expressed a desire to be relieved from the trustreeship at that time. He had something—a very considerable portion of the amount—and shortly after that I think there was a total cessation of payments on the part of these persons. That cessation probably occurred November 1st, the time the account was due.

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Q. In that interview did he express a desire for you to collect the moneys from Tice & Jacobs thereafter, or was anything said on that subject?

A. I think he always said—he said at that time, certainly—that they might be paid directly to me. Thereafter he required that the checks should be drawn to the joint order, and they were so drawn and sent to him and endorsed by him and returned to me.

Q. There was a dispute in this conversation in October between you and him, was there not, in regard to the amount of moneys which he held in his hands?

A. This account of the money he received did not agree with the account Tice & Jacobs had sent. There was one item out. There was no dispute about it. I showed him the returns, and he examined his accounts, and he either sent me a note afterwards, or told me that there was that difference; that Tice & Jacobs' account was correct, and his was not. I never heard of any objection to my claiming these moneys from Tice & Jacobs; Mr. Angier never objected, to my knowledge or any of the licensees, to my recollection.

(Paper shown witness.)

I have seen that paper. It is a mere notice to Tice & Jacobs that they must pay the royalty thereafter to Angier and myself.

Paper admitted in evidence, and marked Plaintiff's Exhibit 2, of March 22d, 1883.

Plaintiff's Exhibit No. 2.

FEB. 1st, 1882.

Messrs. TICE & JACOBS:

Gentlemen—You are aware that on Nov. 24th, 1880, Mrs. Elizabeth A. L. Hyatt executed to

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myself and R. K. Elliot as joint trustees an assignment of all her right, title and interest in and to the royalties thereafter to become due from you under the license held by Jacob Jacobs of your firm, a copy of which deed of assignment I herewith enclose.

This is to notify you that from and after this date, all checks for royalties due by said Jacobs or your firm under said license must be made to the joint order of F. H. Angier and R. K. Elliot, trustees, and that any checks otherwise drawn will not be considered by me as payment of the royalties due by you to said trustees under the terms of said assignment of which you have notice.

You checks may, however, be forwarded to Mr. Elliot as heretofore,

Yours resp'y.

F. H. ANGIER.

Q. Did you in October, 1881, after the reissue of the patent, write a letter to Mr. Ingalls with reference to bringing a suit, asking him to furnish you names of persons who were infringers, and the dates—with reference to bringing suit by the patentee for infringement?

A. I think I did. They never furnished me names of infringers after that time, so far as I remember.

The witness then identified a number of letters, which were admitted in evidence and marked Plaintiff's Exhibits 3 to 12, inclusive, of March 22d, 1883.

Plaintiff's Exhibit No. 3.

NEW YORK, Dec. 6, 1880.

R. K. ELLIOT:

Dear Sir: I have had this afternoon an interview

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with Mr. and Mrs. Hyatt, who inform me that it is their intention to proceed to-night to Washington.

They have taken a memorandum of several matters upon which I desire them to consult with you, but as a precaution against any misunderstanding, I have thought it advisable to also write you.

1st. In regard to your proposed action against Tice & Jacobs for back royalties, I do not think that Mr. and Mrs. Hyatt could better subserve their interests than my placing their claim in my hands. My two years experience in the matters connected with the vault-light business have rendered me, I think, peculiarly competent to be of service in this matter, and if you and Mrs. Hyatt see fit to entrust the case in my hands, I can assure you that it shall be faithfully attended to, and that I will endeavor to make the matter of compensation satisfactory.

Mr. Hyatt informs me that Mr. Scott has already been spoken to in relation to the suit.

If you are committed in that regard, I would suggest that Mr. Scott, at the proper time, be employed as counsel if Mr. Hyatt so desires.

Should you and Mrs. Hyatt see fit to instruct me in the matter, I will commence action within twelve hours from receipt of data.

2d. Mr. Hyatt informs me that it is proposed to at once proceed against infringers in Richmond, Va.

This matter you will doubtless attend to in person, but there are here in New York a number of infringing parties whom I think should be sued at once, particularly the owners of buildings. Suits against owners would, I think be generally promptly settled.

If you and Mrs. H. will authorize me to commence such suits in my discretion, I will make any reasonable equitable arrangement with you for compensation out of any amount that may be recovered or collected in settlement.

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3d. Mr. Hyatt also informs me that Mr. Fryer has elected to take a new license.

I presume it is not necessary to remind you that before such new license is delivered, Mr. Fryer should subscribe to the old and the supplemental agreement and current old license.

4th. I observe that Jacobs' license requires him to pay monthly. This being so, notice should be at once given him to pay fees subsequent to Nov. 24th, 1880, to us. What is your idea as to form of notice? Shall I serve such, and if payable to us, to which of us?

Please let me hear from you in full as to all of above matters, and greatly oblige

Yours truly

F. H. ANGIER.

Plaintiff's Exhibit No. 4.

N. Y. Feb 2, 1881.

R. K. ELLIOT, Esq.

Dear Sir.—I have been served with motion papers in Hyatt vs. Jacobs, for security for costs on the ground that plaintiff is a non-resident. I wish you would by return mail, if possible, send me your own affidavit (duly authenticated) to the effect that you are the attorney in fact and general agent of plaintiff, have known her intimately for years; that she is and always has been a resident of this city, that she went to Europe only last December temporarily, and expects to return in May, and that she owns real estate in this city in her own name, to wit (specifying it) worth at least $

This affidavit I would make myself, but am ignorant of the value of her building, and I could not swear that she still owns it. Besides, I do not like to deal with my own affidavits arguing motions.

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The three motions in this case will be heard next week, probably Monday, and I will apprise you of the result.

When you were here you requested me to write you my ideas in regard to division of moneys received in the prosecution of infringement suits.

They are these.

1st. In all cases Mr. Hyatt to receive one-half of the recovery over costs and disbursements.

2d. In contested cases, you to receive one-quarter, and I one-quarter, and you to render assistance whenever required, in the way of taking testimony, trial, &c.

3d. In cases that are settled without contest (where I do all the work) I to receive 40% and you 10%.

This seems to me fair. If you don't think so, let know what you do think.

There are several matters which I will write you about soon, but I am so overburdened with business this week, that they will have to away a more leisurely time.

We are having an old-fashioned winter here. To-day is intensely cold.

Hoping to hear from you Friday,

I remain yours truly,

ANGIER.

Plaintiff's Exhibit No. 5.

NEW YORK, Feb'y. 5, 1881.

R. K. ELLIOT, Esq.

My Dear Sir.—Yours of 4st inst., is at hand. I will oppose the motion for security as well as I can with the meagre means at hand. If the motion is granted, it does not matter, as we can doubtless give them a bond without much trouble.

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I agree to your suggestions in regard to division of fees in infringement suits. I always want to do what is right in such matters; and if that arrangement is satisfactory to you, it will be so to me.

I have settled the Arnold and Constable case for the full amount 60¢ per foot, for the first suit brought. I think that it was quite a success. They returned 739 ft. 6 in., and I received $443.70. One-half of this amount, after deducting $10.02 disbursements, I credit to Mrs. Hyatt. For your third of the other half ($72.28), please find my check enclosed.

I have also received from Tice & Jacobs $81.22 on account of royalties from Jan. to Feb. 3. Of course I was very guarded in the manner of receipting, and received it without prejudice to any of Mrs. H's claims, &c., as Mrs. H is in debt to the "fund" to the amount of $452.70, I carry these two amounts, $81.22 and $216.84, into the fund, and give her credit for $298.26.

I have brought another suit on a small job put down by Lindsay, and have prepared the papers in the Buffalo case, but I find that I will be obliged to go personally to Utica to get it properly in shape, which I will endeavor to do early next week. I wish you would keep me posted as to infringements here.

I have not felt disposed to crowd too much on Jackson so soon after the Arnold matter.

I think I have learned something of the "true inwardness" of T. & J.'s defense, and I will write you further in regard to it hereafter, if I do not see you soon. Please acknowledge receipt of check, and oblige,

Yours truly,

F. H. ANGIER.

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Plaintiff's Exhibit No. 6.

NEW YORK, June 20, 1881.

R. K. ELLIOT, Esq.

My Dear Sir.—I have been holding for you for some time the amount indicated by enclosed check ($30.84), in expectation that you would shortly be in New York, when I could pay it to you personally. It is for your share of the recovery in the Buffalo case, which, as Mr. Hyatt has probably informed you, was settled after long negotiation at 30¢ per square foot.

I deem it will settled at that figure, inasmuch as I discovered after the suit was commenced that the construction was not a basement roof at all, but rather a covered area, connected with the basement only by arches. I would by no means have risked a trial on it, although I stiffly refused their first offers of settlement, which were first $50, then $100, &c., &c. At last we agreed on 30¢. The works comprised 616 feet 8 inches, at 30¢, $185, one half of which ($92.50) I paid to Mr. Hyatt by check to his wife's order. Of the balance I enclose a check for your third, $30.84.

The Jacobs case appeared on the calendar to-day, but there were so many cases "ready" in advance of it, that it is doubtful if it can be reached before the last of the week. Please hold Mr. Hyatt at readiness to come on short notice. I will telegraph when I need him.

Please acknowledge receipt of check, and oblige.

Yours truly,

F. H. ANGIER.

Plaintiff's Exhibit No. 7.

NEW YORK, July 23, 1881.

R. K. ELLIOT, Esq.

My Dear Sir.—I was yesterday served by the

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New York licensees with a formal notice, or "request," of which I herewith enclose a copy. Mr. Hyatt was present in my office at the time of its delivery, and expresses his approval of its suggestions. The licensees think that an effort should be made to obtain an injunction in the U. S. Courts, restraining T. & J. from infringing upon their territory, and that we are, by the terms of the trust assignment, bound to institute such a proceeding when requested by a majority of the licensees, and that the "fund" is primarily responsible for the expenses. I presume this is so.

This suit, when commenced, will make six pending litigated cases in my care in relation to the Hyatt patent. I have, I believe, thus far received from them, in the aggregate, exclusive of disbursements, a trifle over $100. The old suit against Tice & Jacobs has involved a vast deal of labor—much more than I anticipated at the outset—and this new suit will at once necessitate the preparation of an unusually lengthy bill in equity, alleging special matter, and of voluminous papers, for injunction. I propose to charge against these six cases for myself, $500, generally on account, which I think you, as a lawyer, will concede to be not unreasonable. I had some talk with Mr. Hyatt in regard to the matter (Mrs. Hyatt being confined to the bedside of her sick daughter), and he seemed inclined to acquiesce in whatever should meet with your approval, and thought his wife would submit to your judgment.

I should commence the preparation of the papers in the new suit at once, though I must say that I rather shrink from the labor in this hot weather.

Yours truly,

F. H. ANGIER.

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Plaintiff's Exhibit No. 8.

NEW YORK, August 8, 1881.

R. K. ELLIOT, Esq.

My Dear Sir: Your favor from Saratoga dated 8th, postmarked 7th, is at hand.

I also received your telegram from Washington on Thursday, and promptly wrote you that afternoon at N. Y. Hotel, that I could not meet you on Friday as I was compelled to go to Suffolk County to attend an important foreclosure matter, and requested you to meet me at my office on Saturday morning, as there were many matters of importance I wish to discuss with you. My letter must have been in the hotel office before your arrival, and should have been delivered to you.

I am at a loss to account for the tone of your letter. You seemed disposed to criticize me for I know not what. I have faithfully discharged my duties both as trustee and as Mr. Hyatt's attorney, and my services seem always to have been satisfactory to all parties until now, when I have requested a moderate sum of money on account.

I do not solicit the position of custodian of this fund, and do not desire it, and since there seems to be some want of confidence either on your part or that of Mrs. Hyatt, I respectfully request that I be permitted to withdraw entirely from the trusteeship, and to turn over to you such moneys as may be on hand. I shall, however, retain the sum of $500 on account for services as attorney in the four pending infringement suits, and for my statutory fee as trustee.

The new proceeding against Tice & Jacobs I have suspended for the present in deference to your suggestion, though it seems to me that the trustees have no choice but to obey the directions of the licensees. The fund was created in their interest, and for the express purpose of relieving them from personal expense in such suits as they desired to bring for infringement.

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There may be a question, however, as to whether this suit is precisely such as those contemplated in the assignment to us, and I will not proceed further until some agreement is arrived at, though the papers are ready for filing. I have no wish to take any undue responsibility in the matter.

I think it would be very advisable for you to see me personally if you can make it convenient to do so. As you have doubtless heard from Mr. Hyatt, there seems to be a disposition on the part of all the patent lightmen here to consolidate all interests. In such case I presume T. & J. would want, in some way, to get rid of the pending suit against them. As to the best means to be pursued in such case, I think we should consult together as soon as possible.

I leave here on my vacation about the 20th inst.

Yours truly,

F. H. ANGIER.

Plaintiff's Exhibit No. 9.

NEW YORK, Oct. 14th, 1881.

R. K. ELLIOT, Esq.

My Dear Sir: On returning to the office and getting out my books, I find to my surprise that T. & J. are right, and that on Aug. 5th they did pay in a check for $400.05. I can only assure you, with the greatest earnestness, that my statement this afternoon to the contrary was unintentional, and owing to my inability to state from recollection amount received more than two months ago.

I enclose full statement, as requested. The balance on hand appears to be $285, instead of $218, which I believe was the amount I gave you according to my memory this afternoon. I cannot account for my stating Aug. 15th that the payments since July had been "small" except upon

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the theory that I wrote without looking at the books, and had forgotten that last payment of $400. At least you will give me credit for common sense.

I will be at hotel promptly to-morrow at 11.

Yours truly,

F. H. ANGIER.

Plaintiff's Exhibit No. 10.

NEW YORK, Oct. 15th, 1881.

R. K. ELLIOT, Esq.

My Dear Sir: I find my bank account low, and enclose check for $200 on account of the $367.32 held for Mrs. Hyatt.

I will forward the balance as soon as practicable, but hope Mrs. Hyatt will not put me to inconvenience in the matter just at present. You might suggest to her that I have made no deduction for my statutory commissions as a trustee, which I believe are over $100.

Yours truly,

F. H. ANGIER.

Plaintiff's Exhibit No. 11.

WASHINGTON, D. C., April 27, 1882.

F. H. ANGIER, Esq., New York:

Dear Sir: I am in receipt of your letter of the 26th in reference to the decision of Judge Larremore in the case of Hyatt vs. Jacobs. I think you are rather premature in considering the matter you refer to as having "been judicially determined;" a judicial determination can only be reached after the case shall have been finally decided. The deed of assignment to which you refer provides, if I

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remember correctly, that an accounting shall be had every three months, and all monies procured by the trustees and not used for the purpose expressed in the trust shall be paid over to Mrs. Hyatt. I do not understand that the assignment transfers the ownership of the fund to the trustees or the licensees for whose accommodation it was made. If this were so the position would be absurd in the extreme in view of the existing condition of things, viz.: Ingalls & Co. and the Dale Tile Co., licensees, operating the patent under their respective licenses refusing to pay what they contracted to pay, and claiming to own that which other pay, and in addition to all this using one of the trustees under the assignment as their attorney to defeat Mrs. Hyatt in the collection of money due her—this anomalous and ridiculous condition of things must be apparent to you upon a moment's reflection, and I cannot, for the life of me, see how you can defend Ingalls, et al, and at the same time act as trustee under this assignment. If I were in your place I would give up one position or the other; as for Ingalls, et al, they have no right to talk about the assignment of 1880 so long as they refuse to pay according to their several contracts. This is simply my own view of the case, and I frankly state it to you. So far as payment of royalties have been made to me, they are subject to all legal claims upon them.

Yours, respectfully,

R. K. ELLIOT.

Plaintiff's Exhibit No. 12.

WASHINGTON, August 13th, 1881.

F. H. ANGIER, Esq.:

Dear Sir:—On my return to this city yesterday, I found your letter of the 8th. The object of my

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letter from Saratoga was to express to you my view touching the assignment of November last and the duties of the trustees under the trusts thereby created, which in my judgment is very plain. In other words I do not think that wither you or myself as attorney-at-law can deal with a fund which we hold as trustees. The two characters are essentially different in this as in most other cases. I do not question the lien of an attorney upon the fund of his client for professional services rendered at the instance of the owner of the funds, but I do not care to be involved in any matter growing out of your professional connection with Mrs. H's cases. I mean nothing derogatory to you but merely this: As trustee, I ought not to be placed in the position of an umpire over fees, or be charged in any other character than the one I assumed when I accepted the trust; hence I say the trust fund should not be disposed of excepting upon our joint order, and then only in accordance with the terms of the trust.

What Mrs. H. may think proper to do with her portion is matter of no importance to me. The assignment specifies the amount we are to collect per square foot—one half thereof to be paid to Mrs. Hyatt; the other is constituted a fund to be be held by us for purposes expressed.

We cannot go wrong if we follow the terms of the paper. We are sure to go wrong if we depart from it.

I have communicated to Mr. Hyatt your desire to be relieved from the Trusteeship, and will write you further when I hear from him.

In the meantime you may send to Mrs. Hyatt, or to me for her, such money as you have belonging to her, together with statement, &c.

Yours truly,

R. K. ELLIOT.

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It is admitted that the suit of the plaintiff against Tice & Jacobs for sixty cents per foot for royalties was tried in April, 1882, and several months after the defendants refused to pay royalties.

Being cross-examined, on behalf of defendants, the witness testified:

Q. Did you know whether or not there are any suits pending against infringers to-day under the patent of 1878?

A. I have no personal knowledge of the fact; I heard of a suit pending.

Q. Have you yourself brought any suits?

A. I don't think I have, personally.

Q. You remember the trust agreement, of November, 1880. Have you yourself taken any steps under that agreement personally?

A. Steps were taken, I think, to prosecute infringers whether under that agreement or not I can't say.

Q. Please tell me what steps you yourself took pursuant to that agreement, if any?

A. I acted when called upon to act by the parties to that paper.

Q. Tell me what you did?

A. What I did in bringing suits would be a matter of record. I have no personal recollection of having brought any suits, or of having been asked to bring any. I was ready to bring them always.

Q. Please tell us, what you did, if you did anything at all?

A. The only answer I can make is, I did my duty as I understood it.

Q. What, if anything, did you do pursuant to the terms of that agreement?

A. The suit against Tice & Jacobs at the instance of Mrs. Hyatt was contemplated and prosecuted. I think that might be said to have had some relation to that agreement. There

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were other suits brought about that time for her for infractions of this patent, antedating the agreement. They were managed by Mr. Angier. I assented to every proceeding suggested by him, I think, with the exception, perhaps, of criticizing the mode of suing Tice & Jacobs. I didn't think we could proceed against them as infringers.

Q. Except the suit against Tice & Jacobs, and the suits brought by Mr. Angier, you have no knowledge of any action taken under that agreement?

A. Yes, sir; there is a letter in evidence here that I wrote to Mr. Ingalls, requesting him to send me some name that I might test that patent here. I never received any reply to it.

Q. Did you authorize any suit to be brought in Ohio?

A. I think I did; I can't give the exact date, but possibly a year or more ago. I gave a general authority to Chamberlain, if he found infringers out there to let me know as he met them, to let me see the papers, and, if in my judgment it was all right, to go ahead. That was the scope of it, and Chamberlain brought this suit. I don't know the name of the defendant.

Q. Did you know about the surrender of the patent in 1878?

A. Up to yesterday evening I thought I did not—I was reminded in a conversation I had with Mr. Hyatt yesterday, that he did consult me about it, but it had totally escaped my memory. I saw his writing, which refreshed my memory, a written memorandum. I was cognizant of the surrender.

Q. You were acting for Mrs. Hyatt?

A. Yes, sir, I was; not in that matter, perhaps, but I was her attorney in fact.

Q. And you have had the specifications before you?

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A. Mr. Hyatt consulted me about it as a lawyer, not in any other way, and I think I had the papers all before me, and I think I gave him the general opinion that his patent ought to embrace his whole claim. In that aspect of the case, and with that view, I think I advised with him and perhaps suggested the re-issue, or approved it.

Q. Under the agreement of 1880, what they call the trust agreement, you afterwards got royalties, didn't you?

A. Yes, sir; I and Mr. Angier. First they were drawn to our joint order, or perhaps to Mr. Angier's individual order; thereafter they were drawn to the joint order, and the checks were endorsed by him and sent to me, and after that they were drawn to me, and sent to me directly. I gave them to Mrs. Hyatt, with some deductions for expenses.

The Court rendered judgment for the plaintiff, and made the following findings of fact and conclusions of law.

SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT, Plaintiff

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants.

I, Charles H. Truax, Judge, before whom this action was tried, having heard the proof and

203

allegations of the parties, do I make the following findings of fact and conclusions of law, viz.:

That the defendants, Joshua K. Ingalls and Jacob Mark, for some time up to the 1st day of May, 1882, were engaged in business in the city of New York under the firm name of Ingalls & Mark, and on May 1st, 1882, the said firm of Ingalls & Mark was dissolved by mutual consent.

II.

That the plaintiff was the owner of certain rights secured to her by Letters Patent of the United States, numbered 68,332, dated the 27th day of August, 1867, and reissued the 6th day of August, 1878, numbered 8,363, and reissued September 27th, 1881, numbered 9,883, for an Improvement in Illuminated Basements, and Basement Extensions, Sidewalks, Roofs, &c.

III.

That on the 21st day of November, 1878, the plaintiff and said defendants Ingalls and Mark, who were theretofore infringers of said patent, and others entered into the following agreement: Exhibit A. Complaint.

IV.

That on the said 21st day of November, 1878, the said plaintiff granted to the defendants in pursuance to the above agreement, a license to manufacture and sell Illuminated Basement and Basement Extensions or Illuminated gratings and material for the same within certain territory of the United States under said Letters Patent.

204

That the following is a copy of said license: Exhibit B. Complaint.

VI.

That thereafter the defendants manufactured and sold said illuminated work and paid royalties therefor under said license and agreement until in the year 1879, when certain controversies arose between the defendants and the plaintiff, whereupon the plaintiff commenced an action against the defendants to restrain them from manufacturing roof lights other than basement extensions, and that the said defendants, with the other licensees mentioned in said agreement of November, 1878, brought an action against the plaintiff to enjoin her and her husband, Thaddeus Hyatt, from manufacturing and selling Illuminated work secured by Letters Patent under said agreement.

VII.

That thereafter all the controversies between the defendants and the other of said licensees under said agreement and the plaintiff were adjusted, compromised and settled, and all the said parties thereupon entered into the following agreement, bearing date the 24th day of November, 1880. Plaintiff's Exhibit E, p. 106.

VIII.

That contemporaneously with the execution of the said last mentioned agreement, the said plaintiff executed an assignment in writing under seal upon certain trusts therein contained, in and to all royalties thereafter, to become due to her, by any reason of any license granted by her to manufacture and

205

sell under said patent in the territory to which said defendants were licensed to manufacture and sell, except the royalties due or thereafter to become due under the several licenses dated November 21st, 1878, granted to the defendants, J. B. & J. M. Cornell and Bartlett Robbins & Co., and that the following is a copy thereof: Plaintiff's Exhibit F. p 110.

IX.

That after the execution of the said agreements of 1878 and 1880, the defendants, Ingalls & Mark, as said copartners, continued to manufacture and sell basements and basement extensions, &c., under said license until the dissolution of said firm on May 1st, 1882.

That subsequent to the refusal of the defendants to account or pay as provided for in said agreements, and on or about the 14th day of January, 1882, the plaintiff caused a notice, of which the following is a copy, to be served upon the defendants, respectively:

"Messrs. INGALLS & MARK:

Gentlemen: In view of your failure to make returns in writing and payments of royalties to me as required by the license granted by me to you November 21st, 1878, under my patent for Improvement in Illuminated Basements, Basement Extensions, &c., and your expressed determination not to make any further such returns or payments, I herewith notify you that I deem said license forfeited by you, and as no longer existing.

Dated New York, January 14, 1882.
Yours, &c., E. A. L. HYATT,
By WM F. SCOTT, her Attorney, 40 Wall St., N. Y."

206

XI.

That the said defendants, and each of them, wholly disregarded the said notice, and refused to comply with the same, and continued to manufacture and sell said illuminated work under the said license as they had theretofore done.

XII.

That since the dissolution of said firm of Ingalls & Mark, on May 1st, 1882, the defendants Jacob Mark has manufactured and sold said illuminating work under said license, and has continued so to do down to the trial of this action.

XIII.

That neither of the said Joshua K. Ingalls or Jacob Mark, defendants, have ever offered to surrender or cancel their said license obtained from the plaintiff.

XIV.

That neither upon the dissolution of said firm of Ingalls & Mark, defendants, nor at any time thereafter, has any assignment, transfer, or disposition of said license given by the plaintiff to the said defendants have been made by the defendants, the one to the other, or by either of them.

XV.

That the said defendants have accounted to the plaintiff in pursuance of the terms of said agreement of November, 1878, and have paid the royalties, as shown by said accounting, to August 1st, 1881.

XVI.

That the defendants have duly accounted,

207

pursuant to said agreement of November, 1878, for all illuminated work manufactured and sold by them for the quarter ending November 1st, 1881, and that by said accounting it appears that the sum of $632.32 is due to the plaintiff by the defendants for royalties, ending said quarter, but that the defendants have refused to pay the same, and have not paid the same, or any part thereof.

XVII.

That since the said first day of November, 1881, the said defendants, and each of them, have neglected and intentionally refused to account to this plaintiff for any and all illuminating work, or basements or basement extensions manufactured or sold by them, or either of them, as provided for under the said license and agreement, or in any manner.

XVIII.

That by the said assignment of 1880 it was provided that the said trustees should prosecute suits for infringement of plaintiff's said Letters Patent, when such prosecution should, in the judgment of a majority of the New York licensees subsequent to November 20, 1878, become advisable, but that the said trustees were not requested or advised by the said licensees, or any of them, to prosecute any action for infringements, except that the defendants did, in or about the month of July, 1881, request said trustees to commence an action against Messrs. Tice & Jacobs, of the city of New York, as infringers of said Letters Patent, and in pursuance of the terms of said trust deed or assignment of royalties of November 24, 1880.

XIX.

That the said firm of Tice & Jacobs was

208

operating under a license "to manufacture at the city of New York only, and sell at any place in the United States, the illuminated gratings set forth in said patent, excepting at certain laces therein mentioned, and excepting such other States and places as may be hereafter reserved," and in said license the said Tice and Jacobs acknowledged the validity of plaintiff's said Letters Patent; and

That the said plaintiff notified the said Tice & Jacobs in writing not to sell the said patented articles beyond the city of New York.

That there is no proof that after the said requests Tice and Jacobs sold any of the patented articles which were delivered out of New York.

XX.

That there is no evidence that the plaintiff, since the 24th day of November, 1880, has violated any of the covenants or provisions of her said agreements with the defendants.

XXI.

That the defendants have failed to prove any facts sufficient to establish the counterclaims alleged in their answer.

XXII.

That on the 18th day of January, 1882, the plaintiff commenced an action in the Court of Common Please for the City and County of New York against the defendants, to recover royalties alleged to be due for the quarter commencing August 1st, 1881, and ending November 1st, 1881, which action is still pending and undetermined.

209

CONCLUSIONS OF LAW.

That the said defendants, by continuing to manufacture and sell said illuminated work under said license, have waived any and all claims for a forfeiture of said license.

II.

That the defendants are estopped from denying the validity of said Letters Patent and the re-issues thereof by the plaintiff.

1st. By reason of their manufacture and sale of patented articles under the said license.

2d. By their covenant as to the validity of said Letters Patent, and other covenants contained in said agreement of November 21st, 1878.

III.

That the plaintiff is entitled to an injunction to be issued out of this Court against the defendants, and each of them, forever restraining and enjoining then, and each of them, their servants, agents, attorneys and assigns from manufacturing, making, using or selling to others to be made, used or sold; any and all illuminating roofs, roof pavements, basements, basement extensions, sidewalks and materials for the same or other articles containing or embracing the improvements secured by virtue of and under the said Letters Patent of the plaintiff, and the reissues thereof, or in any way or manner operating, using or manufacturing under or by virtue of said license and agreements.

IV.

That the plaintiff is entitled to a decree declaring

210

the said license of the plaintiff granted to the defendants, and dated the 24th of November, 1878, forfeited, and that the same be delivered up to the plaintiff to be cancelled.

That the plaintiff is entitled to an accounting from the defendants, and each of them, for all illuminating work manufactured and sold by them, or either of them, since the first day of November, 1881, according to the terms and provisions of their said license, containing and embracing the improvements secured to the said plaintiff by her said Letters Patent and the reissues thereof, at the rate of thirty cents per square foot of said illuminating work, as provided for in said license, and that the plaintiff is entitled to an order of reference to take and state said account.

VI.

That the plaintiff is entitled to judgment against the defendants for the amount of royalties which may be found due from them to the plaintiff on said accounting, with interest, together with the sum of six hundred and thirty-two 32/100 dollars, the amount due the plaintiff from said defendants, as appears from their account rendered for the quarter November 1st, 1881, under the said license, with interest and the costs of this action.

Dated New York, April 25, 1883.

CHARLES H. TRUAX, J.

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[Note: scan of this page is cropped and entire text is not readable]
SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT,
against

JOSHUA K. INGALLS and JACOB MARK,

The defendants, Joshua K. Ingalls and Jacob Mark, respectfully request the ... following Findings of Fact ... Law:

FINDINGS OF FACT.

That, on the 21st day of November, 1878, and thereafter, until on or about May, 1882, the defendants were copartners doing business in the city of New York under the firm name of Ingalls & Mark.

II.

That on the 21st day of November, 1878, the plaintiff was the owner of certain rights secured to her by Letters Patent of the United States, numbered 68,332, dated the 27th day of August, 1867, entitled "An Improvement in Illuminating Roofs and Roof Pavements," and reissued the 6th day of August, 1878, numbered, 8,363, entitled "Improvement in Illuminating Basements, Basement Extensions, Sidewalks, Roofs, &c."

III.

That on or about the 21st day of November,

212

1878, the plaintiff and the defendants, under defendants' said firm name of Ingalls & Mark, with others, entered into a written agreement, a copy of which agreement is annexed to the complain in this action and marked "Exhibit A;" and in pursuance of said agreement, the plaintiff did also, on or about said date, execute and deliver to the defendants a license to manufacture and sell the articles for which said Letters Patent were granted within the States of New York, New Jersey, Pennsylvania, Maryland, Delaware, and the District of Columbia, a copy of which license is annexed to the complaint in this action, and marked "Exhibit B."

IV.

That in and by said agreement and license, it was provided that the fee or royalty to be paid by the defendants to the plaintiff for the privilege of manufacturing and selling within said territory said patented articles should be thirty cents for each square foot of superficies in any and all illuminating gratings made by defendants to be used in the construction of said patented articles until the validity of said Letters Patent should have been sustained by a Court of competent jurisdiction, from which time said royalty should be seventy cents per square foot.

That in and by said agreement and license, the plaintiff agreed with the defendants that she would not thereafter engage in manufacturing said patented articles or materials therefor, and would license no other parties within said territory without the written consent of defendants, and that if either party to said agreements should knowingly and intentionally violate the same, the party so offending should forfeit all right thereunder.

213

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VI.

That the defendants have fully ... kept and observed all of their obligations ... said agreement and license up to ... September, 1881.

VII.

That the plaintiff has violated ... said agreement and license on her ... has, since the execution and delivery ... manufactured and sold, without the consent ... defendants, said patented articles, and ... consent, procured a license similar ... defendants, and embracing within its ... territory to which defendants were ... delivered on or about the 21st of ... 1879, and without consideration, ... A. T. DePuy, who had not theretofore ... or permission to manufacture or sell ... articles within said territory.

VIII.

That at the time of such delivery ... to said DePuy, said DePuy was ... to wit, superintendent in the employ ... and Thaddeus Hyatt, her husband.

IX.

That afterward, and on or about ... of April, 1879, said Alexander T. DePuy ... request and procurement of ... and delivered, without any consent ... last-named license to one Jacob Jacobs ... also at that time a workman in ... plaintiff and her said husband.

214

That plaintiff's acts in respect to said deliveries of said license to said DePuy and to said Jacobs were in violation of her said agreements with defendants.

XI.

That plaintiff further violated her said agreements with defendants in that on or about the ________ day of ________ she consented to the delivery to and use by one William J. Fryer, Jr., who had not theretofore held any license or permission to manufacture or sell said patented articles within defendant's said territory, of a license similar to that of defendants, and embracing within its terms the same territory for which defendants were licensed, which last-named license had been heretofore held and owned by The Ætna Iron Works, a corporation which had become insolvent and had ceased the used of said license prior to plaintiff's said agreement with defendants.

XII.

That is consequence of the violations by plaintiff of her said agreements with defendants, the defendants on or about May 12th, 1879, with others, commenced an action in the Supreme Court of the State of New York against the plaintiff, praying a permanent injunction restraining the plaintiff and her agents from manufacturing or selling said patented articles within this State, and from issuing licenses to any person or persons to manufacture or sell the same within this State, without the consent of defendants, and for an accounting by plaintiff as to her said manufacture, and for damages.

That said action was duly tried, and judgment therein duly rendered in favor of these defendants

215

and others against this plaintiff, granting the injunction prayed for, and directing a reference to take said accounting and to assess said damages.

XIII.

That before said reference was brought on for hearing, and on or about November 24th, 1880, the plaintiff and these defendants, at the solicitation of plaintiff herein, entered into an oral agreement, by which defendants herein agreed that they would waive their claim for damages against the plaintiff, and would continue the payment of royalties to plaintiff, and would discontinue said action brought by them against the plaintiff, upon condition that plaintiff would ratify, reiterate and reaffirm all of her obligations stated in said agreements of November 21st, 1878, and would thereafter faithfully observe and keep the same, and would protect defendants from infringements of said Letters Patent, and would restrict said Jacobs and Fryer, Jr., to the manufacture and sale of said patented articles within the city of New York only, in accordance with a privilege reserved to the plaintiff in and by the licenses held by said Jacobs and Fryer.

XIV.

That the plaintiff also at the same time, agreed with defendants that in order to more effectually protect defendants against infringers, and in order to guarantee defendants that such infringers should be actively prosecuted, she, plaintiff, would set apart certain royalties which should thereafter become due to her from certain licenses other than defendants, and would assign said royalties to one or more persons as trustees, who should hold one-half thereof as a fund to be applied to the payment of counsel fees and other expenses incident to the prosecution of infringers of said patent,

216

whenever such prosecution should be desired or directed by a majority of the licensees holding licenses subsequent in date to November 20th, 1878; and plaintiff did, in pursuance of said agreement, execute and delivery such assignment to Frank H. Angier and Robert K. Elliot.

XV.

That said Angier and Elliot accepted said assignment and trust, and from the date thereof collected the royalties thereby assigned to them, and duly applied the same as directed in and by the deed of assignment to them and said Angier did, at the request of defendants, and a majority of the licensees holding licenses subsequent to November 20th, 1878, and by direction of said Elliot, and with the consent of plaintiff, commence several actions in the Circuit Court of the United States in the name of the plaintiff, against infringers of said patent within defendants' territory, but that before any of said actions could be brought to trial, and before any testimony could be taken therein the plaintiff surrendered the Letters Patent upon which said actions were brought as hereinafter set forth, by which surrender said actions become of no legal force or effect as against the defendants therein.

XVI.

That the plaintiff has failed to keep and perform the obligations of her said agreement of November 24th, 1880, upon her part, in that she has failed to prosecute infringers of said Letters Patent within defendant's said territory, and has, by her said surrender of said Letters Patent, rendered nugatory the efforts of said Angier and Elliot to do so; and in that she has failed to restrict said Jacobs and Fryer, Jr., to the manufacture and sale of said

217

[Note: page 218 missing]

219

construction of Letters Patent of the United States, this Court has no jurisdiction in the premises.

VII.

That the complain herein should be dismissed with costs.

SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT, Plaintiff

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants.

Take notice that the defendants Joshua K. Ingalls and Jacob Mark except to the findings of fact made herein by the Honorable C. H. Truax, Judge of this Court, as follows:

First.—To the II finding of fact.

Second.—To the III finding of fact.

Third.—To the IV finding of fact.

Fourth.—To the VII finding of fact.

Fifth.—To the VIII finding of fact.

Sixth.—To the IX finding of fact.

Seventh.—To the XI finding of fact.

Eighth.—To the XII finding of fact.

220

Ninth.—To the XIII finding of fact.

Tenth.—To the XVI finding of fact.

Eleventh.—To the XVIII finding of fact.

Twelfth.—To the XIX finding of fact.

Thirteenth.—To the XX finding of fact.

Fourteenth.—To the XXI finding of fact.

And defendants except to the conclusions of law of said Honorable Judge, as follow:

First.—To the I conclusion of law.

Second.—To the II conclusion of law.

Third.—To the III conclusion of law.

Fourth.—To the IV conclusion of law.

Fifth.—To the V conclusion of law.

Sixth.—To the VI conclusion of law.

Defendants further except to the refusal of the said Judge to find as requested:

First.—Defendants' VI proposed finding of fact.

Second.—Defendants' VII proposed finding of fact.

Third.—Defendants' VIII proposed finding of fact.

Fourth.—Defendants' IX proposed finding of fact.

Fifth.—Defendants' X proposed finding of fact.

221

Sixth.—Defendants' XI proposed finding of fact.

Seventh.—Defendants' XII proposed finding of fact.

Eighth.—Defendants' XIII proposed finding of fact.

Ninth.—Defendants' XIV proposed finding of fact.

Tenth.—Defendants' XV proposed finding of fact.

Eleventh.—Defendants' XVI proposed finding of fact.

Twelfth.—Defendants' XVII proposed finding of fact.

And defendants further except to the refusal of said Judge to find as requested:

First.—Defendants' I proposed conclusion of law.

Second.—Defendants' II proposed conclusion of law.

Third.—Defendants' III proposed conclusion of law.

Fourth.—Defendants' IV proposed conclusion of law.

Fifth.—Defendants' V proposed conclusion of law.

Sixth.—Defendants' VI proposed conclusion of law.

222

Seventh.—Defendants' VII proposed conclusion of law.

Respectfully,
F. H. ANGIER,
Deft's and Applt's Att'y, 291 B'way, N. Y.

To GEO. W. VAN SLYCK, Esq.,
Atty. for Plff. and Respdt.

At a Special Term of the Superior Court of the City of New York, held at the Court House in the city of New York, on the 25th day of April, 1883.

Present—Hon. CHARLES H. TRUAX, Judge.

ELIZABETH A. L. HYATT, Plaintiff

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants.

This action having been brought to trial at a Special Term of this Court before the Hon. Charles H. Truax, Judge, and the said Judge having heard the proofs and allegations of the parties and made his decision filed herein whereby he finds the facts and conclusions of law which entitle the plaintiff to this interlocutory judgment, now on motion of George W. Van Slyck, counsel for said plaintiff, it is

Ordered and adjudged, that the defendant Joshua

223

K. Ingalls and Jacob Mark, and each of them be and they are hereby, forever and perpetually restrained and enjoined, their servants, agents, attorneys and assigns, from manufacturing, making, using or selling, or disposing of to others to be made, used or sold, any and all illuminating roofs, roof pavements, basements, basement extensions, sidewalks and materials for the same, or other articles containing or embracing the improvements secured to the plaintiff by virtue of and under the Letters Patent of the United States, numbered 68,332, dated the 27th day of August, 1867, and reissued the 6th day of August, 1878, numbered 8,363, and reissued September 27th, 1881, numbered 9,883, for an "Improvement in Illuminated Basements, Extensions, Sidewalks, Roofs, &c."

And it is further ordered and adjudged, that the license of the defendants granted by the plaintiff, dated the 24th day of November, 1878, be and the same hereby is declared to be forfeited by the defendants, and that said license be delivered up to the plaintiff to be cancelled.

And it is further ordered and adjudged, that the defendants, and each of them, do account to the plaintiff for all illuminating articles, roofs, roof pavements, basements and basement extensions, sidewalks and materials for the same, containing and embracing the improvements secured to the plaintiff by her said Letters Patent of the United States, numbered 68,332, and the reissues thereof, manufactured and sold by them, and each of them, to others to be made, used or sold since the first day of November, 1881, according to the terms and provisions of the said license granted by the plaintiff, and dated November 24th, 1878, and it is hereby referred to Randolph B. Martine, Esq., counsellor at law, to take and state said account, and to ascertain, determine and report to this Court the amount due the plaintiff, with interest, by the defendants, and each of them, for royalties, for all

224

said illuminating work, manufactured and sold by them or either of them, since the first day of November, 1881, at the rate of thirty cents per square foot of said illuminating articles so manufactured and sold.

And it is further ordered and adjudged that on the coming in of said Referee's report, and the confirmation of the same, the plaintiff have judgement against the defendants for the amount found due to her, by the defendants, and each of them, together with the sum of six hundred and thirty two 32/100 dollars, the amount due the plaintiff from said defendants as royalties under the said license, dated November 25th, 1878, for the quarter ending November 1st, 1881, with interest thereon from the 1st day of November, 1881, besides the costs and disbursements of this action, and that the plaintiff have liberty to apply to this Court for such further order or judgments in this action as she may be advised.

A Copy.

THOMAS BOESE, Clerk.

225

SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT,

against

JOSHUA K. INGALLS and JACOB MARK.

Take notice that the defendants, Joshua K. Ingalls and Jacob Mark, appeal to the General Term of this Court from the judgment entered in this action in favor of the plaintiff against the defendants on the 26th day of April, 1883, and from each and every part of said judgment, excepting only such portion thereof as adjudges that the alleged license of the defendants granted by the plaintiff, dated the 24th day of November, 1878, be declared to be delivered up to the plaintiff to be cancelled.

NEW YORK, May 21, 1883.

Yours, &c.,
F. H. ANGIER,
Defendants' Attorney,
291 Broadway,
New York City.

To THOMAS BOESE, Clerk of the Superior Court of the City of New York,

And to GEORGE W. VAN SLYCK, Esq., Plaintiff's Attorney.

226

At a General Term of the Superior Court of the City of New York, held at the Court House, in the City of New York, on the 3d day of December, 1883.

Present:	Hon.	JOHN SEDGWICK,	Chief Judge.
	"	JOHN J. FREEDMAN	Associate Judges
	"	RICHARD O'GORMAN	Associate Judges

ELIZABETH A. L. HYATT,
Plaintiff and Respondent,

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants and Appellants.

The appeal from the interlocutory judgment entered in this action on the 26th day of April, 1883, in favor of the plaintiff and against the defendants, having been heard at a General Term of this Court, it is, on motion of Geo. W. Van Slyck, for the respondent,

Adjudged, that the said judgment be, and the same is hereby modified, as follows:

First.—By striking therefrom the injunction relief granted to the plaintiff.

Second.—By liming the time of the accounting by the defendants as described by said judgment to the time between November 1, 1881, and the date of the entry of said interlocutory judgment, and

Third.—It is adjudged that all the right, covenants and privileges as between the plaintiff and

227

the defendants, subsequent to the entry of the interlocutory judgment herein, under the license and agreements made the 21st day of November, 1878, and the 24th day of November, 1880, and mentioned in the complaint and findings of the Referee herein be and the same are hereby terminated and at an end, and the plaintiff and defendants herein are hereby enjoined and restrained from claiming or enforcing any rights thereunder each as against the other, subsequent to the entry of the interlocutory judgment herein, except in performance of the same as hereby modified.

And it is further adjudged, that the said interlocutory judgment of the Special Term as thus modified be and the same is hereby affirmed without costs to either part on this appeal.

A copy.

THOMAS BOESE, Clerk.

SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT,
Plaintiff and Respondent,

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants and Appellants.

The defendants in this action having appealed to the General Term of this Court from the interlocutory judgment entered herein on the 26th day of April, 1883, in favor of the plaintiff, and the said

228

Court having made and filed its decision and order thereon, modifying the said judgment, on motion of George W. Van Slyck, for the plaintiff, it is

Adjudged, that the said judgment be, and the same is hereby, modified as follows:

First.—By striking therefrom the injunction relief granted to the plaintiff.

Second.—By liming the time of the accounting by the defendants, as directed by said judgment, to the time between November 1st, 1881, and the date of the entry of said interlocutory judgment, and

Third.—It is adjudged that all the right, covenants and privileges as between the plaintiff and the defendants, subsequent to the entry of the interlocutory judgment herein, under the license and agreements made the 21st day of November, 1878, and the 24th day of November, 1880, and mentioned in the complaint and findings of the Referee herein, be and the same are hereby enjoined and restrained from claiming or enforcing any rights thereunder, each as against the other, subsequent to the entry of the interlocutory judgment herein, except in performance of the same as hereby modified,

And it is further adjudged that the same interlocutory judgment of the Special Term, as hereby modified, be, and the same is hereby affirmed, without costs to either part on this appeal.

A copy.

THOMAS BOESE, Clerk.

Files, Dec. 22d, 1883.

229

SUPERIOR COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT,
Plaintiff,

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants.

Proceedings Before Randolph B. Martine, Esq., Referee.

Parties appeared before the Referee.

GEORGE W. VAN SLYCK, Esq., counsel for plaintiff.

EDWARD D. MCCARTHY, Esq., counsel for defendants.

Defendants filed an account, of which the following is a copy:

"ACCOUNT."

When sold.	Where sent.	Sqr. feet.
Dec. 8, 1881	Heuvelman & Co., 569 Broadway, N.Y.,	1,010
Feby. 11, 1882	" ", Grand St., N.Y.,	210
May 30, 1882	Blake, McMahon & Co., Varick, W. Brd'wy & Franklin	1,054
June 17, 1882	S. J. Creswell. 4th and Chestnut St., Phila., Pa.,	528
Dec. 8, 1882	Saml. McCullough, Spring & Greene Sts., N.Y.,	624
Dec. 8, 1882	A. J. Campbell, Pearl and Dover St., N.Y.,	312

	3,728

230

City and County of New York, ss.:

JACOB MARK, being duly sworn, says that the foregoing statement is a true and correct account of all illuminating basement extension work made and sold by him and the firm of Ingalls & Mark between October thirty-first, 1881, and April 27, 1883, to the best of deponent's knowledge and belief.

JACOB MARK.

Sworn to before me this eighteenth
day of January, 1884.

O. W. BEALS,
Notary Public, N. Y. Co.

The plaintiff filed the following objections to said account:

"OBJECTIONS TO ACCOUNT."
SUPREME COURT

OF THE CITY OF NEW YORK.

ELIZABETH A. L. HYATT, Plaintiff,

against

JOSHUA K. INGALLS and JACOB MARK,
Defendants.

The plaintiff objects to the account filed by the defendants in addition to the objections theretofore presented to the Referee herein, and entered upon the record, and alleges that the defendant is chargeable with and should account and pay for under its license, the number of square feet of the following articles and materials which the defendant

231

was permitted to and did manufacture and sell under its license from the plaintiff.

First.—Work done for Aldridge estate on August 23d, 1882. Work done at 25 Murray street, for which received $325.

Second.—Work done for Aldrich estate, Oct. 4, 1882. Covering area 32 Warren street, contract price $290.

Third.—Work done for Aldrich estate, Nov. 24, 1882, at 27 Murray street. Covering area.

Fourth.—Work done for E. S. Church, Dec. 11th, 1882. Covering area for $1,930.

Fifth.—Work done for Aldrich estate, Dec. 11th, 1882. One pair doors 19 ft. 3 in.

Sixth.—Work done for Aldrich estate, Jan. 20th, 1883. Covering area at 27 Warren street; covering area at 23 Murray street; covering area at 17 Murray street.

Seventh.—Work done for J. B. Cochran, Sept. 1882. 2 tiles, 27 feet; 2 tiles, 10 ft. 3 in.

Eighth.—Work done for C. Vreeland, Aug. 4th, 1882. Covering area 20 W. 23d street, 184 feet.

Ninth.—Work done for C. Vreeland, Aug., 1882. Floor light at 793 Broadway.

Tenth.—Work done for C. Vreeland, Oct. 18th, 1882. One light for Fifth avenue, between Thirty-eighth and Thirty-ninth streets.

Eleventh.—Work done for C. Vreeland, December, 1882. 2 Tiles.

Twelfth.—Work done for C. Vreeland, Dec., 1882. Platform, Fifth avenue, between Thirty-eighth and Thirty-ninth streets, 76 feet.

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Thirteenth.—Work done for C. Vreeland, Dec. 1882. One vault light platform, 11 Vandewater street.

Fourteenth.—Work done for C. Vreeland, Jan. 1883. 2 Reg. Tiles, 18 feet, 8 inches.

Fifteenth.—Work done for C. Vreeland, March 18th, 1883. Vault light stoop, 42 and 44 Wooster street.

Sixteenth.—Work done for Cook & Radley, Aug. 1882. One platform concrete for Forty-third street and Ninth avenue, 225 feet.

Seventeenth.—Work done for Cook & Radley on February 13th, 1885.

Eighteenth.—Work done for Cook & Radley, Aug. 1882. Platform, Forty-first street and Third avenue, 86 feet.

Nineteenth.—Work done for Cook & Radley, Aug. 1882, for Fourteenth street, 53 feet and 8 inches.

Twentieth.—Work done for Cook & Radley, Sept. 11th, 1882. Glazing 174 feet, Sixty-first street and Third avenue.

Twenty-first.—Work done for Cook & Radley, Sept. 1882. 2 Platforms, 90 feet for Grand street.

Twenty-second.—Work done for Cook & Radley, Oct. 1882. 2 Steps, Forty-first street and Third avenue, 10 feet, 7 inches.

Twenty-third.—Work done for Cook & Radley, Oct. 1882. Glazing 44 feet, 6 inches, Sixty-ninth street and First avenue.

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Twenty-fourth.—Work done for Cook & Radley, Oct. 1882. 1 Tile, 7 feet, 4 inches.

Twenty-fifth.—Work done for Cook & Radley, Nov. 1882. Glazing Franklin street and 2 risers, 8 feet, 2 inches.

Twenty-sixth.—Work done for Cook & Radley, November 1882. Platform skylights, 37 E. Nineteenth street.

Twenty-seventh.—Work done for Cook & Radley, November 1882, work at 58 Spring street, eleven feet three inches.

Twenty-eighth.—Work done for Cook & Radley, November, 1882, platform lights, Franklin and West Broadway, 191 feet.

Twenty-ninth.—Work done for Cook & Radley, December 1882, glazing two inches lens tile.

Thirtieth.—Work done for Cook & Radley, December, 1882, platform Hubert and Greenwich streets, 140 feet.

Thirty-first.—Work done for Cook & Radley, December 1882, three stoops two inch lens, State street, 127 feet.

Thirty-second.—Work done for Cook & Radley, December 1882, glazing six risers, twenty-three feet eleven inches.

Thirty-third.—Work done for Cook & Radley, February 1883, two lights, Hubert and Greenwich streets, twenty-four feet nine inches.

Thirty-fourth.—Work done for E. G. Smyser, July 1882, glazing eight tiles and four risers, fifty-six feet six inches.

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Thirty-fifth.—Work done for E. G. Smyser, August 1882, eight tiles, fifty-three feet nine inches.

Thirty-sixth.—Work done for E. G. Smyser, September 1882, six lights, forty-two feet nine inches; seven risers, eighteen feet five inches; nineteen tiles, 130 feet 11 inches; in all 192 feet 1 inch.

Thirty-seventh.—Work done for E. G. Smyser, October 20th, 1882, making four tiles and three risers, in all twenty-one feet.

Thirty-eighth.—Work done for E. G. Smyser, November 1882, two tiles reg. lights, twenty-six feet five inches.

Thirty-ninth.—Work done for S. J. Creswell, July 1882, nine two-inch tiles, eighty-two feet six inches, for Philadelphia, Pa.

Fortieth.—Work done for S. J. Creswell, July 1882, fifteen reg. tiles, 104 feet 4 inches, shipped to Philadelphia, Pa.

Forty-first.—Work done for S. J. Creswell, July 1882. Two tiles 14 ft. 2 inches, Philadelphia, Pa.

Forty-second.—Work done for S. J. Creswell, Aug. 1882. 9 tiles 54 feet, 1 inch

Forth-third.—Work done for S. J. Creswell, Sept. 1882, 28 tiles 195 feet

Forty-fourth.—Work done for S. J. Creswell, Oct. 1882, 1 tile 12 feet, 9 inches.

Forty-fifth.—Work done for S. J. Creswell, Nov. 1882. 26 tiles 175 feet.

Forty-sixth.—Work done for S. J. Creswell, Feb. 1883. 8 tiles 66 ft. 10 inches.

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Forty-seventh.—Work done for A. J. Campbell, Aug. 1882. Job 36, 38 Barclay St., 61 feet.

Forty-eighth.—Work done for A. J. Campbell, Nov. 1882. Platform, O'Neill's, Sixth Ave.

Forty-ninth.—Work done for A. J. Campbell, Dec. 1882. Platform, Pearl & Dover streets, 379 feet, 4 inches.

Fiftieth.—Work done for A. J. Campbell, Dec. 1882, 5 tiles, 57 feet, 2 inches.

Fifty-first.—Work done for A. J. Campbell, Dec. 1882, platform, Thirty-sixth street and Third avenue.

Fifty-second.—Work done for Blake, McMahon & Co., August 1882. 1 Platform, 23 Great Jones St., 132 feet. 1 Platform, 18 University Pl., 88 feet.

Fifty-third.—Work done for Peter Dugro, Dec. 1882. Six tiles, (per contract).

Fifty-fourth.—Work done for G. S. Lincoln & Co., Sept. 1882. Glazing two reg. tiles, 13 ft. 10 in.

Fifty-fifth.—Work done for G. S. Lincoln & Co., Dec. 1882. Glazing 40 reg. tiles, 126 ft., 2 in.

Fifty-sixth.—Work done for Burnett & Co., Aug. 1882. Glazing 4 tiles, Twenty-ninth St., and Fifth Ave., 40 feet 9 inches.

Fifty-seventh.—Work done for Burnett & Co., Sept. 1882. Glazing 6 tiles, 30 feet 1 inch.

Fifty-eighth.—Work done for Burnett & Co., October 3d, 1882. Glazing steps, risers and tiles, 16 and 18 Greene street, 170 ft., 3 in.

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Fifty-ninth.—Work done for Burnett & Co., Oct. 5th, 1882. Glazing platform 628 Broadway, 193 dt., 9 inches.

Sixtieth.—Work done for Burnett & Co., Oct. 13th, 1882. Glazing, 16 and 18 Greene street, 71 feet. 8 inches.

Sixty-first.—Work done for Burnett & Co., Oct. 18, 1882. Glazing, 33 ft., 2 in., 16 Greene street.

Sixty-second.—Work done for Burnett & Co., Oct. 19th, 1882. Glazing 15 ft., 4 in., 16 and 18 Greene street.

Sixty-third.—Work done for Burnett & Co., Oct. 20th, 1882. Glazing 283 ft., 1 in., at 688 Broadway.

Sixty-fourth.—Work done for Burnett & Co., Nov. 1882. Glazing five reg. tile.

Sixty-fifth.—Work done for Burnett & Co., Nov. 1882. Platform, 628 Broadway, 263 foot.

Sixty-sixth.—Work done for Burnett & Co., Nov. 1882. Glazing 94 ft., 628 and 630 Broadway, New York City.

Sixty-seventh.—Work done for Burnett & Co., Dec. 1882. Tiles and steps, 136 ft., 7 in., (glazing).

Sixty-eighth.—Work done for Burnett & Co., Dec. 1882. Glazing 630 Broadway, 207 feet 10 inches.

Sixty-ninth.—Work done for Burnett & Co., Jan. 1885. Glazing 22 tile, 204 ft. 2 in.

Seventieth.—Work done for Burnett & Co., Feb. 1883. Glazing 5 tiles, 107 ft. 6 in.

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Seventy-first.—Work done for Burnett & Co., March 1883. Glazing 26 tiles, 231 ft. 10 in.

Seventy-second.—Work done for Burnett & Co., April 1883. Ten tiles; glazing 80 ft. 9 inches.

Seventy-third.—Work done for Wagner & Pfieff, July 1882. Glazing six tiles, 33 ft. 7 in.

Seventy-fourth.—Work done for Wagner & Pfieff, Aug. 1882. Glazing 10 feet 5 inches.

Seventy-fifth.—Work done for Wagner & Pfieff, Sept. 19, 1882. Glazing 66 feet 2 inches.

Seventy-sixth.—Work done for Royer Bros., Oct. 1882. Two floor lights, 4 lens, 96 feet 9 in. for Philadelphia, Pa.

Seventy-seventh.—Work done for Royer Bros., Nov. 10, 1882. Concrete light plates, 105 ft. 9 in., Philadelphia, Pa.

Seventy-eighth.—Work done for Royer Bros., Jan. 1883. Tiles and risers, 12 ft. 5 in.

Seventy-ninth.—Work done for E. L. Cook, Aug. 1882. Two platforms. Academy of Music, 105 feet 3 inches.

Eightieth.—Work done for E. L. Cook, Aug. 1st, 1882. Platform Sedgway Buildg, 60 feet 4 inches.

Eighty-first.—Work done for E. L. Cook, Sept. 1882. 14 piece tiles 2" lens, 342 ft. 9 in. 4 piece tiles, 2 in. glass, 32 feet.

Eighty-second.—Work done for E. L. Cook, Jan. 1883. Six vault lights, Adams & Moulton, 220 feet 6 in.

Eighty-third.—Work done for E. L. Cook, Feby. 1883. Three vault light platforms, 364 ft. 9 inches.

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Eighty-fourth.—Work done for E. L. Cook, March 1st, 1883. Two vault lights, 16 ft.

Eighty-fifth.—Work done for E. L. Cook, March 1883. 15 vault light platforms, Fitch Institute, 516 ft. 5 inches.

Eighty-sixth.—Work done for E. L. Cook, March 1883. 2 frames with E. K. tiles, 23 feet.

Eighty-seventh.—Work done for S. B. Ferdon, Feb. 18, 1882. Area 635 Broadway; done under contract for $235.

Eighty-eighth.—Work done for J. S. Stevens, July 13, 1882. Floor light for Philadelphia, Pa., 22 feet 7 inches.

Eighty-ninth.—Work done for J. S. Stevens, Nov. 1882. 4 tiles, 216 feet, 2 inches.

Ninetieth.—Work done for J. S. Stevens, February 1883. 8 pieces light, 40 ft. 7 in.

Ninety-first.—Work done for J. S. Stevens, March 1st, 1883. One tile, 5 feet.

Ninety-second.—Work done for Thos. H. Burns, Aug. 1882. 1 tiles, 2 in. lens; 9 feet, 8 in.

Ninety-third.—Work done for Thos. H. Burns, Jany. 1883. 6 tile, 2 in. lens; 34 ft. 6 in.

Ninety-fourth.—Work done for Thos. H. Burns, March 1883. Vault light platform, 122 feet 2 inches.

Ninety-fifth.—Work done for Edward Smith, June 1882. Door and frame.

Ninety-sixth.—Work done for Samuel McCullough, Oct. 1882. Two platforms at 245 and 247 Washington street; done under contract for $355.

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Ninety-seventh.—Work done for Samuel McCullough, Dec. 8, 1882. One platform for Greene and Spring streets.

Ninety-eighth.—Work done for the Dale Tile Co., Aug. 1882. Tiles and doors, 105 feet 9 inches.

Ninety-ninth.—Work done for the Dale Tile Co., Sept. 1882. Glazing, 90 ft. 7 in.

One hundredth.—Work done for the Dale Tile Co., Oct. 1882. Glazing 413 ft. 6 in.

One hundred and first.—Work done for the Dale Tile Co., Nov. 1882. Glazing, 495 ft. 1 in.

One hundred and second.—Work done for the Dale Tile Co., Dec. 1882. Glazing four risers, State street; 7 feet 11 inches.

One hundred and third.—Work done for Aug. A. Ball, April 1883. 1 platform.

One hundred and fourth.—Work done for Aug. A. Ball, July 1882. One 2 in. tile, 45 feet.

One hundred and fifth.—Work done for Robert Wilson, Aug. 1882. 13 Temple St., New Haven. (2 in. lens.) 2 pieces light, 23 ft 9 inch.)

One hundred and sixth.—Work done for Robert Wilson, Jan. 6, 1883. 65 reg. glass.

One hundred and seventh.—Work done Robert Wilson, March 1883. 1 vault light, 11 ft., 8 in.

One hundred and eighth.—Work done for Westing & Haffers, Aug. 1882. 1 concrete tile, 3 ft., 10 in.

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One hundred and ninth.—Work done for Westing & Haffers, Dec. 1882, 1 vault light, 18 feet.

One hundred and tenth.—Work done for James McKinney.

One hundred and eleventh.—Work done for Sanitary Mfg. Co., Aug. 1882, 12 plates, 185 feet.

One hundred and twelfth.—Work done for Tice & Jacobs, Sept. 1882, 5 tiles, 34 feet, 2 inches.

One hundred and thirteenth.—Work done for E. M. Gray & Co., Dec. 1882, six reg. tiles, 70 5/12 sq. feet.

JACOB MARK, sworn as a witness called by the plaintiff, testifies as follows:

Joshua K. Ingalls and myself were partners down to about May 1st, 1882. Since that time I have been carrying on the business alone. I have done the business. The books of the firm of Ingalls and Mark and now here. I don't know that Mr. Ingalls took away any of the books. After Mr. Ingalls went out of the business I used the same books.

My place of business is No. 5 Worth street. I have no other place of business, and this has been so from November, 1881, to April, 1883. I have a factory at No. 5 Worth street; my office and factory are at the same place. We manufacture bull's eye lights, illuminated gratings, roof lights, floor lights, area lights, vault lights, vault covers. That is about all. We deal in different things; some wrought iron work. That is what we manufacture. I have just enumerated wrought iron work we manufacture to a certain extent. We make some kind of gratings, railing, and anything that comes in

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the contract in our place, and if it is a large contract it is given out. Floor lights, area lights, illuminated gratings, basement extension, are all manufactured there; that is what I do. We do all of that kind of light work. Area light, roof, floor and sidewalk. It is all manufactured on my premises.

Q. For instance, take basement extension, what is that composed of?

A. The drawing is in that book, the printed case on appeal.

Q. What do you use in the construction of it?

A. In the basement extension, that is an iron girder.

Q. What do you use; the materials?

A. Cast iron.

Q. What else?

A. I suppose a cast iron post to hold up the girders. That we don't manufacture, of course. Then the light for it.

Q. What else is there used in the construction of it?

A. That is not all basements extension. It is constructed of a wrought iron girder and runs from wall to wall, and is generally put out from the curbstone. It is generally made of granite or blue stone. There is glass put in these area lights and basement extensions and illuminated gratings. It is partly of glass. We fit in all the glass. Most of the time we do not put them in their places; we do sometimes. In regard to the castings for work, they are not made on our premises; they are made by other parties.

Q. Then, what part of the illuminated grating or basement extension or area lights are manufactured on your premises?

A. We make the patterns, and we send them to the foundries—different foundries—and they make the casting. That is the cast iron, and then they come to our shop, where they put in the glass. That is the work we do. They send in the tiling, and we put in the glass for them. That is, the other manufacturers. In some of the work we do, where we get a

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contract, we have the castings made and buy the glass, and put the glass in, complete, ourselves; and, in other cases, there are people who send us the castings, and we simply put in the glass. And our books will, or ought to, show those instances where the whole article has been manufactured or constructed by us, and the contracts in which we only put in the glass, and this has been so during the times mentioned from Nov., 1881, to April, 1883. We have our frames cast in different places—at Campbell's, in Thirty-third street, west side; Cook & Radley, Thirty-seventh street; Ayres, in Forty-fifth street. We got some cast in Park street, and at Beihler's, and, sometimes, out of town. Our bookkeeper's name is Christie. I could not tell you exactly how long he has been with us. I guess we came some time last spring. I forgot exactly what month. I don't know his first name; I couldn't tell you. John, my son, used to keep part of the books when Mr. Ingalls was there. Mr. Ingalls kept them while there with John. I don't believe Christie came then. This only runs up to April. I don't know; I wouldn't be sure; may be he did come before April. During most, however, of the time mentioned, the books were kept by my sons John and Charlie. John prepared the account that was filed in this action. I examined it. I look through it. I have personal knowledge of all the work that has been done by me during the period mentioned from November, 1881, to April, 1883, especially basement extension. I could not remember all the work manufactured, in my head. I have had general charge of our business, and looked after it. I accept and make the contracts, and my two boys do it. Some contracts were made and accepted without my knowledge. I knew of it subsequently—some time after I took the contract, but

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at the time I filed this report, or the account here, I did not know of all the work constructed or manufactured. During the period from November, 1881, to April, 1883, every little small job I don't remember. I remember distinctly the basement extension; they generally come in large jobs. I took some means of informing myself as to the correctness of that account—whether it was all included. I looked through the books. I went specially to one building, and looked at it. That was on the corner of Spring, I believe, and Greenwich. I don't know who the owner is. We don't generally have much to do with the owner. Generally, with the iron man. The iron men were Fern and McCullough. I went to that one building, and examined it, and, after inspecting the that building, I made this account.

Q. When did you go to that building for the purpose of making this account?

A. What time? I don't know exactly whether it would come under the basement extension or not.

Q. As to that one building, did you decide that it did come under that?

A. Well, it came in order to do it; not exactly what Mr. Hyatt claimed. I put it in the account. All of the work that was done there. All the work that I considered basement extension. All the work that was done there is in the count. We have made illuminated gratings which we have not accounted for. I can, at the present time, give you one of those jobs that we have done of illuminated gratings. One in Church street runs from Chambers to Warren. That is a whole block. I took the contract direct from the owner.

Q. You have possession of the contract; was it in writing?

A. We give estimates; they keep it, and they say verbally: "You go ahead." That estimate is in our book, the substance of it in the copy book; I suppose I can find it. The name of the

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part is the Aldrich estate; the work we did there was for illuminated grating. It is made of glass and iron. There were frames cast, and they were sent to our shop, and we purchased the glass and had them put in. I laid them myself, or it was done under my supervision.

Q. Where were they put down with reference to the buildings?

A. Over the area. I did not include that particular contract in this account, because it did not come under the basement extension. If you will allow me to look at that book there, I can explain to you the difference. I have got to show you the drawing. As I told you before, the basement extension is an iron grating run across parallel with the line of the building four, five, six or seven feet out. There is nothing underneath. The basement continues from that right under the sidewalk. The area light is where a wall is built right down. The iron grating runs through a brick wall. That is an area light, and we have not taken a license under the area light, but under the basement extension. The difference which I have just mentioned I did not include in the account which has been filed. If the wall were built straight down to the bottom of the cellar, and the light only covered the area, I would call that an area light. While, if the basement ran straight out to the end of the walk without any wall under it, then I would call that a basement extension. That is the distinction I draw. The book shows for itself. There were many other contracts like that which I performed during the time mentioned, and have not accounted for, and which I omitted from the account for the reason just given. I don't know whether, prior to this litigation, I have rendered accounts which included work of this kind. I don't think we did. I don't remember, because I did not make out the accounts. Mr. Ingalls made some of them out, and John, my son, made some of them out. I knew that much. We never made any

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accounting for area light or vault light. Those lights have got a half a dozen names. I guess my books will show the number of square feet of these different contracts, and the prices I obtained for them.

Q. Did you do any work in Dover and Pearl streets in 1883?

A. Yes, sir. I do not know the owner. I guess the contract was with Andrew J. Campbell. It had the name of Mark cast on it. I think I have accounted for that. I can't tell how many feet I laid down there of work without the books. The books will show. I want to explain about that.

No doubt there has been a great many more feet. There are cast iron plates, not all illuminated grating. There are cast iron plates and ventilating plates, and cast iron end pieces, for vault covers, which makes a great many number of feet.

Q. Have you got the correct number of feet of illuminated grating set in?

A. I think so; the bookkeeper figured that up.

Q. Haven't you any knowledge?

A. Yes, sir, I suppose he figured up just as he goes along. This account was figured when he was notified. When I was making out my accounts. The bookkeeper did it, and I looked it over.

Q. Did you know whether it was accurate or not? Did you have any means of ascertaining any more than the bookkeeper told you?

A. What the books show. The books show only 123 feet; I guess that must be it. I believe we have put in some vault covers there since that time. I guess that was done this last spring. We did some work there, what it was I can't remember. I guess it was some vault cover, and some ventilator. There is always some work or another to do there. Some repair work. I did some work for a man by the name of E. G. Smyser. Within the period mentioned; November, 1881, and April, 1883. I have not accounted for that. I don't know where that

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work was laid. Single plates were made at No. 5 Worth street at my place, I furnished the glass and put in the plates, I furnished the plates and the glass, and fitted them in. I believe Mr. Smyser lives in York, Pennsylvania. We sent this work to Baltimore, and to York, some of it, what I saw. That was glass and iron illuminated grating. I don't know what was done with it after it was sent to him. I made it on an order of his and filled that order for illuminated grating and sent it to him. The number of square feet is in the book. The book will show. I know the firm of Cook & Radley, their place of business is in East Thirty-seventh street between 2d and 3d avenues. I would not be perfectly sure about the number; their business is iron foundry men.

Q. Do you know where this work was laid?

A. Cook & Radley, I could not tell that either. Sometimes the owner sent to get the plates and took them away again. We never ask where they go to.

Q. The question is, whether you know where the work was laid during the period you mentioned?

A. I do not. I do not believe the books show. Well, we do different style of work for them; six inch square glass and two inch square glass and some concrete light, the Dale patent.

Q. I mean from the period from November 1881, to April, 1883, any or all the orders which you executed for them or on their behalf?

A. I did not make all the frames. I did not lay all the work. They did it themselves. We laid out the work, that is, they sent the casting and we put the glass in. They furnished the casting. They have patterns alone, sometimes; and they sent them to me and I put in the glass, and they come and take them away again. They make the casting; in all cases; they always make them, so far as Cook & Radley is concerned. In all cases, during the periods mentioned, the castings were made by them and sent to me, and I got the glass and inserted it,

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and in some cases I laid them down. I can tell from my books and separate those which were laid down by them and those in which I only put in the glasses, and sent off. This work I did for Cook & Radley was illuminated grating, they call all the six inch square glass illuminated grating. These glasses have different measurements, they run from ten inches to an inch and 5/8ths. I mean by six inches that the surface diameter is six inches; some ten and some one inch. Here is one (producing.) When I speak of six inches, I take the diameter of the surface and not the thickness. They come about ¾ thick in six inch glass. That refers to the foot surface of the glass. Of these contracts of Cook & Radley, some were two inches, and some an inch and five eighths, and some six inches.

Q. Why didn't you account for any of these two inch glasses for instance, when you have made for Cook & Radley?

A. As I have stated before, none of that work came under the basement extension.

Q. Was it that, or because you had furnished it to other parties and had not constructed the frame work—Cook & Radley, I mean?

A. When we did not construct the frame, we did not account for it. The work where I have not constructed the frame work and have only inserted glasses, I claim I am not liable to account for and have not accounted for in all cases.

Q. We will take the Dale Tile Company—during the period mentioned, did you do any work for that company?

A. I did.

Q. You did considerable work, didn't you, during the time?

A. No.

Q. You did 2,251 square feet during the time?

A. I think I will have to look at the books to tell you; that work was illuminating grating. I did the glazing, that is all. Just furnished the glass and set it in; the frames were made by some one else. All the castings, iron work was done by somebody else and sent to me and I put in the glass

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and sent it back. They sent it and got it. I did not lay any of this work. That was not done by the Dale Tile Company; it was done by some iron men, I guess.

Q. The contract was between the tile company and the iron men direct?

A. I don't know anything about it; I was never told. I was paid by the Dale Tile Company for my work. I do not know where that work was laid. I do not know whether it was the city of New York. I might be looking at the book. My books would not show. These iron men don't state where the work goes. They sent the plates and come and get them, and don't state.

Q. It is marked to the Dale Tile Company. Do your books show where you delivered the material?

A. I don't think they do. We don't deliver anything. They send it, and when it is filled they take it away; this work was iron and glass; illuminated grating, and I have not accounted for that, because I didn't make the frame work.

Q. Now we will take the firm of Westing & Havers; do you know that firm?

A. Yes, sir. I did a small piece of work for them during the period; I think we did some work uptown, some small work; that was illuminated grating; I didn't account for that because it was not the basement extension; it was a simple area light; it was put down over an area; for that reason I did not account for it; I couldn't tell how much it was without looking at the books; I know S. J. Creswell; he lives at Philadelphia; he is in the iron business, I guess; we did work for him corner of Fourth and Chestnut streets; that is where the work was laid down; we laid it down; we made the frames and put in the glass; we did the whole thing; I guess it is accounted for; we did more work for them than 528 feet; we sold them some single plates; he ordered them; we furnished just the castings and the glass without putting them together. Besides

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the 528 feet, we furnished Creswell with the castings and with the glass; we didn't put the frames and tiles together. We put the glass in the plate. He made his own castings and put them together himself. We made 528 feet; we made a good deal of other material, what we call vault covers, and a good deal of illuminated grating, in which we simply put the glass. I have no knowledge of those facts except what my books show; I don't recollect anything about it personally.

Q. Your books show 1178 feet and 6 inches; you admit 528 feet. I want you to state what is the balance of the square feet; what kind of work it was; whether any of the balance was illuminated grating?

A. There were single plates. Whether they were used, I can't tell; some of the balance was illuminated grating. I don't know where this work was put down; I never did know.

Q. State again why it was that you did not account for more than 528 feet?

A. Because I have not constructed the basement extension on the other work; we only furnished him with the glass and plates. I mean by the plates the single plates. We furnished the plates and glass both; glazed plates.

Q. Now, A. J. Campbell, did you do any work for him during this period?

A. We did a little on the corner of Pearl and Dover streets. I did this summer another job for him. That was after the time. We got the contract for it last fall; not before April, 1883, I guess; I am not sure. The contract was made subsequent to April, 1883; it must have been in November, 1883. That does not refer to the contract corner of Dover and Pearl street; that was during the time mentioned. I do not know the firm of John Scheuer & Co. We never did business for them, as far as I know. I know all my customers, but I don't recollect that name.

Q. John B. Cochran, did you do any work for them, a small job?

A. I guess so; Pittsburgh, Pennsylvania; that was illuminated grating; single

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plates, vault covers, &c. I can't tell exactly what this particular thing was used for. We sold him vault covers and small plates which set in the sidewalk in the place of a vault cover. Sometimes a vault cover is square, octagon and hexagon. As to this particular contract I couldn't tell without looking at the books. The books show. I know C. Vreeland; he has a place on Broadway, between Thirty-sixth and Thirty-seventh streets; his business is iron railings. We sold him some area work, vault covers and roof lights we put up for him; and I think we put up some floor lights. I could not tell without looking at the books.

Q. P. Dugro; did you do any work for that estate?

A. Yes, sir. That was the same thing; we sold him some illuminated gratings, and some vault covers and some floor lights. We did not lay the work at all; I do not know who laid it not where it was laid.

Q. Do you know how much illuminated grating there was?

A. I will look at the books and find out. We did not furnish the frames and the glasses, only the plates and glass.

Q. What is the difference between the plates, as you use the term plates, and the frame?

A. The frame is made long, may be 8, 10 feet long, and the plate is set into it; the frame is the exterior, that covers the area. The frame is the border. Both the frame and the plate is made of iron, that is both cast; not in all cases. They might use wrought iron beams to lay the plates on instead of a frame. In this case of Dugro, we made the plates, that is all; furnished the glass and inserted it, put the glass in the plates. Where and how they were used, I don't know, I would have to go all over the country to find that out.

Q. The next name is G. S. Lincoln & Co. Do you know any such firm?

A. Yes, sir, they are at Hartford, Connecticut. Iron foundry men.

Q. What did you do for them during this period?

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A. Just simply furnished the glass; the plates were sent to us and we inserted them. They delivered them at the boat; I do not know how they were used. My books will show the amount.

Q. Do you know Burnett & Co.?

A. Yes, sir; they are in Twelfth street; iron foundrymen.

Q. What did you make for them?

A. Glazing. I put the glass in and they furnished the frames and plates; I furnished the glass and inserted it; they came after it. I could not tell you for sure where they were used. I do not know how they were used.

Q. Wagner & Pfeiff, do you know that firm?

A. Yes, sir, they are at 122 Eldridge street; wrought iron railing men.

Q. What did you furnish them with?

A. Simply put the glass in and nothing else. We furnished the glass and fitted it and they furnished the plates and frames. Where and what they were used for I can't tell you. It was tile, that is, ordinary plate. That is true of the other bill; the same way all the others.

Q. Joseph O'Brien, did you do anything for him; did you estimate on any work for Joseph O'Brien?

A. We might estimate, I don't know. I have no recollection.

Q. S. B. Althaus & Co.; what did you do for them?

A. We laid the work down complete for them. Area light we put down for them.

Q. During that period between November, 1881, and April, 1883?

A. I would have to look at the book. It was very little they did. They didn't do much. We made the casting and the frame and the plate and put in the glass and laid it down; I don't know now where we put it, my books will show.

Q. Next is Royer Bros?

A. Yes, sir, they are of Philadelphia. Iron men. We sold them single plates and the glass. We made the plates for them and glass; we did not furnish the frame

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work, the borders. I can't tell you how many feet without looking at the book. I do not know where it was laid and have no information on that subject.

Q. J. B. Snook, what is that; small, eight feet?

A. That is simply vault covers.

Q. E. L. Cook, who is he?

A. Man in Buffalo. His business is plumber; we sold him illuminated grating; we furnished frames and plates and glass; we constructed the whole thing, and in some places we put it down; that is during the period mentioned. I do not know the number of feet.

Q. T. B. Furdon, who is he?

A. A man up in Thirty-first street; we did the same thing for him, furnished it complete, put it down; we put one down, that is prior to April, we put in some plates I think, in Chambers street, for him. I think that was last fall; the books show.

Q. J. S. Stevens, who is he?

A. He is an iron man in Philadelphia; we sent nothing but plates to him; the plates and the glass, we put in the glass, fitted them, and made the plates. I don't know nothing about where it was laid down; how many feet we put down, the books will show.

Q. Ford and Stewart, do you know them?

A. Yes, sir; went to Oneonta, New York; we laid that work complete; an area covering; we furnished the frame work and plates; the same work is basement extension.

Q. N. T. Ford?

A. That is one thing, the Fords and a brother-in-law built one block there, and in each building they put a strip of light.

Q. T. Willihan?

A. I guess that is the owner. I think that is in Binghampton.

Q. What did you do for him?

A. We laid them down; an area covering composed of glass; we call it area covering; our books show how much.

Q. L. E. Ireland?

A. Those are two brothers, and two brothers in law; we furnished all the work;

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the same as the other; he lives in Oneonta; we furnished everything to him, plate and glass, and laid it down ourselves; I went there myself.

Q. E. Conkling?

A. That is Binghampton. I guess he is the owner; we made an area light for him, and furnished everything; I was there several times; I don't know whether I was there, when that was put in.

Q. Erlbacher and Davis, what are they?

A. I think they are plumbers; they live in Buffalo; we furnished everything, frame, plate and glass; I saw the work that was laid down; and also the other Buffalo man, Cook. I saw most of Cook; I was not there all the time. I don't think the books show the number of the street. Erlbacher and Davis, we sent it there. Cook laid some, and some we laid.

Q. J. B. & J. M. Cornell, who are they?

A. In Centre street, iron men.

Q. What did you do for them?

A. They are co-licensees; they furnish all the casings, and they are sent to the shop and we glazed it. For Cornell we do quite a lot. We don't have anything to do with the laying it down; Cornell paid all his own royalty; only on one job we laid the work, in Broadway, 601, I think; that was done after April; we did not lay work for Cornell, before then. I am sure of that. John Curry is an iron man, I think, up in Fifty-fourth street; we sold vault covers to him, and we made illuminated grating for the roof. Nothing went into the floor as I know of; we made a little roof for him once.

Q. Thomas A. Burns; what is his business?

A. He is in Newark; iron business, we sold plates to him. That is about all. When I say plates, I mean the plates and glass that is put in. We did everything but give him the frames. I do not know where they were put down. It was illuminated grating.

Q. Johnson & Brother?

A. Well, we did simply

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the glazing, they furnished their own frames. They are iron men, they furnished their own plates and we furnished the glass and inserted it for them.

Q. Cheney & Hewlett, who are they?

A. Iron men; they have an office in New York; their place of business is in Greenpoint. I haven't done anything for them during the period mentioned, I am sure of it, because we don't do any of their work except once in a while they buy a lot of plates.

Q. I call your attention to an item of 63 feet 6 inches which appears in your books?

A. That is done for the Dale Tile Co. We don't enter the Dale Tile Co.'s name. It may be put in the book, done for Cheney & Hewlett.

Q. Does your book contain the item of one entry of a charge of Cheney & Hewlett, for 63 feet, and six inches?

A. I have to look at the book before I can say that. My recollection is that we never did anything for Cheney & Hewlett. I will look at my book and see.

Q. Mallon & Rourke, have you done work for them?

A. Yes, sir. They are iron men, I believe in John street. We did glazing for them. They furnished their own castings, we furnished the glass and inserted it. I don't know when it was laid. It was illuminated grating.

Q. W. J. and C. C. Alexander, where are they?

A. Iron men, in York street now. I put illuminated grating over the Peoples' Bank in Canal street for them; we put a stoop up; that is all I remember. They don't do much of that kind of work. We made illuminated grating for them, but that was for the roof. I furnished the frames and all in the bank; to go into the bank; we put up steps. There is an open area all around it, and it was grating step that came out, and steps set in place of the area, all open all around. Nothing to do with the basement extension or area light. There has been illuminated grating put down there on those steps, I guess. I furnished it up complete. I couldn't tell how many feet, the books will show.

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Q. Swenson, Skinner & Co., who are they?

A. They are stove men, in Port Jervis, we furnished them illuminated gratings, are coverings. I was there to see it; we furnished the whole thing. Edward Smith is a man in Newark; we sold him some plates and glasses, my books will show how much, I don't know what became of them; we delivered them on board the boat.

Q. F. Handy, who is he?

A. I couldn't think of his name just now; who he is or where he is.

Q. Is he an iron man?

A. I guess not. If he was I would know it.

Q. 109 feet he is charged?

A. I don't know any parties by the name of Handy.

Q. Furman & Howell, who are they?

A. I will have to look at the book for that, I don't remember the names; I don't know who they are.

Q. French, do you remember him?

A. French manufactures vault lights; we did not do any work for him. I sold him some glass.

Q. H. Otterben, do you know him?

A. I don't remember him. I can't tell anything about that. Some men come in and buy second hand lights. Sometimes we take them out of a building; we measure so many feet and sell it to them.

Q. William Burns?

A. I can't remember him. I don't remember anything about it.

Q. Samuel McCullough?

A. That is the Samuel McCullough that succeeds Fern & McCullough. I did some work for him, corner of Spring and Greenwich. I guess that is accounted for.

Q. Augustus A. Ball; who is he?

A. A man in new Haven; iron man. Well, generally he gets small vault covers, and small square vault plates.

Q. Did you do any illuminating grating for him during the period mentioned?

A. That is all illuminating grating, vault covers are. Sometimes they got eighteen or twenty inch square plates to sit into the vault. I never sold him anything for area covering that I know of.

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Q. Robert Wilson?

A. Same kind of business at New Haven. I sold him vault covers; some of these square plates to sit in vaults.

Q. James McKinney?

A. That is an Albany iron man. Floor lights, we did for him. That is inside of the building; that is my best recollection. I couldn't tell you whether it was between the times specified; we put down a floor light, it was illuminated grating but put in the interior of a house.

Q. The Sanitary Manufacturing Company?

A. They buy just about the same things as Robert Wilson. We never sell them any frames or tiling, except vault covers. They are New Haven men.

Q. Tice and Jacobs?

A. They are manufacturers.

Q. What did you do for them; 586 square feet here?

A. That is a mistake, I guess.

Q. Do you remember, during the time specified, what you did for them?

A. Not as I remember.

Q. E. N. Gray & Co.?

A. That is a man in Georgetown. They are iron men, all they got was vault covers, all vault covers on sidewalks.

Q. C. A. Snyder & Sons?

A. They are Washington men. We furnished them plates and glass together; I do not know how they used them; I didn't furnish the frame work.

Q. William T. Day?

A. He is in Third street, New York City; iron man.

Q. What did you do for him?

A. We covered an area for him. I think it is in William street or Nassau street; somewheres around there. I can be able to state specifically from the book. We furnished all the material and construction, put it down, and did the construction.

Q. John Howard, who is he?

A. I don't know anything about him.

Q. Do you know Isaac E. Wright, and where does he live?

A. I don't know him. I never did any work for him so far as I know.

Q. Mr. Pennycuick, do you know him?

A. Yes, he is a man who has a patent on the long

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tailed light. Mr. Pennycuick furnished the glass and I furnished the casting. Patent glass that there was a long tail on. I could not tell how many feet; I will have to look at the book. I do not know where it was used; they were shipped on his order.

Q. Fearnbach, who is he?

A. An architect. We got the job in his office. It was done in Spring street, for some man there. We charged our bill to Fearnbach. It was done in Fearnbach's name. The job was done in Spring street, between Broadway and Mercer; it was an old building. The light was laid in the sidewalk in the area. We furnished both plates and glass; we furnished the whole thing. I do not know how many feet; my books will show that; that is, I guess they will. Sometimes we don't keep the number of feet when it is contract work.

Q. What was the shape of the frame, square or oblong?

A. That was not a square area, it generally runs the length of the building, four feet out and two feet out, whatever the area may be.

Q. These questions are all in reference to work done between November 1st, 1881, and April 25th, 1883; did you, during this time furnish other work for Fearnbach besides the Spring street job?

A. No.

Q. E. S. Vaughn & Son, do you know such a firm?

A. Yes; I believe their office is down in Maiden Lane. We put in some plates for them in Broadway. They are builders in one sense of the word; they do all kinds of work. We laid the work for them in Broadway, somewheres between Nineteenth and Twentieth streets. How much we did for them I couldn't tell you without looking at the books. That was a 2 inch glass, and was area work; put on the area of the building; that is all one style of work. That is made out of plates of iron, and glass inserted in the plates. We made and furnished the frames and the glass for the

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whole job. They are laid right next to the building, between the building and the sidewalk; that is true of my testimony generally when I speak of area work. I can't give the number of feet. I know Father Drumgoole; we did work for him; I put a staircase in the interior. It was outside; there was a stair outside and we put a roof over it.

Q. James Kearney?

A. I know him; I can't recollect that we did anything for him.

Q. Did you do anything for James Kearney during the time mentioned?

A. I could not recollect.

Q. Do you know Dives, Pomeroy & Stewart?

A. Pomeroy & Stewart you had once before; that was in Oneonta.

Q. Ford amp; Stewart I asked you about before, but this is Dives, Pomeroy & Stewart?

A. I know Pomeroy & Stewart; we did the same thing as the other; we made an area for them, we made the whole thing and furnished it; area light; the amount I can't tell, now.

Q. James Kelsey?

A. I don't know anybody by that name.

Q. T. S. Crowson?

A. That is a plate glass man; we bought some glass of him.

Q. George Morer, do you know him?

A. No, sir.

Q. R. H. Macy & Co., who are they?

a. Dry goods people, Sixth avenue and Fourteenth street; we covered an area; we furnished the plates and the glass; the amount is about 163 feet; that is about right; I would not be certain as to it; we furnished them, directly.

Q. Thomas M. Mettam?

A. We did some work on the Peoples' Bank; that was neither an area or anything else; it was all open steps; it is a riser; it is made the same as area work, except it is put in steps; that is the only difference.

Q. Deering & Johnson?

A. I cannot remember them.

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Q. H. J. Walsh?

A. I don't recollect him.

Q. Metcalf & Luther, did you do anything for them?

A. No; sometimes men come in and buy a vault cover, and buy what we call second-hand tiling.

Q. Anderson & Porter?

A. I recollect them; I don't remember where they are; I think we did some work for them.

Q. Did you do any work for Ingalls, after you dissolved?

A. No; I did one repair job for him, that is, through young Ingalls, in the Metropolitan Bank; that is, no light furnished, at all, only repairing; I didn't furnish any new plates; we didn't account for repairs when we had the license; we never accounted for repairs.

Q. Scharm, who is he?

A. He lives in Third avenue, between Seventy-second and Seventy-third streets; I don't know whether he is the owner of the building; I furnished work for him; his business is stoves, tin-ware, railing, &c.; he occupied part of the building; he ordered of me, and I furnished both plates and the glass; it must have been about 70 or 80 feet.

Q. It is 112 feet, here, from your book?

A. Well, I don't remember.

Q. W. H. Baldwin?

A. Yes; we furnished roof light for Baldwin in Washington.

Q. Matzinger Bros.?

A. Philadelphia parties. Iron men. We must have done very little for them. I think some old plates and glass we sold to them. I do not know where they used it.

Q. What do you mean by old plate?

A. These parties when they make an alteration on a building, outside parties send on and want to know if we have any old plates, second-hand plates on hand. Of course they get them so much cheaper. We do not furnish the glass new in these; in this case I can't tell, it was so small. I can't say one way or the other.

Q. J. R. Platt, do you know such a man?

A. No.

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Q. Do you know Dusenbury?

A. I know a Mr. Dusenbury here. We furnished no new work for him. We did repair work.

Q. A. J. Crandall, what did you do for him?

A. We did some work, glass and iron, area work. He was in Binghampton, an owner. The amount of the area work was near 200 feet.

Q. John B. Racer, do you know him?

A. I don't remember him.

Q. A. B. & W. T. Westervelt, do you know them?

A. Yes; that is a party, corner of Chambers and Church street, they are stable fixers, railing and all kinds of iron statues. We didn't lay this work at all. They came to our office and bought the plates; we furnished the glass and the plates; they got them themselves; what they did with them, I don't know. I do not know what sizes they were; I can't tell except by looking at the book, at the order. I can't give the number of feet for Westervelt; I don't remember.

Q. A. B. D. Beaver, who is he?

A. I don't remember him.

Q. W. M. Newer, do you know him?

A. Newer is a man in Williamsburg. I did not furnish anything during this time to him. I don't think the name is right. It is somebody with that sort of a name we did some work for. I sent out a small piece of work. That went to Reading, Pennsylvania. That was the regular plate and glass used for area work, I think.

Q. A. M. Brown, do you know him?

A. I don't remember him.

Q. R. Potter & Co.?

A. No; I recollect a Mr. Potter, the one that owns the Potter building in Park Row.

Q. Did you do any work for Potter during this time?

A. Yes, we did all old work. A party out of town put it in. I think it was before 1881.

Q. D. S. Ayres?

A. He is an iron man, keeps near corner of tenth avenue and fifty-fifth street.

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He furnished his own castings as much as I can remember. We never laid any that I remember. We did the glazing, inserted the glass; he furnished the plates, that is my best recollection.

Q. Was this area work?

A. I don't know. I don't know where they laid it.

Q. Was it adapted for basement extension or area work?

A. I don't know. This kind of work is used for different purposes.

Q. Did you do any work for Lindsay, Graff & Co. during this time?

A. I don't know what we did. They make their work themselves. As to all this that I have testified, it is liable to be changed by my books.

Q. What is the difference between your order book and your new ledger?

A. I don't know anything about it. The bookkeeper will know.

Q. Do you mean to say that you don't know the difference between your order book and your new ledger kept by you?

A. I don't know what you mean by the new ledger.

Q. Haven't you a book called the ledger?

A. Yes, sir.

Q. Where is the ledger for 1881 that has the entries from November, 1881 to April 23, 1883?

A. The order book has that.

Q. Haven't you got another book called the new ledger, which contains entries of work done by you?

A. It goes in the order book first.

Q. (Repeated).

A. We have a ledger which contains the items from November, 1881, to April 23, 1883. I have only the order book here.

Q. Are there not entries in the ledger that are not in the order book, and entries in the order book that are not in the ledger?

A. I am not familiar with my books.

Q. Do you ever examine them?

A. I do. I can look over the accounts, you know. The bookkeeper, Mr. Christie, has had charge of our books. What his first name is, is more than I know.

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Q. Is there any one else connected with your business who is familiar with your books, besides Mr. Christie?

A. My son John. Mr. Christie has been in my employ, I guess nearly two years, about that. My son, John, was there before Mr. Christie, as bookkeeper.

Q. Did you have any other bookkeeper besides John, before Mr. Christie came?

A. Only Mr. Ingalls.

Q. Then, the men familiar with your books are your son and Mr. Christie?

A. Yes, sir.

Q. Did you do some work for the Aldrich estate?

A. Yes.

Q. When did the bookkeeper come?

A. I think two years this coming spring; about a year and a half ago; my son, John, is in the city now.

Q. Turn to the Aldrich estate, 1882, whichever book you may find it in, and state what work was done by you, commencing with August 23, 1882?

A. It is in the new ledger. I thought I had everything in the order book. I see it is not in here.

Q. Do you know whether all the work you did was entered into your order book?

A. I don't know; I can't tell now.

Plaintiff's Counsel—I want you to produce the new ledger for the times for which you are accounting, the order book, the book which contains your contracts or estimates, and the letter book.

Q. Give us the orders you received from the Aldrich estate, 25 Murray street, August 23, 1882.

A. (Witness examining book.) I cannot tell you. That was contract work.

Q. Will the contract show how many feet?

A. No, sir; the contract does not show. Our estimates simply give it, and the figures are simply put on a piece of paper. We did it for $325. We got two dollars, fifty, sixty or seventy cents a foot for it. There was a hundred feet at least; I suppose, I don't know. How long and how wide these tiles were I cannot tell you. I suppose it was 25

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foot front, I do not know. I have seen the work; I have not measured it. I have no personal knowledge of the number of feet there. It is an area, on the front of the building, 25 Murray Street.

Q. The Aldrich estate; you did the work for them?

A. Yes; that is so of all the work I did for that estate; furnished the glass and plates; did the glazing.

Q. What was the size of the glass?

A. An inch and five-eighths. I do not know the size of the plates, the books don't show, I have nothing on my books or papers to show; the price won't show; I guess I have my estimates; they won't show the number of feet on this building, we have nothing to show the number of feet; only to measure the building.

Q. October 4th; state what it is?

A. Covering an area, 32 Warren street, as per agreement, $290. I do not know how many feet I put down; I can't find out except by measuring. I furnished the iron and plates the same as the other; the size of the glass was the same; it was put down in the front area.

Q. Now, November 24th, 1882?

A. I have it November 10th, 27 Murray street.

Q. How many feet?

A. That is as per agreement. I do not know how many feet; it was the Hyatt knob light, the same as the other; it was in the area, the front part of the building, the same as the other. The size of the glass was the same as the other, an inch and five-eighths.

Q. Next, December 11th, covering an area, E. S. Church, from Warren to Chambers?

A. That is right. I can't tell how many feet. We got $1,930. I do not know how much we got a foot. That work is contract work. My books do not show how much we got per foot for our work.

Q. Don't you make your price, base it on the price per square foot?

A. Yes, sir; we do.

Q. Isn't that your invariable custom?

A. We figure it out and count it so much a foot.

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Q. That is your practice, to figure so much a foot?

A. Yes, sir.

Q. Don't your books show?

A. We don't put it in the books, we put it on a piece of paper, an estimate. That work was done on the Church street side. That was the area. I do not know the size of any of the tile. I don't know the size of the tile of the other work for the Aldrich estate. The size of the glass was an inch and five-eighths.

Q. Also that day, one pair of doors, 19 feet, 3 inches?

A. That is a patent that belongs to Tice & Jacobs.

Q. January 20, 1883, covering an area, 27 Warren street?

A. Yes; also 23 Murray street, covering an area, and 17 Murray street, also covering an area.

Q. Have you got those three there?

A. Yes, sir.

Q. All this work was laid by you?

A. Let me see about 17 Murray street. I do not know how many feet I did there, this work was put down at those places in the area on the fronts, the size of the glass was the same, all the same for the Aldrich estate, all knob light.

Q. What the trade called the Hyatt Knob Light?

A. Some call it bull's eye; some illuminated light, some knob light; half a dozen names for it.

Q. Turn to John B. Cochrane, September, 1882?

A. July 1, 1882, two tiles. That is all it is; two tiles, regular tiles. Four pieces of regular tile 10½ feet by 2 feet 10 1/8. 10¼ square feet. Another one 27 feet. Two area tile, template tile, irregular tile, 27 square feet. We only furnished the plates and glass, we didn't lay it; the size of the glass was 1 5/8 inches. Where it was laid, I don't know.

Q. Who was Cochrane?

A. A man in Pittsburgh, I do not know what part of the premises it was laid. I never made any inquiry; this was knob light; the knob light was used for vault covers, area covers, and I put up a roof the other day with

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knob lights, several of them. I put knobs on top of the roof; I did it because they called for it; I don't know.

Q. So people can walk over them, if they please?

A. he knobs don't have anything to do with the people walking over them, the object of putting knobs on it to protect the glass.

Q. Is it to protect the glass against weight?

A. I don't know. It was put on because it was asked for. It does protect the glass against weight in some cases but not always; a great many people object to the knobs now. When they do put down the knobs I don't know what they use them for; what the object is in putting knobs on is more than I can tell you. I don't know to protect people from slipping; to protect them from slipping when walking, I suppose.

Q. Now, C. Vreeland, August, 1882?

A. Yes; August 4th.

Q. Covering an area, No. 20 West 23d street; how many feet?

A. One skylight; one area. I can't tell how many feet. That was a large skylight; a bull's eye skylight. I can't tell how many feet. The entry is 184 feet, that is altogether, I guess.

Q. I thought you said you couldn't tell the whole number of feet?

A. I mean the area. That is by contract.

Q. It says 184 feet, doesn't it? Give the dimensions of the area and the dimensions of the skylight?

A. Skylight 18 by 26; the area is 24 feet by 6; 2 inch glass, knob lights. One part went into the rear of the building, one story high. The area cover went on the front of the building; in the sidewalk in front of the premises. We did the whole of it; laid it down and all.

Q. Now, August, floor light, 792 Broadway?

A. Yes; one floor light, 4 inch cement light, 793 Broadway? The Dale patent. That is a floor light inside the building.

Q. October 18, one light, Fifth avenue, between

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Thirty-eighth and Thirty-ninth streets, what is that?

A. One skylight in the rear of the building, the other end of the lot; it was put on the outside of the building, in the rear, the same as a skylight. I think that is the same, 2 inch glass. I don't say how many feet; it is per contract. We did all the work.

Q. December, two regulation tile?

A. Yes, December 6th, two regular tiles, 4 feet three and three quarters by 2 feet two. Two plates.

Q. What size?

A. An inch and five eighths.

Q. More on that day; 76 feet?

A. Yes, concrete platform, building at Fifth avenue between Thirty-eighth and Thirty-ninth streets. 12 feet by 6 feet 4; 76 square feet. I did not do the glazing on that job. We laid the frames, not the glass. The Dale Tile Company did that.

Q. Same month; one vault-light platform, 11 Vandewater street?

A. One vault-light platform, yes. Stoops, 11 Vandewater street as per contract. An inch and five-eighths glass or two inch glass on the front of the building; on the sidewalk.

Q. January 1883, two regular tiles 18 feet 8 inches?

A. I have got January 18th, one regular tile 4 feet 3¾ by 2 feet 2. Another regular tile 4 feet 3¾ by 2 feet 2. I do not know where these tiles were put down. I cannot tell you if we furnished the castings or not. We did the glazing. An inch and five eights glass. No, take that back. I don't know if it is two inch glass or regulation glass. It is either one or the other.

Q. March 18, 1883, vault light, stoop, 42 and 44 Wooster street; how much did you get a foot for that?

A. As per agreement; I don't know how much it was per foot; two inch glass; it don't say how many feet; I can't tell; it was put down over the front of the building, right over the boiler on the sidewalk.

Q. You speak of regular tiles; what are they?

A. Heavy tiles are what they call regular tiles.

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Q. What are light tiles?

A. Anything that come light in the glass or light in the iron.

Q. What is a heavy tile?

A. It is from 7/8 to 1 inch thick; the Dale patent is 1½ inch thick; 6 inch glass is light, and we make a heavy 5 and 6 inch glass.

Q. Turn to Cook & Radley, February 18, 1883, and August, 1882?

A. Yes, sir; one platform, concrete, 43d street and 9th avenue, 225 feet. They are iron men; I did the work for them; they furnished the castings, we put them down; concrete light; I can't tell whether that is two or three inch; that is the Dale patent.

Q. And the patent consist of concrete?

A. I don't know what it consists of; nobody can do it but them; these were put on the front of the building; not in the sidewalk; over the area; I had this contract with Cook & Radley; there was a platform for Forty-first street and Third avenue, 86 square feet; we laid that; furnished the glass and the iron. The size of the glass was two inch; this was put down over the area in the front of the building.

Q. One platform, Steinway; 53 feet 8?

A. Yes, in Fourteenth street; that was concrete light; we laid the iron; the glass was put in by the Dale Tile Company; the Dale Tile Company put in the glass in the Forty-third street and Ninth avenue job; that is the Dale patent; sometimes we do it, but we have to give accounts to them; what I mean is, all this concrete is the Dale Tile Company's; sometimes I get the glass and cement from them if they can't send a man by the time I want it; it is their business to do it.

Q. September, glazing; Sixty-first street and Third avenue, 174 feet?

A. Yes; September 11, that is right; we didn't do anything; the Dale Tile Company glazed that.

Q. Why do you enter it in your books?

A. We charge Cook & Radley with the glazing, Cook &

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Radley give us the order, and we turn it over to the Dale Tile Company because we can't do the concrete work; we charged Cook & Radley for the glazing, and we paid the Dale Tile Company.

Q. Why do you say that is concrete; is there any such entry on your book?

A. Yes; it says 2 inch concrete.

Q. Now, the next one is one tile?

A. This work they laid themselves. That sixty-first street and Third avenue job; the Dale Tile Company only did the glazing; we did nothing to it.

Q. Now, two platforms, same month, 90 feet?

A. One area platform, twenty-three feet by four feet and a half, and one six feet three by one foot five and three quarters; we did the whole thing; we laid it down; in Grand street.

Q. What part of the premises were they put down?

A. I do not remember about this job, and I can't state.

Q. October, two steps, Forty-first street and Third avenue?

A. Yes, three feet two by one foot eight; what I did there is more than I can tell you; it says 1.30; it must be glazing; I am not sure.

Q. Did you do anything to it?

A. I don't know; I must have done something; I can't tell whether I furnished the plates or th glass; I do not know what part of the premises they were put down.

Q. Glazing, Sixty-ninth street and First avenue, 44 feet and six inches?

A. That is glazing, the same as the others; they laid their own work and castings, and we furnished the glass; the size of the glass I can't tell; and the part of the premises they were put down I can't tell; I don't know whether on the front area or not.

Q. October, one tile, seven feet and four inches?

A. Yes; where that was put down I can't tell; I put the glass in; I did not make the tile; the size of the glass is, I guess, two inch.

Q. November, glazing at Franklin street?

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A. Glazing one riser for Franklin street; we furnished the glass—four feet eleven by seven inches; two and five-sixteenths feet; where they were put I don't know; the size of the glass I can't tell.

Q. What are risers?

A. Uprights.

Q. What are uprights?

A. It makes a step, generally.

Q. Platform skylights, November, 37 East Nineteenth street?

A. Roof lights; I can't tell what they are; one platform and one skylight; we put them up; we did all the work, both roof lights and platform; we put the platform on the front area; and the lights on the rear of the building; over the first story; I don't know if my books show the number of feet.

Q. That was done by contract?

A. I can't tell; it don't say; it says $960; I can't tell how much a foot we got for that.

Q. Did you get over $2 a foot for it?

A. I don't know.

Q. Do you usually get over $2 a foot?

A. I don't know as I should answer than question.

Q. Did you get over $2 a foot for this job?

A. I can't tell.

Q. Did you ever charge over $3 a foot for platform?

A. I can't tell.

Q. Which is the price larger for, platform or roof lights?

A. Sometimes both are alike; sometimes a rear light is more than a front light.

Q. What is it usually?

A. That I can't tell you.

Q. Do you mean to say you don't know whether you get more, as a rule, for platform than you do for roof lights?

A. It all depends on what they are.

Q. As a rule?

A. Of course, we do; we don't get more money; we do more work.

Q. Don't you get more per foot for the platform work?

A. In some cases; that depends on how the work was constructed.

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Q. I ask as a rule?

A. I cannot tell.

Q. Can't you answer? Do you mean to say you don't know as a rule whether you get more for platform than roof lights?

A. Well, it depends upon the construction of the work.

Q. I take that into consideration. Considering that, don't you get more as a rule for platform work than roof lights?

A. Yes, sir.

Q. Which is the heavier work as a rule, platform or roof light?

A. As a rule, platform.

Q. Consequently, more expensive?

A. Sometimes; sometimes roof light costs a great deal more than platforms.

Q. When the platform work is heavier than the roof light, doesn't it cost more?

A. Yes, sir, when it is heavier.

Q. November, 58 Spring street, 11 feet, 3 inches?

A. We laid that and did all the work; the size of the glass I can't tell; the tile was put down in the front area.

Q. Now, November, Franklin and West Broadway platform lights, 191 feet?

A. We did the same thing then. Platform over an area, 194 square feet; that is, risers and platform together; I can't tell you about the platform; this is, altogether. Risers are steps that lead into the building; the platform is put over the area; we did all that work.

Q. What was the size of the glass?

A. Two inch glass.

Q. December, glazing two inch lens tile?

A. Yes, we furnished the glass there; lens tile; that is, knob light; it means not the round knob light; it is a knob of my own patent; mine and my partners; where that was laid down I don't know; I don't know whether it is area or not.

Q. Platform, same month, Hubert and Greenwich streets, 140 square feet?

A. Yes, sir, three inch concrete glass. We furnished the castings; concrete lens.

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Q. Was that done by you or the Dale Tile Company?

A. I can't tell, we charged for it; it was put down over the front area; the size of the glass was three inch.

Q. Three stoops, two inch lens, State street, 128 square feet?

A. Yes, two inch glass concrete work.

Q. Did you do all of it?

A. I can't tell; we did some of it; it was put down in the front area.

Q. Glazing six risers, 23 feet, 11 inches?

A. I don't know where that went; we simply furnished the glass; I don't know what size; we simply made it and delivered it to them, and never inquired how it was used.

Q. February, 1883, glazing at Fulton and Cliff streets, 58 feet, 8 inches?

A. yes, we did the glazing there; we did not put it down; the size of the glass it don't say.

Q. Do you know what part of the premises it was put down?

A. I can't tell that either.

Q. There are two lights at Hubert and Greenwich streets, February, 1883, 24 feet 9 inches?

A. Yes, sir; that is concrete light; my books states it.

Q. Was not that a vault light?

A. I can not tell.

Q. Where was it down down; what part of the premises?

A. That I can not tell, now.

Q. Turn to E. G. Smyser, July, 1882?

A. Yes, sir; 8 tiles and 4 risers, 50 feet, 6 inches; we furnished the plates and the glass; we did the glazing; we did not put them down; Smyser is an iron man; I can't tell where they were put down; we made them and delivered them to him; he has an office in York, Pennsylvania, and in Baltimore. That went out of the city; I never knew anything about them after that.

Q. August, 8 tiles, 53 feet, 9 inches?

A. I have got two pieces, August 3d; and then August 7th, five pieces, that is seven. That is the same thing as before. And August 9th, one piece. That is

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the same as before. I made them and sent them away. I don't know what became of them. The size of the glass was 1 & 5/8 inch, same thing as the previous Smyser item. September, six lights, 42 feet 9, and 19 tile, 130-11; 7 risers, 18 feet 5, altogether 192.1. The same party Smyser. That is right. We did the same thing; it went out of town and I don't know what they did with it.

Q. October 20th, 4 tiles and 3 risers, 21 feet; what is the size of the tile?

A. 4 feet 3 by 9¼ wide. I don't know whether you can that a tile or not; the size of the glass was 1 5/8 inch. That is true of the September item, 1 5/8 inch.

Q. November, 2 tiles, regular lights; 26 feet five inches?

A. Yes, sir; that is the same thing; it was sent away; the size of the glass is the same. All this work for Smyser & Co. I don't know anything about, except I made it and sent it away. I made no inquiries about it.

Q. S. J. Creswell, who is he?

A. An iron man.

Q. July, 1882, 9, 2 inch tile, 82 feet 6 inches?

A. Yes, that is right. The tiles were made to go under a window, against the building, not on the surface. These tiles were used in Philadelphia. I know that from the size. I remember the size. They were building a wall, and it was built into the wall. In regard to the other out of town work, I don't remember except by this mark, I can't tell about this. The mark has a peculiar shape. It was built in a wall so that the hole in the brick will let it in.

Q. The wall might have been on the sidewalk?

A. How can that be? I don't know where it went.

Q. It might have been a riser to let the light in, might it not?

A. I don't know. It lets light in some way. I can't tell whether it was a riser or not.

Q. 15 regular tiles, same month, 104 feet, 4 inches; is that right?

A. Yes, sir; regular 1 5/8 inch glass.

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Q. What are the dimensions of the tile?

A. Square tiles; ordinary tiling, 2 feet 6 5/8 by 1 1/8. Where that was used I can't tell. We made it all and shipped it to Philadelphia. Creswell lives in Philadelphia, and does business there. There are two more tiles, same month, 14 feet 2 inches. That is the same as the other, same sized glass and shipped to Philadelphia to Creswell.

Q. August, 9 tiles, 54 feet 1 inch?

A. Yes; the dimensions are the same. The same size glass, and we shipped it.

Q. September, 28 tiles, 195 feet?

A. That is the same thing, every way. The same size tile, and we shipped it on.

Q. October, 1 tile, 12 feet 9 inches? Is that right?

A. Yes, sir; the same thing as the other.

Q. November, 26 tile, 175 feet?

A. That is right. The same dimensions and everything the same as before.

Q. February, 1883, 8 tile, 66 feet 10 inches; is that right?

A. This is all Creswell. That is the same as the other. I do not claim I am entitled to account for royalty in Creswell's work under my license; not any under the Creswell work, except what we did ourselves. If we did not do it ourselves we ought not to account for it. I don't know what they used it for; basement or any other work.

Q. If they are used for basement extension, you don't think you are entitled to account, is that so?

A. We did not make the basement extension then.

Q. You did not make any extension in 1882?

A. When we sold plates we did not make any basement extension. When we sell plates and the glass with it we don't make basement extensions, because basement extension is constructed of a different thing.

Q. A. J. Campbell, August, 1882, job at 36 and 38 Barclay, 61 feet?

A. Yes, sir. One plate 8 feet 3½ by 5 feet 3½; 33 11/12 feet. One tile 4 feet 7 by 1 foot

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11½; 71 square feet; 2 inch hexagon glass. What part of the premises this was put down I can't tell.

Q. What did you do to this?

A. It is scratched out here. One tile and three tiles is all scratched out. I can't tell what we did.

Q. Did you furnish the iron and glass both?

A. I can't tell.

Q. Won't the price tell you?

A. I can't tell what that was. The price is here, 61 square feet, $3.25.

Q. Per foot?

A. That it don't say. I have no recollection; I can't say. It must have been something.

Q. November, platform, O'Neill's building, Sixth avenue?

A. Yes. That is per estimate, 2 inch lens. We furnished the iron and glass and laid it in a side street, Twenty-third street, inside, above the area. I don't know the number of feet. It says here per contract, per estimate. I have no way of knowing the number of feet. I can find out by measuring.

Q. December, platform, Pearl and Dover street, 379 feet 4 inches?

A. That is a basement extension which we accounted for. We did that work and furnished everything. The number of feet I can't tell you; you have got the number on that paper. We got the number of feet by making tile measurement. I didn't measure it.

Q. December, 5 tiles, 57 feet 2 inches?

A. Yes. We furnished the plates. We did the work there; where we put it down it don't state. They were all angle tile; the size of the glass was 1 5/8 inch; we made and delivered them to him.

Q. But you didn't put that down?

A. I don't know.

Q. December, platform Thirty-sixth street and Third avenue?

A. I remember that job. Per estimate, that was the Dale company light; I am sure of that, we got the order from Campbell, and the Dale Tile Company did the work and put the

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glass in. We furnished the plates. It was put down in front of the building.

Q. Blake, McMahon & Co., August, 1882, one platform, 23 Great Jones street, 132 feet, and one platform at 18 University Place, 88 feet.

A. That is the Dale light, both of them 2 inch glass.

Q. What part of the work did you do?

A. We laid down the frames and plates, we didn't put in the glass. We had the contract for those two things and got the Dale Tile Company to do it.

Q. Peter Dugro, December, 1882, 7 tile?

A. Six tile. Six 2 inch lens, four feet one, by two feet 6 7/8. One platform, one by two feet 1¾ as per contract.

Q. What part of the work did you do there?

A. We furnished the plates and the glass. We put them down. Mr. Dugro came and got them.

Q. Next G. S. Lincoln & Co., September, 1882?

A. George Lincoln & Co., yes. Glazing, two regular tiles, 13 feet 10 inches. The size of the tile was 1 1/8 inch. We only did the glazing. They make their own castings. We delivered that to them.

Q. December, glazing 40 regular tiles, 126 feet 2 inches, is that right?

A. Yes, 2 inch glass, regular tile, the same as before. We furnished the castings, put the glass in and we delivered them to them. I can't give the dimensions of the tile; glazing 35 regular tiles, 96¼ square feet. Then there are four angle tiles.

Q. The next is Joseph O'Brien?

A. I can't find anybody by the name of O'Brien. I don't remember that.

Q. Burnett & Co., August, 1882, glazing 4 tile, Twenty-ninth street and Fifth avenue, 40 feet 9 inches?

A. Yes; that's right, concrete tile; Dale tile. There was no contract. Burnett & Co. put it down themselves. They are iron men in New York. We glazed it and I sent the order to the Dale Tile Company. 2 inch concrete.

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Q. September, glazing 6 tiles, it don't say where, 30 feet one inch?

A. The same place. That is regular light, 1 5/8 inch glass. We put the glass in. They furnished their own castings. They delivered them to our place and took them away. I don't know where it was put or how it was put down. I don't know anything about it. 6 tiles, size 2 feet 10½ by 1 foot 9.

Q. October 3d, glazing steps, risers and tiles, 16 and 18 Greene street, 170 feet 3 inches, is that right?

A. Yes, sir. We did glazing the same as before. That wasn't concrete, that is regular work that is 1 5/8 inch glass. 9 steps each 7 feet 2¼ by 12 inches; all risers, 6 feet 2½ by 7 inches. They are all angle tiles, notch tile, irregular tile. We simply do the glazing. We didn't put them down. We delivered them to Burnett & Co. They took them away.

Q. October 5th, platform, 628 Broadway, 193 feet 9 inches, is that correct?

A. Yes, it says glazing platform at 628 Broadway, floor lights 25 feet by 7 feet 9; 193¾ square feet. Part of it must have been a platform, and part of it must have been floor lights.

Q. What is a floor light?

A. A light that is inside of a building. When I speak of floor lights, I refer to lights that go into the interior of a building. The size of the glass here I don't know. I don't know what part of this work went into the interior and what outside I can't tell; I can't tell how much went in and how much went out; some of it did go in and some out; I delivered it simply to them; they came after it; that is all I know about it.

Q. October 13th; steps, tile, &c., 16 and 18 Greene street, 71 feet 8 inches?

A. The same as before. We did the glazing, and they came after them. The size of the glass was 1 5/8 inches. The steps 5 feet 1½ by 1 foot 2, and the tiles irregular. There were three tiles, six steps, and six risers.

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Q. October 18th, steps and risers, 16 Greene street, 33 feet 2 inches, is that right?

A. Yes, sir; the same thing.

Q. The 19th; steps and risers at 16 and 18 Greenwich street, 15 feet 4 inches?

A. Yes, all the same. We did the glazing; they came after them. I don't know how they were used, not in what part of the premises; I did not look.

Q. October 20th; glazing rear and front 688 Broadway, 283 feet 1 inch; is that right?

A. Yes, sir. It does not mean the number of tile in my book.

Q. November, five regular tile?

A. That is glazing only. They came after it—1 5/8 inch glass. Platform, 628 Broadway, 263 square feet; we did the glazing. I can't tell in what part of the premises they went.

Q. In the same month, job at the same place, 628 and 630 Broadway, glazing 94 feet 1; is that right?

A. Yes, sir, that is glazing; 1 5/8 and 5/8 glass.

Q. December, 1882. Tiles and steps, 136 feet 7 inches?

A. I don't find that. Glazing, 1 tile, 12 and ¾ square feet; glazing 2 tile, 1 foot by 1 foot. One, 4 feet by 2 feet 4; two steps, 5 foot 3 by 10½; one step, 5 feet 3 by 1 foot and ½ inch; 12½ inches. One step, 5 feet 3½ by 12 inches. The size of the glass was 1 5/8 inches. We didn't put them down; we glazed them.

Q. Glazing rear of 630 Broadway, 207 feet 10 inches?

A. Yes, we did the glazing. 1 and 5/8 inch glass.

Q. January, 1883, twenty-two tile, 204 feet 2 inches?

A. Yes; we did the glazing only. 1 and 5/8 inch glass.

Q. Five tiles, 107 feet 6 inches?

A. The same thing. We did the glazing.

Q. March, 26 tiles, 231 feet 10 inches. Is that right?

A. Yes, sir; we did the glazing.

Q. April, 10 tiles, 80 feet 9 inches?

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A. Yes, glazing ten 16-inch vault covers. I don't know where they were used, whether inside or outside the building. All this work for Burnett and Company we simply did the glazing and they put it down. I made no inquiring as to how they were put down or how used.

Q. Wagner and Pfieff, July 1882, six tiles, 38 feet 7 inches?

A. July 13th, glazing two tiles; one vault cover we sold. On the 31st of July, glazing 1 tile, 2 feet 3½ by 2 feet. One tile, 2 feet 1 and ½ by 2 feet 5 and ½. Two tile, 2 feet 5½ by 2 feet 4½; that is all. To those we did glazing; we did not put them down. They are iron men. They came after them.

Q. August; two tile, 10 feet 5 inches?

A. Yes, the same thing, simply glazing.

Q. September 19th, nine tiles, 2 inch glass, 66 feet 2 inches?

A. Yes; for this firm. We simply did the glazing, and they came after it.

Q. Royer Brothers, Philadelphia?

A. Iron men.

Q. October, two floor lights, 4 lens, 96 feet 9 inches?

A. Yes; 4 inch lens, floor lights. We sold them the tiles, we put in the floor lights. 4 inch lens is 4 inch glass. I don't know where the floor lights were put.

Q. November 10th, concrete light plates, 105 feet 9 inches?

A. They gave us the order and I turned it over to the Dale Tile Company. One concrete platform, 50 feet; 5 feet by 10.

Q. Two 5 inch tiles, 9 feet 4?

A. Yes, 9 1/3 square feet, each 2 feet 4 by 2 feet; and six regular tiles, 36 feet 8 inches.

Q. January, 1883, tiles and risers, 12 feet 5?

A. That is right. All this work was for Royer Brothers; we sent them the plates with the glass in. They went to Philadelphia.

Q. E. L. Cook, August, 1882, two platforms, Academy of Music, 105 feet 3 inches?

A. Yes; Cook is an iron man, or a plumber and gas fitter; he lives in Buffalo. He does his business in Buffalo.

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This Academy of Music is in Buffalo; we made these platforms and shipped them on.

Q. August 1st, platform, W. J. Sedgway building, 60 feet 4 inches?

A. Yes; we did all that work. These are all 2 inch glass with a patent knob protection.

Q. Did you put down the platforms in the Academy of Music and the Sedgway building?

A. No, I guess not. I am not sure; I don't remember. I don't know in what part of the premises they were put. We put some work down; this man Cook did a great deal himself. My son John had charge of the work we did there.

Q. September, four tile, 2 inch lens, 32 feet?

A. One 2 inch glass tile, 2 feet 7 by 2 feet 8; 6 and 10/12 square feet. That is all.

Q. 14 pieces of tiling, 2 inch glass, 342 feet 9 inches, same month?

A. That is right, 342 square feet. I can't tell whether we put that down. The size of the glass I can't tell. 2 inch glass.

Q. January, 1883, 6 vault light platforms, Adams & Moulton, 220 feet 6 inches; is that correct?

A. Yes, sir. Adams & Moulton are Buffalo men. This work was delivered on board, we simply made and delivered it, that is all. The size of the glass was 2 inch glass; the size is here of the section. January 20th, 7 feet 7 and a half by four feet 11. Four of the same size. Irregular tile. One platform 8 feet 8½ by 3 feet 6. One, 8 feet 3½ by four feet 8.

Q. The next item is February, 1883, three vault light platforms, 374 feet, 9 inches; is that correct?

A. That is right, 2 inch glass, that was laid in Buffalo also; they were irregular tile; my book does not give the size of the tile, it gives the size of the platform. It is very irregular.

Q. March, two floor light tiles, 16 feet; is that correct?

A. Yes, sir; two floor light tiles, 4 feet by 2 feet. Floor lights are all of larger glass than 2 inch; they go inside of a building.

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Q. 15 vault light platforms for Fitch Institute, 516 feet 5; is that correct?

A. That is correct. That is 2 inch glass. There are six, four feet 6 by 4 feet 8. All separate sections. Two, 6 feet 5 by 4 feet 8; one, 15 feet 4 by 4 feet 8; five, 7 feet 3½ by four feet 8; one, 7 feet 2½ by 4 feet 8; two, 6 feet 5 by 4 feet 8. That is all. Altogether 516 feet that is 2 inch glass.

Q. March, 2 frames with E. K. tiles, 23 feet?

A. Yes, sir: I have got it. Four feet 11 by 3 feet 4½, 4 feet 10½ by 3 feet 4½.

Q. What are E. K. tiles?

A. That is my own patent. It is a protection of a knob, a long knob, I have got a patent on that. Mr. Ingalls and I patented that in 1873 or 1874. This patent refers to the knob to protect the glass. All this work was done for E. L. Cook. We shipped to Buffalo all of Cook's work; we did not put it down. I didn't go out there to see that it was properly put down. I had nothing to do with it. My son didn't go out to see that it was properly done. Cook set it himself. All I did was to make the frames and tiles and set the glass. I don't believe I ever saw the building where it was put down.

Q. S. B. Ferdon, February 18, 1882, look at that?

A. Yes; area, 635 Broadway, covering area. That was an estimate job of $235 per contract. I haven't the number of feet; I did the work there; it was put down on the front of the building on the sidewalk. Ferdon is not the owner of the building, he is an iron man. What the size of the glass is, I could not say. This formed a part of the stoop, we did all the work to this.

Q. The next is J. S. Stevens, Philadelphia, July, 1882?

A. Yes; one floor light, 13 feet, 4 feet by 6 feet, July 13th. I cannot tell what kind of glass. It goes inside of a building.

Q. Do you know whether it went inside of a building?

A. It says floor light.

Q. Another piece of light, 22 feet 7 inches?

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A. Yes, sir; on the 22d. I can't tell you what that is. The size of the glass I cannot tell you. I do not know what kind of a light that was.

Q. November, 4 tile, 216 feet and two inches, is that correct?

A. Yes, sir. That was concrete tile, 2 inch glass. Dale light. That is where I got a contract and gave it to the Dale Tile Company to execute; they did the glazing, we furnished the castings and Stevens paid us and we settled with the Dale Tile Company.

Q. February, 1883, 8 pieces of light, 40 feet 7 inches, is that correct?

A. Yes, sir. The size of the glass I cannot tell you.

Q. March 1st, one tile, 5 feet, is that correct?

A. That is a floor light, one plate; it is marked here in the book; Stevens was an iron man in Philadelphia; we sent the plates to him; where these plates were put down, I can't tell; we made and shipped them to him, but I don't know where they were put down, or how they were used; I do not know whether any of them were used in basement extensions.

Q. Thomas H. Burns, August, 1882, one tile, 2 inch lens, 9 feet 8 inches, is that correct?

A. Yes, sir; we just furnished the tile the same as the other, only the plate and set the glass. If it is a single tile, that tile is not a basement extension. A single tile is a vault cover. I can't tell you what that is used for; we did not put it down; you can't make a basement extension out of a single tile, because there is not enough of it.

Q. But it was used to represent a basement extension, wasn't it?

A. I can't tell.

Q. It could be used for that. It was possible?

A. I can't answer that, because I don't know how it was used; we made the plate and furnished the glass and glazed it, and shipped it. Burns lives in Newark, New Jersey.

Q. January, 1883, 6 tile, 2 inch lens, long knob, 34 feet 6 inches, is that right?

A. yes, sir; we did

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the same thing; then furnished the same and shipped it.

Q. March, vault light platform, 122 feet 2 inches?

A. Yes, March, 88 and 5/6 square feet. March 28th, 88 and 4/12 feet. We did everything on that the same as the others. These were made and sent to Newark. I do not know where they were put down. That was a two inch elongated knob. I don't know how they were used.

Q. The next is Edward Smith, June, 1882, door and frame?

A. I don't find that.

Q. The next is Samuel McCullough, October, 1882?

A. Yes; two platforms. That is per estimate; they were put down at 245 and 247 Washington street; we did the work and put them down. The dimensions I have not got. They were $355.

Q. December 8th, one platform, Green and Spring streets?

A. I guess you have got that in your return. McCullough used to be in the iron business at the time I did this work for him.

Q. Dale Tile Company, August, 1882, tiles and doors, 105 feet 9 inches?

A. Yes, sir, that is correct. August 21st, glazing two tiles 98 and 11/12 feet, and two doors 15 10/12 feet, that is all. Of the doors the size of the glass is two inches, and the other must be bull's eye light. I ain't sure of that.

Q. September, tiles 90 feet 7 inches?

A. Yes; glazing 68 feet and 5/12, that is the same as before. And 22 and 2/12, glazing.

Q. Now give us October?

A. 45 7/12 square feet. Then there is another 45 square feet. October 6th, 45 7/12 square feet. The first one is October 6th, glazing two tiles, each 4 feet 9 9/12 by 2 feet 3½. Then two tiles 4 feet 9½ by 2 feet 3¼. Two tiles each 4 feet 9½ by 2 feet 5½. 45 7/12 square feet. One the 19th, two tile 7 feet 4 by 2 feet. 29.4. Three tile 3 feet 3 inches by 2 feet. 25.6. Two more tile, 4 feet 3 inches by 2 feet 4 inches, 19.10. On October

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5th, glazing floor lights 628 Broadway, 193 feet and ¾. Floor lights. Then October 12th, glazing Sixty-ninth streets and First avenue, 44½ square feet. October 13th, Eighty-third street, Arnold & Son, 31 square feet; the 19th, glazing 688 Broadway, front, 162 feet 10 inches. Rear, 120 feet 3 inches. October 27th, glazing 27 East Nineteenth street, 148 square feet.

Q. Here you did the glazing for the Dale Tile Company, did you?

A. That last is for Cook & Radley, 37 East Nineteenth street. Now, November, sundry tiles glazed for Cheney & Hewlett, for Prince street, and Green and Bleecker and Mott streets, 495 feet one inch. We did nothing direct for Cheney & Hewlett. It was done through the Dale Tile Company. To glazing for Cheney & Hewlett two rile regular 5 feet 6½ by 2 feet 4; 25 and 10/12 feet. Then two tile 4 feet 9¼ by 2 feet 4 inches; 22 feet 4. Then there is one tile 4 feet by 2 feet 4; in all 9 feet 4. Another tile 4 feet by 2 feet 8, Prince street. Then there is one on November 4th, glazing for Cheney & Hewlett, Bleecker street, one tile altogether 103 feet and 7/12. November 2d, by glazing 628 Broadway, 263 square feet. November 4th, 1 tile 12¾. That was made for Creswell on behalf of the Dale Tile Company. The next one is 96¾ square feet, on the same day, made for Royer Bros., Philadelphia. November 17th, glazing 3 twenty-four inch vault covers, 9 feet 6 inches. 27th, 4 floor lights, tiles for Royer Bros.; 50 square feet. November 6th, to glazing for Cheney & Hewlett (all for the Dale Tile Company), 31¾ square feet. To glazing for Cheney & Hewlett, Prince and Greene streets, altogether, 89 feet and 1/6. To glazing for Cheney & Hewlett, 40 and 1/12 square feet. Glazing steps, risers and sills, 628 and 630 Broadway, various tile altogether amounting to 94 1/12 square feet. November 24th, glazing for irregular tiles for

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Cheney & Hewlett, 26 1/3 square feet. 26th, to glazing four regular tile for Cheney & Hewlett, 27 9/12 square feet. 28th, November, to glazing for Cheney & Hewlett, Prince and Greene streets, various tiles, 64¾ square feet. December, 1882, glazing four risers, State street, 7 feet 11 inches. (Item passed for the present). All this work which I have set down for Cheney & Hewlett was done for the Dale Tile Company; we did the glazing; we did not lay it down; they bought the castings and we put in the glass; we had no arrangement with them that in this particular work they should make the castings and we should do the glazing; they sent it like everybody else; Cheney & Hewlett sent it to the Dale Tile Company, and the Dale Tile Company sent it to us.

Q. Look at Augustus A. Ball, July, 1882, one 2 inch tile 43 feet, is that right?

A. Ball was an iron man in New Haven, 16 Audubon street; we made the tile and shipped it, and put in the glass; I don't know how it was used; two pieces of tile; 45 square feet.

Q. April, 1883, 1 platform, is that correct?

A. Yes, sir; that is 2 inch glass; it is estimate; I don't know how many feet, we made that and shipped it to Philadelphia; I don't know how it was used; whether it was used for basement extension or not; I don't know anything about it.

Q. Robert Wilson, 13 Temple street, New Haven, August, 1882?

A. 2 pieces of light, 2 inch lens, 4 feet 11 by 2 feet 4; irregular; notches are out; 23 feet 9 inches; Wilson is an iron man in New Haven.

Q. January 6th, 65 regular glass, what is that?

A. 65 pieces; a pretty good sized contract at four cents apiece; a single bull's eye sold.

Q. 1 vault light, plate, March, 11 feet 8 inches?

A. That is right; we made these and sent them up; how they were used I don't know. Next, Westing & Haffers, August, 1882, 1 concrete tile 3 feet 7 by

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1 foot 6½. December, 1 vault light, 4 feet 3 by 3 feet 8. Then December, 1 vault light, 18 feet 1, 4 feet 11, by 3 feet; one 20 inch vault cover and ring; altogether, as per contract, $45; Westing & Haffers are iron men of New York City.

Q. Sanitary Manufacturing Company, August, 1882, read that?

A. (Reading) 1 plate, irregular, 6 feet 3 by 1 foot 11½; 1, 4 feet 3 as per sketch; 5 feet 4 by 1 foot 11½; 12 feet and 2/12, the first item; the second item, 29 feet 3 inches; 10 feet 5; 35 feet 4: those different items make 162 square feet; besides that, there are 17½ square feet. Of the various above items there are 162 square feet, but in addition there is another 17½ square feet and 4 plates 5 feet 4 3/8 by 3 feet 5½. Altogether they amount to 185 square feet; I don't know where this work was sent; that was long tailed light; we made them up for them; that is their own light; they furnished the glass themselves; long tailed light of the Sanitary patent; they are manufacturers of patent lights; the glass, usually, is about an inch and three-quarters on top and three inches long; I think it was the elongated knob that is my patent; I do not know where those tiles were used.

Q. Not, Tice & Jacobs, September, 1882, 5 tiles, 34 feet 2 inches.

A. I can't find that.

Q. Can't you find from your books where these are, the two large items, one of November and another of December?

A. I can't find them.

Q. Look at E. M. Gray & Co.?

A. Iron men at Washington. Six regular tiles, 70 5/12 square feet. That was bull's eye light, regular glass. We made those and shipped them the same as the others. I don't know what became of them.

Q. Did you put down the basement extension roof at 40 Murray street?

A. I can't give it without the name.

Q. Look under the head of Vaughn & Sons, August 10th, 1881?

A. We only account for

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November, 1881. It is not here in my book. That is previous to this account. I haven't my books from August to November, 1881, here. That is the old ledger.

Q. Where is a piece of basement extension that you have laid?

A. As near as I can get to a basement extension, is on the corner of Spring and Greene streets, where Rogers, Peet & Company are; another is on the southeast corner of Spring and Greene. We accounted for that, because it came so near Mr. Hyatt's basement extension; what he calls basement extension.

Q. You considered that illuminated basement extension?

A. We account it that.

Q. You considered it so?

A. Yes; of course.

Q. Why do you think you are entitled to account for that?

A. It is constructed different from area in the respect that the old area cover has been done for 12 or 15 years before that patent of basement extension got out. I can bring my book and show you what a basement extension is. I don't consider that I am obliged to account for an area. There is a big difference between an area and an illuminated basement extension; a basement extension is a basement extending right out; it continues from the basement right out under the sidewalk; how far under the sidewalk depends on how big the sidewalk is; it must go under the sidewalk; it makes the whole sidewalk.

Q. Supposing it only takes a part of the sidewalk, wouldn't you consider it a basement extension?

A. If there is a coping and a wall up it is an area cover.

Q. Your answers have been based on that idea in this reference?

A. Yes, sir.

Q. Supposing there is no wall between the basement and sidewalk, would you consider it a basement extension?

A. I would not, because it is not shown in the specification or drawing; it shows in that drawing what a basement extension is;

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when you patent a thing you have got to show a drawing, and that drawing is according to the thing patented; the reason for not accounting for this area is because I don't consider that it comes under the specification of the patent.

Q. Supposing they had a grating or plates, illuminated basement on a portion of the sidewalk, would you consider that a basement extension?

A. I have never seen one done that way.

Q. If it was illuminated basement alone, would it be a basement extension?

A. I don't know anything about it; I don't know what you mean.

Q. Is not a basement illuminated by the area covering, by the lights of the basement extension cover or area covering; don't that make an illuminated basement covering?

A. All lights over the area light a basement.

Q. Did you have cast on any of this work, which you manufacture under your license, the words "Hyatt's patent basement extension roof"?

A. I don't remember.

Q. So far as you know, you did or did not?

A. I don't remember that I did, and I don't remember that I did not; I have no recollection on the subject whether I did or did not.

Q. There was a provision in the license requiring you to do it, wasn't there?

A. I don't recollect whether it is in the license or not.

Q. Would you have been apt to remember it if you had those words cast?

A. I don't believe I ever read the license; I don't recollect of every giving directions to my employees to have those words cast; I don't believe I did.

Q. I will show you the return you filed in this accounting (handing witness paper). State whether any of that work was where you simply laid or manufactured the iron plates?

A. That is work we laid; I mean by that, it is work where we did all the work; we didn't find any pieces of glazing there.

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Q. I show you this paper; do you recognize that as a return (handing witness paper); what months are those?

A. I don't believe I ever saw that before.

Q. Do you know the signature there of John Mark?

A. John W. Mark.

Q. Isn't that the return which was filed of your business for several months?

A. I don't know anything about that. I was not connected with it when the returns were made out by Mr. Ingalls.

Q. Isn't that a return of Mr. Ingalls?

A. That is, by construction. He was bookkeeper, and I suppose, by construction, it is a return by Mr. Ingalls.

Q. I ask you to look at this paper marked for identification, Ex. 1 of this date, and ask if those are not returns by Ingalls and Mark to the licensors in this case?

A. Yes.

Q. Now examine it and see if there is any work in there in which you simply did the glazing. Look for the different items?

A. (Witness examines it.) I cannot tell now. It is so long ago.

Q. As a matter of fact, did you account under this license for work where you simply did the glazing?

A. Not to my knowledge.

Q. Do you know one way or the other?

A. I don't know; I am no bookkeeper.

Q. Who was connected with your business who knows?

A. There is nobody but Mr. Ingalls.

Q. Since Mr. Ingalls left the firm, there is no one connected with your business that knows where you accounted, where you did the glazing, or where you did all the work?

A. There was no account since 1881. Mr. Ingalls left the firm in 1882. Mr. Ingalls kept the account.

Q. Is that account which you have got in your hand made out by Mr. Ingalls; by whom is it sworn to?

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A. It is sworn to by John W. Mark, bookkeeper. He was the bookkeeper keeping the books; he is connected with my business now.

offered in evidence and marked Plaintiff's Exhibit 1, February 6, 1885.

Plaintiff's Exhibit No. 1.

QUARTER ENDING NOV 1. 1/81

Account of Illuminating Tile used for basement extension sold by Ingalls & Mark, 5 Worth St., N. Y.:

For Quarter ending Nov. 1/81.

Whom sold.	Where sold.	Sq. feet.
C. Vreeland,	City,	31	½
Shapley & Wells,	Binghamton, N. Y.,	25
E. L. Cook,	Buffalo, N. Y.,	40
Tarrant & Co.,	282 Greenwich St.,	51	½
E. G. Smyser,	Baltimore, Md.,	173	½
C. A. Schneider & Sons,	Washington, D. C.,	77
S. J. Creswell,	Philadelphia, Pa.,	66
E. G. Smyser,	Baltimore, Md.,	45
Burnett & Co.,	City,	60
S. J. Creswell.,	Philadelphia, Pa.,	15
S. J. Creswell.,	Philadelphia, Pa.,	138	¾
G. S. Lincoln & Co.,	Hartford, Conn.,	47	¾
E. G. Smyser.,	Baltimore, Md.,	180
Cook & Radley,	City,	35	¾
S. J. Creswell,	Philadelphia, Pa.,	23	½
Gray & Noyes,	Washington, D. C.,	18
C. Vreeland,	42nd St. & 4th Ave.,	60
A. Hamill,	8th & Grove St., Jersey City,	140
S. J. Creswell,	Philadelphia, Pa.,	57	½
Little & Rowe,	Rochester, N. Y.,	172
Wagner & Pfeiff,	City,	88
E. G. Smyser,	Baltimore, Md.,	23	¾

290

Whom sold.	Where sold.	Sq. feet.
S. J. Creswell,	Philadelphia, Pa.,	39	¾
Thomas Burns,	Newark, N. J.,	106
C. Vreeland,	City,	46	¾
Cook & Radley,	City,	27
J. E. Wright,	2179 Third Ave.,	36	½
Cook & Radley,	City,	125
Wagner & Pfeiff,	City,	37	¾
Blake, McMahon & Co.,	City,	19	½
S. J. Creswell,	Philadelphia, Pa.,	24
S. B. Ferdon,	745 Sixth Ave.,	82

	2107	¾
	@ 30¢

	$632	32

New York, Nov. 7/91.

City and County of New York, ss.:

JOHN W. MARK, being duly sworn, deposes and says, that the above statement is true and correct to the best of his knowledge and belief.

JOHN W. MARK.

Sworn to before me
November 10th, 1881.

HENRY HOYT,
Notary Public, N. Y. Co.

Q. Can you look at this account, Exhibit 1, and state on which items you simply glazed and which items you did all the work?

A. I cannot do it.

Q. In getting at the number of feet of a certain piece of work, in what way did you measure the work, that is, you measure the over-all measurement or the tiles? Do you know what I mean by that?

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Did you measure the gratings only, or take in the frames?

A. Where we sold by the square foot we took in the frames.

Q. In what way did you get up your accounts in this matter; did you take in the frames or simply the tiles?

A. The tiles.

Q. If you had measured the over-all measurement, the frames, there would have been a good many more feet?

A. A little. It would not make much difference. On some jobs it does and some it don't. On some it makes more and some less. Some are very narrow margin, very narrow border; it depends on the nature of the job. We went according to the tile measurement. We used all sizes of plates for area lights, and all sizes of glass.

Q. What were the sizes of glass of what you call basement extension?

A. The same kind; the same material.

Q. What is a tile?

A. A tile is a cast iron plate. And a tile is a plate. We use them synonymously; in the same sense. In ordinary business we say tile. Sometimes we say a plate and mean the same thing.

Q. Have you looked to see the amount of the measurement?

A. We are looking.

Defendants' Counsel.—It is substantially correct, but there are errors, perhaps, in addition, &c., and inaccuracies, so I cannot permit it to go in as an absolutely correct abstract from our books, but it is so nearly correct that you may use it as a basis for argument or examination, or anything of that sort.

Plaintiff's Counsel.—I will submit to any corrections.

Defendants' Counsel.—We think it is substantially correct.

Q. Do you know whether the work which you

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have accounted for lighted the whole basement?

A. I never tried that. It lights a part of it. It might light the whole of it for all I know.

Q. Have you examined these different basements to ascertain whether they were lighted by this work that you made under the patent?

A. I have been in the basements. I did not examine them to see how far the light went back. I have been in every basement for which we have accounted. Through every one. All in town and in some out of town, not in all.

Q. In Philadelphia, Creswell?

A. I was not; my son was.

Q. How do you know he had been in it?

A. He had been there several weeks working on it. He told me.

Q. Don't you know whether this work for which you accounted, whether it was worth which you glazed or in which you furnished all the material?

A. We furnished all the material.

Q. These are extracts from the books of Ingalls and Mark and Mr. Mark during the period in question?

A. Yes, sir.

Offered in evidence and admitted. Marked Exhibit A, consisting of five pages, May 16, 1885, and Exhibit B, consisting of seven pages, same date.


293	295	297	299	301	303	304

[Note: transcript pages missing; numbering goes from 876 on page 292 to 913 on page 305.
Pages 294, 296, 298, 300 and 302 are blank backs of drawings]

305

Q. Didn't he, most of the time?

A. I am not sure.

Q. He kept the books sometimes during that time?

A. Yes.

Q. Who kept the books the rest of the time?

A. Mr. Ingalls.

Q. Who else?

A. That is about all. Charlie, the other son, kept them a part of the time. He was not a practical bookkeeper. None of them were.

Q. State what amount, if any, of basement extension has been accounted for by you, in this proceeding, that was put up or used out of the city of New York?

A. What we used out of the city, I accounted for.

Q. State what, if any?

A. I don't know; if we did any, it is accounted for.

Q. Is that the account in this proceeding? (Handing witness paper).

A. Yes, sir.

Q. State what items, if any, of work done out of town?

A. One, done corner of Fourth and Chestnut streets, Philadelphia.

Q. Is there another?

A. Not under basement extension. That work in Philadelphia was put down complete by Ingalls and Mark. In that way, I happened to know that this was basement extension. I have not accounted in this proceeding for any work where I have furnished and inserted the glass, but not furnished the tile. Nor have I accounted for any work where I have furnished the plates and the glass, but not the frames. There is work where I have furnished plates and glass, but not the frames, during the period in question, that I have not accounted for in this account. I don't know whether any of the tile in which I have inserted the glass during the period in question, but for which I have not accounted, contributed in any way to light the basement. I have no means to ascertain.

Q. Have you made and sold what you call

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illuminated grating, during the period in question, for which you have not accounted?

A. It is all illuminated grating—glass and iron. What we called tile is illuminated grating. I have made and sold illuminated grating for which I have not accounted. I stated that before. I have not accounted for any work where I have simply furnished and inserted the glass in the tile. I have, however, inserted and furnished glass in the plates during the period in question.

Cross-examined by Defendant's Counsel, as follows:

I have truthfully and fully accounted for all the work done by me and materials furnished by me for the lighting of basement extensions and basements under the Hyatt patent of 1878, and the license that I received.

Q. What is the difference between an area, as we hear that work used, and a basement extension?

A. (Witness explains to the Referee from printed case and exceptions.)

It is stipulated that either party may read from the printed case and exceptions on appeal in this action.

The vault lights are in sidewalks, and are square, round, octagon, hexagon, and all kinds of shapes.

Roof lights are lights that go over the rear of a building; extended, flat, curved, hexagon, or any shape.

Floor lights are set inside of a floor and come nearly under the roof light to throw the light down into the basement.

All these different sorts of lights are made of the same combination of glass, iron, putty, &c.; the same thing.

This patent of Mr. Hyatt professes to have been

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issued in 1867; were these area lights, vault lights, roof lights in existence before that time?

A. Yes, sir.

Q. Do you know how long they were in existence?

A. I went in that business in 1857, and we made the same kind of work then that we make now. I don't know how many years it has been used.

Q. Explain what this basement extension is, or how it differs from an area cover?

A. The difference is this: an area cover is where there is a wall four or five feet out from the building down. That is simply an area and a basement extension is continued right straight through.

Re-direct:

Q. Is it possible to light a basement at all from the area light?

A. Certainly, you can like a basement from the area light.

Q. Do you get light to the basement from the basement extension?

A. All the same thing.

Q. Haven't you testified that you have sent away quantities of plates and glass inserted therein, the particular use of which you didn't know?

A. Yes, sir; I said so.

Q. How are you able to testify that you have truthfully and honestly accounted for all basement extensions made under your license.

A. My license called for the basement extension that I furnished and put down.

Q. (Repeated)?

A. I accounted for what basement extension I made. I mean by that that I have accounted for the basement extension which I actually put down. And that is all that I mean.

Q. Mr. Mark, please look at the entry in your order book to E. G. Smyser, November, 1881, the entry "Tiles and Risers, sent to Baltimore, 130 square feet, 10 inches." Is there anything in that entry to show the purpose for which those tiles were to be used?

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A. No, sir, I don't know anything about what they were used for.

Q. Those tiles might be used for basement extension, might they not?

A. I don't know what they might use them for; they could be used for basement extensions as they were furnished by me. They were all made of one material; all made of one thing.

Q. And in the same entry the six tiles sent to Baltimore, thirty square feet, could they have been used for basement extension as furnished by you?

A. I can't tell anything about that.

Q. Were they adapted as furnished by you to be used for basement extension; could they have been used as furnished by you for basement extension?

A. That would be the same as the other.

Q. They could then?

A. They were the same material, glass and iron.

Q. These tiles consist of glass set in an iron frame, do they not?

A. I did not do the iron frame. I did the tiles. I don't know what they set them on. The tile consists of something more than glass; the iron and the glass, and the glass is cemented in the iron.

Q. The tiles thus constituted of glass and iron as furnished by you to Smyser, were adapted for basement extension?

A. I can't tell anything about that, what is was used for. It might be used for roofs or floors, or it might have been used for basement extensions. My books do not show whether the tiles furnished to Smyser were furnished for area lights or basement extension, or vault lights or roof lights. In selling these tiles to these parties I don't remember that we ever inquired the purpose to which they were to be put, if we did they would never tell. They would say it was none of our business.

Q. Look at the entry in your order book to Cook and Radley, November, 1881, floor lights, how do you know that these were floor lights?

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A. If it was put down in the order book, floor lights, it goes inside of a building as a floor. That is a cheaper light. It is a large glass, sometimes 6, 8, 9, 10, and 12 inches square. I have no knowledge of what tiling was furnished under that particular entry to Cook & Radley, except such information as the order book itself gives, namely, the word floor lights. I have no knowledge of any other. If it is marked floor lights, it is floor lights, and my belief that it was floor light for the interior of buildings, is derived simply from the book alone.

Q. Would the prices be any different for floor lights and basement extension lights?

A. Yes, sir. We have not the prices here, only the square feet.

Q. Then the entry to Cook & Radley, December, 1881, "Plate with cover in centre, 30 x 30," have you any knowledge what that was?

A. No, sir; I have no knowledge. It might have been a vault cover 30x30. Vault covers come that size; 36x36 also. They might set it in a roof. It could not be a basement extension.

Q. It might be an area light, but not a basement extension?

A. It could not be a basement extension, according to the patent.

Q. Now, Cook & Radley, January, 1882, platform, what kind of work was that?

A. I will have to look at the book; I have not got it here; all information I have of that is from the books.

Q. What was the particular character of that work which was designated in your books as platform?

A. That is an area cover; I have not found one job that we did for Cook & Radley, that was a basement extension.

Q. And where "platform" is used in your books in connection with any work done, does it always mean area work?

A. Well, the platform could be used for basement extension and it could be used for area work; Cook & Radley work was nothing but area covering.

310

Q. But there is nothing in the work platform, used in your books, to exclude its application to basement extension work?

A. Well, we put in sometimes in the book platform, even for area cover, one platform such and such size.

Q. Did you ever put in the book, platform, when you meant basement extension work?

A. That I don't know; I will have to see the book for that.

Q. You have not used, then, in your books, the work platform as having a limited meaning, and excluding basement extension?

A. I don't know anything about that; I don't know what might be in the book; sometimes platform, sometimes covering; he just takes it from the estimate, that is all, and puts in in the book; call it platform, call it area cover, call it basement extension; they are all platforms.

By the Referee:

Q. Does the word "platform" have a limited meaning, or may it include all this class of work; may it include basement extension as well as other work?

A. Yes, sir; platform is the same thing as over a basement extension; over an area is just the same as over a basement extension; the word platform, as used in our books to designate work done, may, therefore, mean basement extension work; the word platform is broad enough to include anything.

Q. Where (as in the entry to Cook & Radley of April, 1883), you use the word vault light, what character of what did you mean?

A. That is always one thing, vault light, area light and basement extension is all one thing, and where the word vault light appears in our books it might mean work furnished for basement extension.

Q. Having reference to the work furnished Cook & Radley, I understand (from your previous testimony) that some of the work your firm laid, can

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you point out from the entries in that account, what particular work your firm completed?

A. April, 1882, platform, Fifty-third street and Madison avenue, I lad them; when I say "laid them" I mean the same as completing them.

Q. What was that particular thing that you laid?

A. That was where the entrance was in the store; it is just a narrow platform with lights and an area; it is all open; it is an area and a railing all around it, where the entrance is in the store, laid from the sidewalk to the house line.

Q. Did you complete any of the other work shown in the Cook & Radley account on your order book?

A. Yes, sir, that is the entry, April, 1883, vault light, 430 and 437 East Fifty-ninth street. That is an area. From the building line to the sidewalk line. An area is between the building line and the inner edge of the sidewalk.

Q. Did you see any of the frames in which the illuminating tiling that you furnished Cook & Radley were to be inserted except in these two instances that you have pointed out?

A. I always saw frame. They never point out what the work is to be used for. There is no difference. They are one and the same thing; same frame which might come over a basement extension and might make a bridge or a platform.

Q. Would not the size of the frame in which the illuminating tiles was to be placed, show whether it was for basement extension or for an area light?

A. No, sir; it would not, it wouldn't show that it was an area light.

Q. Now, the entry to Westing & Haffers, April, 1883, described, platform risers laid at Finck's Brewery in Thirty-ninth street?

A. I completed that work, yes. That was what we call a two-inch glass set in frame the same as any. It was not a basement extension. It was two inch bull's eye glass, applied over the area from the building up to the coping, to the area well, up to the inner

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sidewalk line. I think that was a cover over a boiler. I am not quite sure. There is no entrance from the building to it. That is just an entrance for the engineer to go through. The boiler sets under the sidewalk and the light is over it for the engineer to see.

Q. But the light does not extend on to any part of the sidewalk?

A. Not beyond the sidewalk. Not beyond the stone coping and that stone coping is at the inner edge of the sidewalk.

Q. Now, the entry to S. J. Creswell, from November 1881, to April 1883, in your order book, what portion of those entries relate to basement extensions?

A. he work on the corner of Fourth and Chestnut streets, Philadelphia. That we accounted for. That is the only basement extension work we have done for Samuel J. Creswell. All the other is single tile or plate sold. I think the entry January, 1882, platform, applies to that.

Q. And in all accounts where the word "tile" is used, you are unable to tell for what particular work it was to be used?

A. No, sir, I cannot tell what part of the work furnished Creswell as shown in the order book relates to vault covers. It is marked here tiles, but I don't know what the tiles were used for. I cannot tell what part of the work shown by this entry was for vault covers.

Q. With the exception of the entry of January, 1882, platform, in Creswell's account, you don't know what the rest of the work furnished was used for?

A. No, sir; we did not complete it. We just sent them the tiles. And in this as in all other instances, where I simply sent the illuminating tiles, I did not inquire or learn the purpose for which they were to be used.

Q. In the account to Scheuer & Co., April 1883, twelve floor lights, do you know what these lights were?

A. I cannot tell. If it is marked floor lights, it must be floor lights. I think it was. I am not positive it was not illuminated tiling

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for work outside the building. I don't know anything about it. Twelve floor lights, I think, went out of town. It must be for inside of the building if it was floor lights. I am not willing to swear that it might not be for work outside of the building. They can use them anywheres.

Q. In the account of Blake & Co., do you know what tiles were furnished there were for?

A. All these entries for Blake, McMahon & Co. from November 1881 to January 1882 are accounted for.

Q. In the entry to A. J. Campbell, May 1882, for curved roof tiles, what do you mean by that entry?

A. That is a roof tile. It means roof tiles with curves and it can't be used on anything but roofs. The curved form shows that it is not to be walked on.

Q. In the entry to P. Dugro, November and December, 1881, can you tell what that work was?

A. We didn't do that work, we only furnished the plates for it. I don't know whether the roof light was adapted to be walked over. I can't tell anything about that. I can't tell whether this roof light to Dugro was for work outside or inside of the building.

Q. Does the mention of the word door and roof light in the entry suggest to you how they were to be used?

A. Well, the door is where they lower coal or such things down, or lower good down. They make a great many doors for coal holes. The door opens either one way or two ways. It is not an illuminated sill; it is a door.

Q. In the entry to S. J. Lincoln & Company, November and December, 1881, and February 1882, there appears to be 6 tiles, 3 tiles and 82 tiles, respectively furnished?

A. That is a mistake. Mr. Lincoln never 82 in one lot. I do not know what those tiles were furnished for. Mr. Lincoln sends his own castings from Hartford, and we put in the glass, and we send them back again, and he uses them.

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Q. Were they adapted and could they be used for basement extension work?

A. Well, there are 42 tiles that went to Meriden, Connecticut. That was nothing but an area cover. I saw that myself, after the work was done. That was 40 or 42 tiles, instead of 82.

Q. If there was 42 tiles instead of 82, would be number of feet, 496 feet 7 inches be correct?

A. Well, it must be correct—the number of feet; yes, sir; if you have got the number of feet. I can't tell without looking at my books what the number of feet are. I wish to correct that. Instead of going to Meriden, I went to New Britain, Connecticut?

Q. I think you have previous testified as to these entries. I have asked you about in regard to Lincoln & Co., that they were sent to Hartford.

A. We delivered it here to the Hartford boat. He sends his castings to New York and we do nothing but insert the glass. He furnishes all the rest of the work and lays it himself. He used to do that work himself, but he found it cheaper to have the glass put in, and that is the reason he sent it to New York. He did it for years himself, and he is glazing now.

Q. Would the number of feet suggest to you the character of the work—what it was adapted for?

A. I can't tell the number of feet except by the books. It may be for different jobs, but there never was 82 delivered at once.

Q. You are unable to state what the tiles furnished to Lincoln & Co. were used for?

A. We did not furnish the tiles; we only furnished the glass.

Q. You don't know from the shape or configuration of the tiles in which you inserted the glass for what purpose they were to be used?

A. I know nothing about it, except this one instance in the place I saw they were inserted. I might have seen several places. I could not remember. They were used in New Britain for area; they were formerly large sheets of glass in the place, and they

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took out the sheets of glass and put in these tilings with lights. I think I remember how many tiles were used in this instance at New Britain; I think to my best recollection it was either 40 or 42. I the objections there were 40 regular tiles, 106 feet 2 inches, December 18th, 1882. It says, "placing" in his objection here, and also "placing two regular tiles, 2 feet 10 inches." But in the entries of November and December, 1881, the February, 1882, I am unable to throw any light on the purpose for which the tiles were adapted to be used. I can't tell; we only furnished the glass and didn't furnish the tiles. Of all Lincoln's work that we did we only furnished the glass. Sometimes I sold them glass by the barrel, and other times he sent the tiling down, and I glazed it. In these particular items referred to of November and December, 1881, and February, 1882, I can't tell whether the tiles were sent to me to insert the glass. if it is on that book there, it must show. I know that the tiling that I saw at New Britain, which had been furnished Lincoln & Co., was area work because I was there at the building. I will tell you. I was sent for to estimate on that job, and Mr. Lincoln did the iron work, as is generally done in the trade. If one man does the iron work in a building, another man will not interfere. Mr. Lincoln did the work originally, and I saw sent for to estimate on that contract, and I went to New Britain to look at the work, and Mr. Lincoln figured on it at the same time, and Mr. Lincoln took the job. He was below me, and that is the reason I saw what it was.

Q. How far from the building line did the tiling extend in the case at New Britain?

A. I think it was about between two and three feet, I guess—I forget now exactly the distance out. I noticed how the basement or room was constructed under this tiling. It was an area cover. The lights went over the area. I do not know how the basement is constructed. The tiling rested on the front wall,

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and then there is coping on the top of it, and that is where the lights rest on; an area well, as they call it. I noticed the basement extended out to the coping on which the tiling rested two or three feet from the building line. It is an area covering, no basement. I noticed this area was reached from the basement, similar to all areas. They have brick piers up, about two, three or four feet apart; and sometimes they have doors in it. I did not take notice whether they have doors in it or not. I did not take notice how it was constructed. That is the general way with brick piers. I didn't notice particularly how the basement, or the basement and area, were constructed in this New Britain case.

Q. How thick are these brick piers generally in the cases of areas?

A. I did not measure them. That is a thing I never bothered about. They run sometimes 2 feet 6 inches and 3 feet, depending upon how much they carry above. It will depend upon the weight above.

Q. Now, referring to the entry of November, 1881, December, 1882, and April, 1883, in the order book; tiles furnished to Burnett & Co.?

A. We did not furnish the tiles to Burnett; we only furnished the glass. Mr. Burnett makes all his own castings and constructs his own work. The tiles were furnished up to insert the glass; they send the tiles to the shop and they come and take them away again. I can't tell what those tiles were used for. The number of feet, "395 feet 1 inch"; "703 feet, and 34 feet 10 inches," does not suggest to my mind the character of the work, because there is work done for Burnett that I could not do at all; work on a different patent. The patentee would not allow any one to do it but himself, but it does come sometimes in our contract, and we have to go to the patentee and get it done. All the Burnett work is glazing, and all that glazing is done by the patentee. I did not even examine the

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work done by Burnett & Co. to discover what these tiles were used for. The tiles might have been used for basement extension. I did not furnish the tiles, only the glass. They sent for a bushel of bull's-eyes sometimes, and sometimes they sent the plates and we inserted the glass, and they came and got them again.

Q. Look at the entries of work furnished for Wagner & Pfeiff, from November 1881 to April 1883?

A. Wagner & Pfeiff is exactly the same as Mr. Burnett. They furnished their own castings, and I sold them the glass all through Wagner & Pfeiff's work. We sold and set the glass; we sold the glass for so much, and set it for so much.

Q. There is one item in that account, under date of November, 1881, platform contract; do you know what that platform was adapted for, or intended to be used for—Wagner & Pfeiff?

A. I don't remember what we did a platform for Wagner & Pfeiff. If it is a Dale light, we had to send to Dale, and Dale glazed it, and we say glazed platform, so many feet. We don't state what light it is; but Mr. Wagner lays his own work. I have no knowledge in regard to the character of the platform under date of November 1882 to Wagner & Pfeiff.

Q. Under the account of Wagner & Pfeiff, December, 1881, there is tiles and frame, 13 feet 8 inches; did you furnish the frame in that instance?

A. I don't remember what we made any tile. It might have been a loose vault cover. I have no recollection of that. Mr. Wagner did all of his own laying.

Q. And the entries which simply read "tiles" in the account of Wagner & Pfeiff, you don't know what those tiles were adapted for?

A. If it was tiles, they furnished their own tiles and we simply furnished the glass. The tiles were sent to us, and we inserted the glass and they took them away. I don't know what those tiles were to be used for. I don't know anything about it.

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Q. In the account of Wagner & Pfeiff, there are 13 tiles or risers, 96 feet 8 inches, charged?

A. Don't it say glazing there?

Q. It does not. Do you know what they were to be used for?

A. I furnished no tiles to Wagner & Pfeiff; we only glazed for them. That is June, 1882. In June, 1882; there are side lights—right and left—charged to Wagner & Pfeiff; they use them for different purposes. They use them for side lights in building, and in a wall to show light. For instance, in a dark room—the side lights. Those kind of lights were not adapted for horizontal lights. In Governor Huffman's house, I did up all the side, from the bottom way up to the top , to get light in his hallway; all through the side way. These side lights are not adapted to be used horizontally for areas for basement extension—they could not be. I don't know but that some of the plates in which I inserted the glass for Wagner & Pfeiff were used for basement extension. In the entry in the order book to Althaus & Co., December, 1881, the entries read, "door frame for 355 Broadway; contract. Two pieces Althaus tile for Park and Thirty-seventh street, 36 feet; floor lights and skylights, 100 Broadway." None of those items were for work done for basement extension or area extension. In their account of July, 1882, there is platform, 178 Fulton street, Althaus. I remember that; that is an area covering; that is, a front wall with a coping on the top, the same as all areas are.

Q. How far from the building line did this area line extend; that is at 178 Fulton street?

A. The area line extends—I could not tell exactly—but about 3 feet 6, I guess or maybe 4 feet. There are either pillars or piers to support the building between the area and the basement proper. I did not notice the dimensions of the pillars or piers.

Q. You call the work, which you furnished Althaus & Co., in July, 1882, at 178 Fulton street,

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are work, because the illuminated tiling did not extend to the outer edge of the sidewalk line; is that it?

A. Between an area and a basement extension is just as much difference as between day and night; an area is where comes a front wall, and on top of that sits a coping that might be 4, 5, or three feet from the building.

Q. And you call it an area extension because it does not extend to the outer edge of the sidewalk?

A. It does not extend like Mr. Hyatt's patent; the area covering is patented in 1845.

Q. You call the work, done at 178 Fulton street, area work, because the illuminated tiling does not extend out to the outside edge of the sidewalk?

A. The tiling has nothing to do with it because there is a wall there and not an extension.

Q. A wall at the further end of the building?

A. There is an area wall within 3, 4 or 5 feet from the building.

Q. The work furnished by you to Royer Bros., December 1881, January, April and May, 1882, the entries are for tile, 374 feet 7 inches; 36 feet, 10 feet, 14 feet 3 inches; did you furnish the plates in that case?

A. For Royer Bros., I furnished the plates; he makes the plates himself, and inserts it himself; I made the plates and inserted the glass; I do not know what those plates were adapted to be used for; for all Royer's work I furnished the plates and the glass, and he made his own frames, and set them himself where he pleased; they might have been used for basement extensions for all I know.

Q. The entry to J. B. Snook, December, 1881, new plate, 8 feet. Did you furnish the frame and glass in that instance?

A. It says plate; it might have been tile broken, an old job; I have no knowledge in regard to that, except by looking at the books.

Q. The entry to E. L. Cook of Buffalo, December, 1881, for platforms, 108 feet; did you furnish the frame and tiling?

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A. I furnished the whole thing; those platforms were used for area covering, and the 5 platforms following (Cont.) were for area lights, too; they might be set in a wall, too, at the same time; we delivered those 5 platforms; the entry June, 1872, platform, 76 feet 3 inches, that is an area cover; these were all inserted in Wright's building in Buffalo.

Q. How far did the area extend from the building line?

A. I can't tell exactly; out in Buffalo they run areas 2 feet 6, 3 feet, and 3 feet 6; may be more; I do not remember how far they extended in the case of Wright's building in Buffalo; I could not tell that exactly.

Q. In the entry to Ford & Stewart, December, 1881, two platforms, contract, one extra platform 77 feet; what was the character of that work?

A. That is an area covering, I believe, at Oneonta, near Albany, New York; I do not know how far out the area line extended from the building line in that case; I can't tell exactly to an inch; I guess about from 3 to 4 feet; might be more.

Q. And the entry N. J. Ford, December, 1882, platforms, contract?

A. This is the same place and the same kind of work.

Q. How far did the area extend from the building line in the case of work done for N. J. Ford?

A. The same as the other, about 3 or 4 feet. I furnished all the work in that case, and put it down in the case of Ford & Stewart.

Q. What was the character of work entered to T. Willihan, 2 platforms, contract?

A. The same thing: area work. The area extending between 3 and 4 feet from the building; I don't know about the building line; that I can't tell. I delivered the work in that case; and the entry to L. E. Ireland, one platform, 47 feet; the character of that was the same: area. I delivered the work in that case.

Q. What was the character of the work done for

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E. Conkling, December, 1881, 2 platforms, contract?

A. I will have to look at the book to see what that is. I don't know anything about it.

Q. In the entry to P. Irebacker and Davis, December, 1881; 7 platforms, 210 feet; what was the character of that?

A. That was area covering.

Q. How far did the area in that instance extend from the building?

A. I don't know. We furnished the work; furnished the frame, and the tiling; they laid it.

Q. In the entry to S. B. Ferdon, December 1881, January 1882, and April 1883, did you furnish the work for him?

A. That is a mistake. I never did any work for Ferdon in Philadelphia.

Q. Where did you do the work for him?

A. We did the same work in several places in the city of New York.

Q. What was the character of the work you did for them?

A. 635 Broadway, contract. That is an area covering, February, 1882. The area extended in that instance from the building, I guess about 4 feet.

Q. What other work did you do for him?

A. That is all that I remember now, We did a great deal of small work for him—private stops, not area covering.

Q. Where did you do that work?

A. For instance under a stoop in a private house where you go into the basement, and under the stoop they generally put a piece of light in there about 2 feet square to hoist up the ashes. A good deal of that work we did there.

Q. Was there any other kind of work that you did for Ferdon except what you have given?

A. I can't tell here now without looking at the book. I don't remember.

Q. In the entry of "John Curry, December 1881, and June 1882," what was the character of that work?

A. That is 553 West Fifty-fourth street. I don't remember.

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Q. Was any of the work which you furnished to Stephens between January 1882 and June 1882 adapted for area light or basement extension?

A. I know nothing about it, I have only furnished the tiles. They might have been used for basement extension lights. In the work furnished to Thomas H. Burns, December 1881 to 1883 (that is all area work; the whole of it), we furnished it all. I can't remember the streets now where it was used. In that case the area did not extend to the outer line of the sidewalk; it extended to the sidewalk. The city allows so many feet in the front of your building for an area; when you get beyond that you interfere with the city property. In that stoop there it all depends on the street. When the street is 10 feet wide you get a narrow area; if the street is 100 feet you get a wider area. In this once instance, I believe, this went over 2 feet 6. It was a very narrow street.

Q. In the work furnished to Johnson & Bros., do you know what that was adapted to be used for?

A. If it is 9 tile, it is glazing. They furnished the castings, we inserted the glass. I can't tell without looking at the book. I do not know what that was adapted for.

Q. Look at the entry in your new ledger, under date of August 23d, 1882, work done for the Aldrich estate, covering area 25 Murray street—in what sense have you used the word "area" in that connection?

A. Well, it is an area; that's the proper name; I do not know the number of feet furnished. How far from the building line the tiling and frame work extended, I couldn't tell, exactly.

Q. Did the basement extend out to the coping on which the tiling rested?

A. The same as all the rest are.

Q. You mean that it did extend out to the coping on which the tiling rested?

A. Well, first comes the piers, and there are openings in them to go out in the area. If the room, or apartment, beneath

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the tiling, extends out to the curb line, it would still, in my opinion, be an area, that's to stand out to the area wall, if it stands on the curbstone. Illustrated by this room—(supposing this room represents the basement of the building)—if it had a wall like that between the basement and th area line, then there would be no basement extension. If that entire wall was taken away, and pillars for support put there, there would have to be something suspended to make it a basement extension, and if the pillars are there to support it then there is an area. Now, if the wall rests right on here and they cut a hole out, for a coal hole, that's an area; suppose they put four posts in there, then if it's clear all the way through with the four columns, then that's a basement extension; when there's a wall, and just a hole cut in, why that's an area. If they had four iron posts, one foot in diameter, that would be a basement extension.

Q. How was the front wall of the building, 25 Murray street, supported, in the neighborhood of this area?

A. What do you mean by that?

Q. The front of the building, 25 Murray street—as you entered into what you call the area, how was it supported?

A. That building is supported by column or granite piers. How thick these columns or piers were at 25 Murray street, I never measured. I can't tell how many there were. Referring to the entry of October 4th, 1882, work done for the same estate, covering area 32 Warren street, the character of that work was about the same construction. I can't tell whether there were piers or columns, in that building to support the front wall. I can't tell how many of them there were. I do not know how thick they were. I do not know the number of feet of tiling furnished; the amount charged was two hundred and ninety dollars. The work done for the same estate, under the date of November 24th, 1882, covering area, 27 Murray street, was the same construction; their buildings are almost one

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construction. I do not know how many square feet were furnished in that area—furnished in that case. It was contract work. I don't know the price paid.

Q. Were there piers or columns, in that case, supporting the front walls of the building?

A. The same construction as the other buildings. I do not know how many piers or columns. The work done for the same estate, under date of December 11th, 1882, covering an area east side of Church street from Warren to Chambers street, and one pair of doors; the character of that work was the same construction as all the rest. The front wall of that building was supported by piers or columns, I couldn't tell which. I can't tell how many, or the thickness. I don't know the number of feet of tiling furnished in that case. The amount paid was $1,930.

Q. What was the character of the work described as one pair of doors?

A. Sheet iron doors.

Q. Was there any tiling on those doors?

A. One end—there is a door I didn't make, because there is a patent on it; Tice & Jacobs made it—it's their patent.

Q. Did you put any tiling in the door?

A. It had to be a door, just as they said.

Q. Was there any tiling in the door?

A. Patent glass—their own patent—Jacob's patent.

Q. Were they folding doors?

A. Doors to open.

Q. Well, would they stand open this way—vertically?

A. Going over this way; and, when these doors were horizontal, they admitted the light into the room, or space, below. Through the glass, let light down the area. Neither I nor my firm put any glass or tiling in those doors. It's patented, and we can't make it. The character of the work done for the Aldrich estate, under date of January 20th, 1883, described as covering area 27 Warren street and 17 Murray street, was the same as the others—same way; all these buildings are

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constructed in one way. All those buildings had piers, or columns, to support the front walls; but I don't know how many columns, or how thick these columns, or piers, were. I can't tell; I don't know how many, or how thick they were. I do not know how many feet of tiling I furnished for 27 Warren street, or 23 Murray street, or 17 Murray street. I think this was all contract work; I am quote sure it was—most of it was contract work, because we had to give estimates before we did the work. I can't tell you what the price paid for work 27 Warren, 23 Murray and 17 Murray was. In the work for the Aldrich estate, about which I have been examined this morning, I, or my firm, furnished all the work, frames and tiling, etc., except one pair of doors and some other doors—sheet iron doors; we did all the rest of the work. It's on the same entry as this work here. We did not put any tiles in these sheet iron doors. Now, referring to the work done for John B. Cochran, September, 1882, that work was doors, glass, iron, and simply the plates. There's nothing to show for what purpose the doors were to be used. I cannot tell from the prices charged for such work what the plates were to be used for. There is no patent on selling single plates.

Q. Were the tiles adapted to be used for basement extensions?

A. I don't know, they could be used for a great many things; and among other things, they might be used for basement extensions. The work done for C. Vreeland, August 4th, 1882, covering area No. 30 West Twenty-third street, was the same construction.

Q. Was the front wall of that building supported by piers or columns?

A. I couldn't tell you; I don't remember now; I can't tell how many piers were there. I don't know how many columns, or how thick they were. The entry for work done for Vreeland in August , 1882, one "floorlight," 792 Broadway, was a light used in the

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interior of the building; a floorlight is used inside of a building; it can't be an area light. I do not know what floor of the building that was used on. That, I can't tell—sometimes on the first and second.

Q. What was the character of the work done for the said Vreeland, October, 1882, on the building in Fifth avenue, between Thirty-eight and Thirty-ninth streets?

A. That's a patent of itself; I couldn't do that; that's another party had a parent on that work, and got it. They furnished the glass, and set it in; that's because they have a special patent on that. That work was done down in an area, on Fifth avenue—a private house stands back some ten or twelve feet, and they turned it into a store, and tore the stoop down; there is a light on the wrong premises. The city can't charge for walls, because it's on the wrong premises. The Dale Tile Company furnished that work; they have a special patent. We didn't put the light in; they put the light in. In December, 1882, there are two regular tiles and one plate charged to Vreeland. I don't know what kind of style of tiles they were. I don't know anything about these tiles; they might have been two old tiles. Sometimes we sell second-handed tiles.

Q. Do you ever remember selling to Vreeland any tiles which you didn't put in some building of his?

A. I don't remember what they were. Fifth avenue, between Thirty-eighth and Thirty-ninth streets, 76 square feet. This platform was used the same as the one already referred to in October, in an area. I am not sure whether I furnished the plates and glass in that case. I didn't make a memorandum. I think so; it is the same class of work. This work that I have entered as platform work, in December, 1882—October, 1882—furnished Vreeland, was what I call an area; and not a basement extension. Both of these platforms were not put down in the same buildings. They were between Thirty-eighth and Thirty-ninth streets; in the same

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block; I think there's some two or three buildings build between them; I can't tell for sure, in the same block between Thirty-eighth and Thirty-ninth streets. The front wall of those buildings was supported by piers or columns; otherwise, I think the front wall had arches cut through. I do not know the distance, or the space between the arches. I do not know how many arches there were; I can't tell. I do not know how many square feet were in the light or platform, furnished October, 1882. As to the work done for Vreeland, described as one vault light platform, 11 Vandewater street, I can't give you any information about that; I've got to see that.

Q. Did you furnish the tiles charged on January, 1883, against Vreeland—two regular tiles?

A. Now, I can't tell what that was—whether they were new tiles or old tiles. I don't know what they were used for. They can be used for a great many things—floor lights, roof lights and side lights.

Q. And, among other things, for basement extension?

A. Well, that's a poor basement extension—two plates. I never saw a basement extension laid that was covered with two plates. The work done for Vreeland, March 1883—vault light in the stoop 42 and 44 Wooster street; that was the stoop of an area. It don't light the space below the area. His boiler is build right up; there is just room enough for the engineer, on the front, to fire up.

Q. Did the area extend clear across the front of the building?

A. Part of it is covered by granite or other kind of stone; I think it is granite. The boiler is right below the lights, right under the lights. The boiler is built right under it. I do not know the number of square feet of vault light and stoop that I put in, in Wooster street. I can't tell; that is blank steps and light risers. I ain't quite sure, it's one of the two; I know there's some blank iron there. I don't know the number of square feet. There are no tiles there, at all—steps.

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I don't know the number of square feet of steps or risers with the glass in. I can't tell now the amount paid for such work; I can tell by the book. There was work done for Cook & Radley on the work in Fulton and Cliff streets, if it says glazing, then it's glazing. The work which I did in Greenwich street were two lights, Hubert and Greenwich streets. I can't tell exactly what those two lights were; it might have been two, four or six inch glass. This work is all square, you know; for instance, this table—I couldn't tell what they were for. As to the work done for E. J. Smyser, July, August, September, October and November, 1882, the character of that work is selling single plates—selling the tiles. I don't know what tiles were used; they can be used for any purpose; and among other purposes, they might be used for basement extension, the same as the other. I can't tell from the prices for such work, whether it was for basement extension or area lights, or not; the price wouldn't give me any clue; the prices are various, according to the thickness of the glass and iron. I couldn't tell from my price of selling the tiles to Smyser, whether the tiles were adapted to area or basement extension, or for other work.

Q. What was the specific character of the work done for Cook & Radley, August, 1882, described as concrete platform, Forty-third street and Ninth avenue?

A. Concrete is a special patent run by the Dale Tile Company; they contained illuminated lights; the platform was put down at Forty-third street and Ninth avenue over the area; I do not know how the front wall of that building was supported; I put the platform in place in the building; the work, done for Cook & Radley, in August, 1882, described as "one platform," at Forty-first street and Third avenue, is an area covering; I did the work; I do not know how the front wall of the building in that case, was supported; I can't tell it was so long ago; I can't tell exactly

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how far from the building the illuminated tile and framework extended; I can tell near—about three or four feet; it may have been more or less; the specific character of the platform (Steinway's) charged to Cook & Radley, August, 1882; I think is similar kind of work; I ain't very sure; I think it is concrete light; concrete light by the Dale Tile Company; I can't tell how the front of that building was supported; I believe that there were arches cut out; I am not sure about it; in that case I furnished the iron, if it was concrete; and the Dale Company inserted the glass; if it was not the Dale light, then I did the whole job.

Q. What was the character of the work charged to Cook & Radley, in September, 1882, described, "glazing Sixty-first street and First avenue, and two platforms?"

A. This glazing—it must have been that they furnished the material, and we furnished the glass; I don't know whether that was adapted to extension or area work, as it says glazing here; if they furnished the glass they did all the rest of the work, and set it in place; if it was glazing, we did the glazing, but not the tile lights; we can't do tile light; Cook & Radley put it in place; as to two platforms furnished Cook & Radley, September, 1882, that was an area covering; it was laid in Grand street; we did two jobs for Cook & Radley in Grand street—one down in South Fifth avenue, and one over on the east side, the other side of the Bowery; I forget now what street it was; I can't tell whereabout in Grand street the platform work was done. Ninety feet; I don't know how the front wall of that building was supported; by piers, or columns, or otherwise; I did all the work in regard to the two platforms.

Q. What was the specific character of the work done for Cook & Radley, in October, 1882, described as "steps," Forty-first street and Third avenue?

A. I can't tell anything about that.

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That's on the same job that the other is. We had Forty-first street and Third avenue; I think that's wrong.

Q. Can you tell anything about the glazing, or tiling, that was furnished Cook & Radley, in October 1882?

A. That's something. They furnished the materials and we inserted the glass. I do not know where it was laid; it says here Sixty-ninth street—I don't know that.

Q. That work which was furnished by you—the glazing and tiling—has it been used for basement extension work?

A. I don't know anything about it. I do not know whether the work I furnished Cook & Radley in November 1882, described as "glazing, Franklin street, and two risers," was used for area or basement extension work. I don't know where those two risers were used. I guess I did work in Franklin street for Cook and Radley. We glazed two risers—about six inches; it was on the corner of Franklin and West Broadway. The risers were used on the window wills and some of the door sills. I am not suer about the door sills; I am pretty sure on the window sills.

Q. Did they light any part of the building except the basement?

A. I don't believe I have ever been underneath; where we only do the glazing, we don't go around the building to look at it. As to the specific character of the work done for Cook & Radley in November, 1882, described as "platform and skylights, 37 East Nineteenth street," I don't know what this is, except I take it by the book here. It's a light which comes in the rear of the building. I don't know whether I set the platform described in that entry. As to what part of the building that was, front or rear—if it says on the book "skylight," it was in the rear.

Q. Did you do any platform work for Cook & Radley at 37 East Nineteenth street?

A. I can't tell.

Q. What was the specific character of the work

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done for Cook & Radley in November, 1882, described as work at 58 Spring street, 11 feet 3 inches?

A. That is an area covering.

Q. Are these piers or columns in the basement to support the front wall of the building?

A. I don't know whether there were piers or columns. I don't know how far from the building line the outer line of the area extended. I knew at one time. The usual way of areas. The work done for Cook & Radley in November, 1882, and described as platform lights, Franklin street and West Broadway, is area covering. We have got 191 feet here. I don't know what the number is. We took this off the book. I can tell by the book. There must be piers or walls to support a building, surely. I don't think there are any columns. It was piers and walls. I do not know how many piers there were, or how thick they were; I don't remember that.

Q. Do you know whether there were any walls in the basement to support the front wall of the building above the basement?

A. Why, there must be.

Q. It might be supported entirely by columns or piers, might it not?

A. I have not seen any columns there. What do you call a pier? I would like to have you explain to me what a pier means. A pier may run, in the usual language the building line—a pier might be ten feet, there might be an opening there and two feet only. Then there might be another pier of ten feet. Some call it a pier and some call it a wall. An original pier acts in the place of a column.

Q. In this platform work, 191 feet, at Franklin street and West Broadway, was there a solid wall in the basement between the basement proper and the extension with simply a hole or doorway cut in?

A. That I cannot tell you exactly.

Q. And how do you know this work was an area covering?

A. Here we come right to the drawing.

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I know it because it is in the area. There is a wall in front. Where I saw it is an area covering, the wall continued down from here (indicating). It does not run out under the sidewalk.

Q. How far out from the building line did the area extend in this work at Franklin street and West Broadway

A. I could not tell you within three or four inches. I guess it will extend somewhere about four feet. Areas are different sizes. I am positive that in this work at Franklin street and West Broadway, the area extended out simply to the area line and not under the sidewalk; there was no excavation under the sidewalk that I took notice of; not that I saw. I inspected this work myself when it was put down. It sets on a coping, and the coping it set on the wall. As to the work done in December, 1882, for Cook & Radley, glazing two inch lens tiles, they furnished the castings and we simply put the glass in. We did nothing more with it. I can't tell what that work was adapted for; there is nothing in the entry to show what it was adapted for. I can't tell from the price charged what it was adapted for. The work done in the same month, December 1882, for Cook & Radley, described as platform, Hubert & Greenwich streets, 140 feet, is an area covering, and another thing it is the Dale patent. Dale furnished the tiling there. It is an area covering anyhow; that I am positive of, the same as West Broadway and Franklin street, the same style of work. The West Broadway job is bull's-eye light.

Q. How far from the building line did the extension of area in that case extend?

A. It runs for about between three and four feet. I cannot tell exactly. As I told you before, they have a certain width in every street depending on how far they allow it to come out. I was there when it was put down; as far as I know, there is no extension under any part of the sidewalk; if it was an open area, of course I would have seen it; in Hubert

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and Greenwich streets, there are some piers and some party walls; how many piers, or how thick they were, I cannot tell; some make them different sizes; I think they were mason piers. I cannot tell how much wall.

Q. What was the specific character of the work done for Cook & Radley, December, 1882, described as three stoops, State street, 127 feet?

A. The stoops enter into a building. Now, by my reference, I think that each side of that stoop is open. I am not positive now. It is only a stoop over an area, to walk into a building. 127 could not be much of a stoop, I will see though.

Q. What was the specific character of the work done for Cook & Radley in December, 1882, describe as glazing six risers, 23 feet 11 inches?

A. They furnished the iron and we put the glass in; I cannot tell what those risers were used for, nor where; I have no entry on my books to show where they were used; I never inquired from Cook & Radley where they were used, or for what; if I had seen the balance of the work, I could tell if it was used for a basement extension or not, I cannot tell.

Q. What was the character of the work done for Cook & Radley in February, 1883, described as two lights, Hubert and Greenwich streets?

A. That is the same as we had before; it is all one job.

Q. Do the dimensions, namely 24 feet 9 inches, convey to your mind what specific work or purpose the two lights were used for?

A. That I cannot tell; it was just the same as the other. It is a single platform, two lights, an entrance into a store; we put down part of this work; it was a Dale patent. We put our part down, and they put their part down.

Q. Did you lay the two lights at Hubert and Greenwich streets, 24 feet 9 inches?

A. We did part of it; we put it in place in the building, part of it;

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we could not finish it; we put the iron in place in the building over the area. Take an area 25 feet long, and we put two plates there (indicating) two plates here (indicating), and two there (indicating) and that is the one building; it might have been in one part of the building, and it might have been in the other. These areas have lights going into a building. The platform where the people walk in here (indicating) has two plates four or five feet wide, then have another one, and another one, and so on.

Q. Did those two plates furnished in February, 1883, adjoin the platform of 140 feet furnished in December, 1882, for the same building?

A. They do not join as I explained it. There is one piece (indicating), here another one, and another here, and between them might be a stone or grating or whatever it is. Sometimes when they build only areas the man says he is not going to put lights in. He will put the stone in. When they come to look, they say, no; we will put the lights here, maybe two or three weeks afterwards. This work is all done to one building. I recollect the character of the work done to that building, we put in that light over the area; I can't say whether it was on this end of the building, or at the end of the building. The building may be 100 feet—may be here a piece, and a piece on the other end. I cannot tell whether it was in the center or the end; I don't remember.

Q. Did these two files furnished in February, 1883, have any connection with the platform furnished in December, 1882?

A. I don't know. As to the work done for Smyser, in July 1882, described as glazing eight tiles and four risers, 56 feet 6 inches, we furnished the tile and risers; what they were adapted for, that I cannot tell. It might be used for basement extension work, and it might not. I did not lay that work. I never inquired from Smyser what these tiles and risers were used for. The specific character of the work done for

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Smyser in August, 1882, eight tiles, was the same thing.

Q. Could that work have been used for basement extension?

A. It don't know, sir. So far as the entry shows it might have been adapted for basement extension, and might not. I never inquired from Smyser what those eight tiles were used for. The work done for Smyser, September 1882, described as six lights, 42 feet 9 inches; seven risers, 18 feet 5 inches; nineteen tiles, 130 feet 11 inches, in all 192 feet 1 inch, was the same as before, glazing and tiling. So far as the entry shows that work might have been used for basement extension work and it might not. There is no patent on tiling. I do not know what that work was used for. I never inquired from Mr. Smyser what it was to be used for, there is no patent on that.

Q. If that work was put into a basement extension, would it not be covered by the patent?

A. That would go on that part that makes the balance of the work, to cover a basement extension. Tiling, anybody can sell. It has been sold for the last fifteen years. In my opinion, the liability for infringement on the patent would be, not on the person furnishing the tiling, but on the person laying the tiling in the basement extension. The work done for Smyser in 1882, described as making four tiles, three risers, in all making 21 feet, was the same thing. It might have been used for basement extension work, and it might now, as I have said before. It is the same thing. I do not know what it was used for. I did not inquire from Mr. Smyser what it was to be used for, there is no patent on it. The work done for Smyser, in November 1882, described as two tiles, 25 feet 5 inches, was the same as the other. It might have been used for basement extension, and it might not. I don't know what they might make out of it. I never inquired of Smyser what it was to be used for.

Q. What was the character of the work done for

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S. J. Creswell in July 1882, described as nine two inch tiles, 82 feet 6 inches?

A. That is the same thing as Smyser furnished. The same thing furnished twice, only those tiles might have been used in basement extension, and they might not. I did not lay them. I never inquired from Mr. Creswell what they were used for. The work done for Mr. Creswell in July 1882, described as fifteen tiles, 104 feet 4 inches, was the same as before. We only furnished the tiles, they might have been used for basement extension, and they might not. I never inquired from Mr. Creswell what they were used for. The work done for Mr. Creswell in July 1882, described as two tiles, 14 feet 2 inches, was the same as before.

Q. Could they have been use for basement extension?

A. I don't know, they are the same as the other. I never inquired from Mr. Creswell what they were used for. As to the work done for Creswell in August 1882, nine tiles, 54 feet 1 inch, my answer is the same as before. They might have been used for basement extension, and they might not. I did not inquire from Mr. Creswell what they were to be used for.

Q. What was the character of the work done for Creswell in September 1882, described as twenty-eight tiles, 195 feet?

A. My answer to that is the same as before.

Q. Could that work have been used for basement extension?

A. It might, and might not. I never inquired from Mr. Creswell what it was to be used for.

Q. What was the character of the work done for Creswell in October 1882, one tile 12 feet 9 inches?

A. That I answer the same as before.

Q. Could that work have been used for basement extension?

A. It might and might not. I never inquired from Mr. Creswell what it was to be used for. The character of the work done for Creswell in November 1882, described as twenty-six tiles, 175 feet, was the same as before.

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Q. Could that work have been used for basement extension?

A. It might, and might not. I never inquired from Mr. Creswell what it was to be used for. The character of the work done in February 1883 for Creswell, described as eight tiles, 66 feet 10 inches, was the same as before.

Q. Could that work have been used for basement extension?

A. It might, and might not. I never inquired from Mr. Creswell what it was to be used for.

Q. What was the character of the work done for A. J. Campbell, August 1882, 36 and 38 Barclay street, 61 feet?

A. Well, I don't know. I think that was a fire job. I will see about that. When I saw a fire job, I mean after there had been a fire on the premises.

Q. What was the character of the work done for Campbell, November 1882, described as platform, O'Neil, Sixth avenue?

A. That I will have to see. I don't believe I was in town when that work was put down. I believe it is a vault cover.

Q. What was the character of the work done for Campbell in December 1882, described as platform, Pearl and Dover streets, 379 feet 4 inches?

A. I think that we accounted for. If I had not, I should take it out, because it is not a basement extension according to Mr. Hyatt's patent. I accounted for it, though. If I accounted for it, it was probably basement extension work, according to your construction; we put it in, but it is not according to Hyatt's patent. That is accounted for.

Q. What was the character of the work done for Campbell, December 1882, described as 5 tiles, 57 feet 2 inches?

A. That I cannot understand. I think it is glazing; I will see that on the book, if it is 5 tiles it is glazing done with Campbell. The work done for Campbell, December 1882, described as platform, Thirty-sixth street and Third avenue, is an area covering, partly done by me and partly done by the Dale Tile Company. We laid the iron. The Dale Tile Company laid the glass in it.

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Q. Were there piers or columns in the basement to support the front wall of the building in that case?

A. I do not believe I ever looked at the inside of the building. I was inside the building, but I don't remember it.

Q. Was there any excavation under the sidewalk in that case?

A. Not as I know of. If there was an excavation under the sidewalk, I would have known it. I would have been it, if it was an extension. There might be an excavation for a coal hole. The area extends about 4 feet and might be an inch or two more or less, from the front line of the building. There was a solid wall without any opening except possibly for a coal hole. I remember being inside of that building, Thirty-sixth street and Third avenue, I went in the basement several times.

Q. What was the character of the work done for Blake, McMahon & Co., in August 1882, described as 1 platform, 23 Great Jones street, 132 feet; 1 platform, 18 University Place, 88 feet?

A. It was partly done by me and partly done by the Dale Tile Company. I laid the iron work of the platform in Great Jones street, there was no extension under the sidewalk in that case. From the building line the extension extended between three and four feet, then there was a solid wall, I can't tell you how the front wall of the building was supported; whether by piers or columns in the basement. I was in the basement of 23 Great Jones street, but I cannot remember now whether it was supported by columns or piers. I laid the platform at 18 University Place.

Q. Was there any excavation under the sidewalk in that case?

A. That I have not seen. I have not been in that building. The work was done for Peter Dugro, December 1882, described as 6 tiles, might be used for basement extension and they might not. I do not know where they were used nor what they were used for. I never inquired from Peter Dugro what they were to be used for.

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There is no patent on tiles, anybody can make them.

Q. If those tiles had been laid in a basement extension, they would have been covered by Hyatt's patent, according to my construction, if the rest of the work complied with it. It says here "contract"?

A. I do not know the dimensions of those tiles, nor the price paid for them, the price don't tell what they were to be used for. The fact that it was contract work does not suggest to my mind what the work was adapted for.

Q. What was the character of the work done for S. J. Lincoln & Co., September 1882, described as glazing two regulation tiles, 13 feet 10 inches?

A. Mr. Lincoln furnished his own castings. All we did was to furnish the tiles. He sent his castings to New York and we put in the glass and sent them back again. Those tiles as glazed by me might have been used for basement extension and they might not. We had no occasion to inquire from Lincoln & Company what they were used for, for glazing and selling tiles, there is no patent. Lincoln & Co.'s address is Hartford, Conn. The character of the work done for Lincoln & Co., December 1882, described as glazing 40 regulation tiles, 126 feet 2 inches, was the same thing. We furnished the glass as before. Those tiles as glazed by me might have been used for basement extension work and they might not.

Q. Did you ever inquire from Lincoln & Co. what they were used for?

A. We had no occasion to inquire. There is no patent on glazing tiles.

Q. If those tiles as glazed by you, had been laid in basement extension, they would have been covered by Hyatt's patent, according to your construction, wouldn't they?

A. If the man did the balance of the work to it, yes, sir. It tales a great deal more than tiles to make a basement extension.

Q. If a man did the balance of the work, what do you mean? Do you mean if you or they did?

A. We did the whole work. Suppose that was

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basement extension that they applied these plates to in Hartford, then they are liable for it.

Q. What was the character of the work done for Burnett & Co., in August 1882, described as glazing 4 tiles, Twenty-ninth street and Fifth avenue, 40 feet 9 inches?

A. I don't think I did anything there at all. I think that is the Dale tile. Mr. Burnett furnished all his own castings and puts them in place, and I believe the Dale Tile Company glazed it. It is a patent from Dale that I can not do. I do generally Burnett's work, and I do it also when he has anything in Dale's. I go to Dale and have it done and I send him the bill as Dale has got the special patent on it. I have not done it in there. It must appear on the books as done by the Dale Tile Company.

Q. What was the character of the work done for Burnett & Company, September 1882, described as glazing six tiles, 36 feet and one inch?

A. Mr. Burnett furnished his own castings and sends to our shop or to anybody who does the cheapest glazing to furnish the glass; he calls for them, and wherever he put them, I don't know; I did the glazing in this case; he pays us to put it in a building; we don't know anything about it; we set the glass in here; we did the glazing at our shop; I do not know what those tiles as glazed by me were used for; they might have been used in basement extensions, and they might not; I never inquired from Burnett and Company what they were used for, I had no occasion to; the work done for Burnett and Company, October 3d, 1882, described as glazing steps, risers and tiles, 16 and 18 Greene street, 170 feet 3 inches, was the same thing; we only furnished the glass; Mr. Burnett does all his own work, we did not lay those.

Q. How is it that your entry reads "16 and 18 Greene street"?

A. I suppose it was on the ticket where to go; we sent in our bill for glazing; I am positive we did not lay that work; I never laid any work with Burnett; he does all his own; we did the

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glazing; I am positive we did not lay the work; we did the glazing at our shop, and not at 16 and 18 Greene street; when Mr. Burnett sent the tiles, he had a ticket on the tile so the men would know where it was to go; that work might have been used for basement extensions, and it might not; I never inquired what it was used for; I never inspected the premises 16 and 18 Greene street.

Q. What was the character of the work done for Burnett & Company, October 5th, 1882, described as glazing platform, 628 Broadway, 197 feet and 9 inches?

A. That is a Dale light. Mr. Burnett put all the iron work done and the Dale Company went up there at the building and put their glass in. I did not do anything to that; it was charged to us by the Dale Tile Company, and we charged it to Burnett; of course we have a little per cent. profit on it.

Q. What was the character of the platform at 628 Broadway?

A. I don't know; I never inspected the premises; that was not my duty; I don't know whether the platform covered a basement extension or not; I don't know anything about it; I never inquired of Burnett & Company.

Q. What was the character of the work done for Burnett & Company, October 13th, 1882, described as glazing, 16 and 18 Greene street, 71 feet 8 inches?

A. That is the same as before, on 16 and 18 Greene street. Mr. Burnett furnished the castings and we simply set the glass in the shop; the tiles as glazed by me might have been used for basement extension work, and they might not; I never inquired from Burnett & Company what they were used for; we had no occasion to inquire; I never inspected the premises, 16 and 18 Greene street.

Q. What was the character of the work done for Burnett & Company, October 18th, 1882, described as glazing, 33 feet 2 inches, 16 Greene street?

A. That is the same as the other; I will explain that. One day they might bring two tiles, and in a couple

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of days they might bring two more, and next week three or four more; that is the reason that is apart; it is all one thing for the building.

Q. Could these tiles glazed by you have been used for basement extension?

A. I don't know; I never inquired what they were used for; the work done for Burnett & Company, October 19th, 1882, described as glazing, 15 feet 4 inches, 16 and 18 Greene street, was the same as before; those tiles as glazed by me might have been used for basement extension, and they might not.

Q. You never inquired what they were used for?

A. No, sir.

Q. What was the character of the work done for Burnett & Co., October 20th, 1882, glazing 283 feet 1 inch at 688 Broadway?

A. I did not do any glazing at all; the entry is "done by the Dale Tile Company;" there is no number of feet; the Dale Tile Company charged it to us and we charged it to Burnett & Company; that is all we had to do with that building.

Q. Could these tiles as glazed at your request by the Dale Tile Company have been used for basement extension work?

A. I don't know, sir.

Q. You mean they might and might not?

A. I don't know, I have not been to the building at all; I never looked at it; it might and might not, yes; I never inquired what they were used for; I have not; I have not done a single thing towards it; I have not furnished any castings, iron or glass or anything; it was simply done by other parties; I could not do it because it was on another patent; I had to get it done by the patentee and the rest of the work Mr. Burnett done himself; so I did nothing at all towards it; I received payment for the work from Burnett & Company; I generally get my castings done there, and that is the reason he gives me this work to do; I make a little percentage on it.

Q. What was the character of the work done for

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Burnett, November 1882, described as glazing give regulation tiles?

A. That was glazing tiles.

Q. The last entry about which you were examined was the entry of work done for Burnett, November 1882, glazing five regulation tiles; that should read seven regulation tiles, should it not?

A. I don't know without my books; I don't know who we delivered those tiles to or for what purpose they were used; they bring them themselves and get them themselves; I don't know where they go to.

Q. They could have been used for basement extension work?

A. I don't know what they were used for.

Q. What do you call regulation tiles?

A. I don't know what that work is "regulation tiles;" I don't understand that; they are all regulation tiles.

Q. In some places in your books, you have used the word "tiles," and in some placed the words "regulation tiles;" do they both mean the same thing?

A. I don't know.

Q. Did you never hear of the expression "regulation tile" before?

A. No, sir; not regulation tiles.

Q. Where you have used the expression in your books so many "reg. tile," what do you understand it to mean?

A. I don't know what that should mean; I can't answer that without the books.

Q. Does the contraction or abbreviation "reg.," as used in your books mean regular tiles?

A. I don't know; the bookkeeper can explain that; I cannot; he put that there.

Q. From your experience and knowledge in the business, do you know of any tiles known to the trade as regular tile or regulation tiles, or anything that could be denominated by contraction, "reg. tiles"?

A. I don't understand that, they are all called regular tiles, size so long and so wide; that regular tiles can go anywhere.

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Q. What is the size of a regular tile?

A. They come all sizes, two feet long, four feet, six feet, seven feet long. Every building is different, has different openings; every time made is known as a regular tile; of course every tile is made regular. They are all regular tiles. They are all made regular tiles as I understand it. Every tile sold by me was a regular tile some shape or another. Some are triangular, square, round, all shapes, and all shapes would be regular tiles; we call it regular tile—I do; all tile is regular else it would not answer.

Q. There is no kind of tile, then, that is made and known to the trade otherwise than as regular tiles?

A. They are never used. They must be regular tiles else they cannot be used. You can't use irregular tile. In using the term "regular," I don't mean regular relating to the form or shape of the tile or to the size. Regular tile must be square or parallelogram.

Q. While an irregular tile would be an irregular form, is that your idea of it?

A. No; it must be a regular tile, else it can't be used. You can't use an irregular tile. It must be a tile before it can be used, and when I use the term "regular" it must be a tile and a regular time before it can be used; if there is any use of the term regular in my business as relating to tiles, it does not relate to the size or shape.

Q. Then, what signification has the "regular tile" to you?

A. Well, that is a word they use. Regular tiles; regular plates.

Q. Has it any signification in your business?

A. I don't know; they are all regular tiles.

Q. An entry in your books, Mr. Mark, showing so many tiles and an entry succeeding it, so many regular tiles; what is the distinction between the two?

A. No distinction at all. The bookkeeper might so mention one kind of regular tile, but they are all regular tiles.

Q. When in your book you find the entry "five regular tiles," or, as I think it should be, seven

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regular tiles, sold to Burnett & Co., November 1882, what size do you understand these tiles so sold were?

A. I don't know until I see the book what size they were.

Q. Would the expression regular tile cover all tiles used in tiling work outside of illuminated vault hole covers?

A. That is regular tile too. There are regular tiles in vault covers. A vault cover is round. You can put a round and square tile in it. There are lots of them in New York; square openings; some kind of shape or some kind of glass. The expression "regular tiles" as known to the trade does not mean tiles to be placed together in a frame, they can be used anywhere without frames.

Q. Then these tiles sold to Burnett in November 1882 might, for all you know, have been used in basement extension work?

A. I have not sold any tiles to Burnett. I guess the books show "glazed tiles." I did not furnished the tiles themselves for Burnett's work. I furnished only glass. They furnished the tiles, what I got in the book there. The tile is the iron frame. The size of this iron plate, or its form or configuration, might be square or long. I don't know what it was. I don't know what these tiles or frames which I glazed for Burnett & Co. were used for. Anybody can glaze. There is no patent on glazing. I couldn't swear positively that they were not used for basement extension work, my books only show glazing.

Q. Now, in the entry of work done for Burnett & Co. in November 1882, platform, 628 Broadway; did you do the entire platform work, or simply the glazing?

A. I did not do anything. I am very sure No. 628 Broadway is a Dale light, a separate patent. I did not do anything towards it.

Q. How does it appear on your books?

A. On our books, we take contracts for several things and give them out to other parties. To make this concrete is a special patent. Nobody could make them

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at that time but the Dale Tile Company. I have not done a thing to that.

Q. Did you take the contract for the work from Burnett & Co.?

A. Only the glazing.

Q. That is all your firm did?

A. We did not do the glazing at all. We took the contract and turned it over to the patentee, as you find it customary in all business where patent comes into a contract, the manufacturer has to go to the patentee and buy and get it made some way there. I had to go to the patentee and get it made. The entry I have in the books says simply "platform, 628 Broadway." It is glazing. Platform is left out, because Mr. Burnett does all his own work in castings. I don't know the character of the platform; for what it was used. A good deal of glazing is done by the Dale Tile Company and I never see it. We give the orders to them and they go and do it.

Q. Is there any entry in your book to show that this particular work was sublet by you to the Dale Tile Company?

A. No, we give an order—when we get it, we send the order to the Dale Tile Company. I don't believe it is in the book, only when the Dale Time Company sends the number of feet—the bill for the work done. I have no entry in my books for that work was done by the Dale Tile Company. I guess the order shows. I don't know whether there is a written order given or not. Sometimes we go and tell it by the telephone. My books don't show that as I had nothing done there, I took the contract and turned it over to other parties.

Q. Do you know of your own knowledge that the books or papers of your firm would not show that kind of a platform or for what it was used, which you glazed for Burnett & Co., in November 1882 at 628 Broadway?

A. I did not glaze any. I sublet it to the patentee, the Dale Tile Co. My books and papers would contain no information in regard to the character of this platform or for what it was used. It don't state the shape. It states the length

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and width, so many feet, as the bill sent by the Dale Tile Company to me. So many square feet glazed. I send a bill to them, so many square feet glazed. Well, you can call anything a platform, anything is a platform that you stand on, or walk over.

Q. What was the character of the work done for Burnett & Co. in November 1882, glazing 94 feet, 628 and 630 Broadway, New York City?

A. I can't tell anything about it until I see the books. That might have been the same work as this other. You can't tell. We went over that once before the 658.

Q. You did a lot of work at 628 Broadway, did you not?

A. There is a front and rear. We don't it several times. Can't be a lot of work in one number of a building. I don't know that these tiles glazed by me for Burnett & Co. have been used for basement extension work. They might and might not. I did not inquire what they were used for.

Q. Now, the entry of work done for Burnett & Co. in December 1882, tiles and steps, 136 feet 7 inches of glazing?

A. We simply furnished the glass. We don't furnish any other work. I don't know where that work was used. I don't know how many steps I glazed; the books might show how many feet; I don't know if it will show how long the steps were; it depends on the bookkeeper; he might put it in and might not; he might only mention so many feet; I did not keep any book in my business in which the character of the work that I did was specifically described; a shop book was kept; measures put down to see how many glass there were. That shop book would not describe pretty accurately the character of the work done; I don't know whether it would show the number of steps glazed—the dimensions of those steps; it might only say so many feet; the shop book is here; the books described all kind of work; I have no other; I can't describe them. All these books were kept by my bookkeeper.

Q. Now, the book that I call for is the shop

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book, the one kept by the foreman or other person in the shop where the work is done?

A. I haven't one; I never had any such book as that kept; I have no foreman; I had a pattern shop but had no foreman over the pattern shop; Mr. Ackerman never was foreman of my pattern shop; he was in my employ as a workman—mechanic. His duties were to work on the bench, and do whatever he was told to do by me, or by my son. There was no return in writing made from the shop of the character of the work done there, to my bookkeeper; there is no book kept for that. The character of the work done for Burnett & Company, December 1882, characterized as glazing 630 Broadway, 207 feet and 10 inches, might be the same light; in my opinion, it is the Dale tile light, though I can see as to that. I don't know that these tiles have been used for basement extension work; I don't know what they were used for; I don't know anything about it; my books would not show for what such tiles were used; I never inquired what they were used for, because it is none of my business.

Q. What is the object of tiling for platform work?

A. I don't understand what you mean.

Q. Hear the question read and see if you don't understand the question (question is read)?

A. I don't understand what you mean by that.

Q. Why should they tile platforms?

A. I should say a platform in front of a building is a platform. That is the way we hand it over. That is the way the tiling is put in a building, as Burnett puts it down himself, and the Dale Tile Company, I suppose, glaze it. There we say, platform glazed, because we don't know what it is. We say platform glazed, so many feet; I don't know why they glaze a platform; it is to admit light through the platform.

Q. On your previous examination, you were asked regarding certain work done for certain parties as appear by your books, which you were unable at

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that time to give any information about, but agreed to look it up. Since then a list of those questions has been made and delivered to you. Are you now able to give any information regarding any of those matters?

A. I have got some of them. Cook & Radley, January 1882. That is an area covering. it is what I claim to be an area. it is a certain space out from the building covered with glass and iron. Next is G. S. Lincoln & Co., September 1882. They furnished their own castings and sent to New York; all we furnished was the glass. I did the glazing only—furnished the glass and put it in. The entries to Lincoln that I was asked about, were November and December, 1882. The next is Wagner & Pfeiff, November 1881, platform. That is concrete manufactured by the Dale Tile Company. Our book don't show what I had to do with it. It says 3 inch concrete. Concrete is a patent by itself; no one can touch it. No one can make it but the patentee. We can't set it; can't put any glass in. My firm furnished the iron, and they sent word to us to put the glass in. We have regular customers; if the architect calls for the Dale patent, the iron men have got to put it in the building; of course, we do their general work, and they send to us to do that. They send word when they are ready to do the glazing, and we send word to the Dale Tile Company. They go to the building and do the glazing.

Q. In fact, you did nothing, then?

A. We make a commission on it.

Q. Read the whole of that entry, if you have it?

A. I haven't the book here. It says, Wagner & Pfeiff, November 1881, and June 1882. Now June, 1882; that is 13 tiles, glazing. They furnished the castings themselves. Generally the iron men do mostly, and we simply set the glass. They send them and they come and get them. The next is John P. Snook, December 1881. It says, new plate; that is repair work done in Franklin street. It states in the book, so much time, so much

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varnish, so much white paint, and so on; one inch plate, so much time; that is repair work.

Q. Glazed plate or iron plate?

A. It don't say.

Q. Do you furnish both, in your business?

A. Yes, sir. That I cannot tell where the plate was set. It says repairs on the book, in Franklin street; I do not know the number in Franklin street; I can get the number from the book. I did not put down the number of feet in that new plate. It says one plate; that was repair work. The next I have is E. Conkling, December 1881, two platforms; the two platforms constitute one area. That is all it says, two platforms. I have no entry regarding the number of feet. I mean an area covering, not an area. I can not give the number of feet in any way when it is done by contract. I don't have specifications—don't keep any papers in my possession showing the number of feet. When we get the plan, we take it off the plan and put it on a piece of paper and we write our estimate. We furnished this work according to the plans and specifications, so much. I don't see what you can tell by the prices.

Q. Can you furnish any estimate as to the number of feet?

A. I can see the book and give you the price, if you insist on it. I can not furnish any estimate of the number of feet approximately. The work is in Binghampton. The next is S. B. Ferdon—I find in my books two plates—two pieces of light, and stone cutting, ¾ of a day's time. That is what I find in my books. They must have been vault light plates, going into a sidewalk. No, it don't give the dimensions of the pieces of light either. I went over it all with the bookkeeper.

Q. Would you books show the dimensions of the pieces of light?

A. I had better look that up. This was two pieces of light; it don't state how set. It was set in an iron frame. It says only set in stone. I am not able to say that the work that was done was the furnishing of two plates and the cutting of stone.

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Q. Plates constitute the iron frame and the glass?

A. The plates; there is no frame to it.

Q. What do you mean to say when you say two plates—do you mean anything but the glass itself?

A. The iron plates and the glass into it; no frame; this was January 1882; there are two other dates that the book shows—repair work—nothing furnished but material; that is, putty, varnish, paint and so on; the way it looks, they sent to us the repair it; there was no illuminating tile in December 1881 or April 1883 that the books show; the next is John Curry.

Q. Did you sell him any illuminating gratings to go in front of the building; as I understand you correctly from your testimony, you did not sell him any illuminated grating to go down in front of the building?

A. I will have to see that; I thought that was answered; Johnson & Brothers, December 1881, January 1882, and March 1883; December 1881, the castings were furnished; we simply furnished the glass; January 1882, that is the same as 1881; casting were furnished by them and we set the glass in; April 1882, area covering, 330 Pearl street; we furnished the whole thing—covered the area; March 1883, area, Suffolk street; it don't give the number of it; the same thing as the other in Pearl street; next is Cook & Radley, August 1882, Forty-third street; I don't know the number; that is concrete light; we furnished the frame and the tiling, and the Dale Tile Company furnished the glass; that is called the Dale patent; that kind of work we cannot do; in August 1882, Cook & Radley, the same; Steinway & Son, Fourteenth street, the same as in Forty-third street; we furnished the castings and the Dale Tile Company furnished the glass; August 1882, again an area covering, Forty-first street; in that we furnished the iron and glass, and built the area covering; September 1882, Sixty-first street and First avenue, I haven't done anything to that job at all; Cook & Radley furnished the castings and laid the

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work, and the Dale Tile Company glazed it; I don't know the character of the work; I don't believe I have seen this job, as we did nothing towards it; there is no entry upon my books in connection with that work; we have this entry of glazing on our books; we have a small percentage on it; I don't know that it was basement extension work; I took no contract at all for that work; it is done by the square foot, the glazing; we received a bill from the Dale Tile Company and we sent the bill to Cook & Radley; I, nor my firm, did none of that work; the work done is the Dale Tile Company's patent; I cannot do that kind of work; and the reason I sent it to the Dale Tile Company was, because it was their patent; the next is October 1882, area, Forty-first street and Third avenue; that was for Cook & Radley; there I furnished the whole area cover; next is C. Vreeland, December 1882, vault light platform, Vandewater street; we furnished everything there; that was not a basement extension work; it was simply to cover a boiler house; the boiler is right under the sidewalk—under the area, and the wall is put up to the building line; it is no basement extension at all; the area goes away down to the sub-cellar; it is all built around with walls; the lights cover the area; they do not throw any light to the building; it covers the vault; there are illuminated steps there, and risers; it covers the vaults; the boiler is built in the area, right up under the lights; there are steps and risers, and a platform leading from the sidewalk to the first story of the building; the next is Wooster street, March 1883; the same answer as Vandewater street; the same thing done; No. 42 and 44 Wooster street; I cannot give the number of square feet, vault light, stoop in this entry; I cannot give the amount paid for that work.

Q. Haven't you any entry on your books to show, either the number of square feet, or the amount paid for such work?

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A. I guess it shows the amount paid. About these two constructions in Vandewater and Wooster streets. I would like to make an explanation of how they are constructed. There is an opening in the sidewalk of the building. Then a boiler laid right under the area light; inside the line of the building, there is a wall all built up; a solid wall, and this light is put over it. When I say inside the line of the building, I mean further in than the front line. Right from the front line there is a wall solid, no openings at all. This boiler is right under the sidewalk, between the foundation of the house and the outer edge of the sidewalk. That is covered over with an area light. We had to make these steps and risers, because they couldn't go down deep enough to get to the boiler. We had to make them so much higher. I have seen the house and superintended it. I have got one more. Burnett & Co., August 1882, glazing 4 tiles, Twenty-ninth street and Fifth avenue. I have not done anything towards that at all. Burnett furnished the castings and the Dale Tile Company put the glass in, and I received my commission. That work was done was the Dale Tile Company's patent. November 1882, glazing 5 tiles. Burnett furnished the iron and I inserted the glass. That was the knob light. There was no patent on that. I do not know where that was used, nor for what purpose. The next is platform, 628 Broadway; glazing platform 94 feet, 628 and 630 Broadway, in this city. That is one building. Burnett & Co. furnished the castings. They called for the Dale patent, cement light. Burnett put it down and the Dale Tile Company glazed it and I received my commission. That was the Dale Tile Company's patent work. The next is December 1882, tiles and steps, 136 feet in all. Glazing. That is, I done the glazing but they furnished the castings. That was for Burnett & Co. That is the knob light. There is no patent on that. I do not know what that was used for, nor where. December 1882, glazing 630 Broadway, 207 feet and 10 inches.

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That is, Burnett & Co. furnished the castings and put it down, and the Dale Tile Company glazed it, as it called for that patent. Blake & McMahon, August 1882, we furnished all the castings and put the castings down, and the Dale Tile Company inserted the glass. All the work was done under the Dale Tile Company patent. That is the case whenever the Dale Tile Company did work, in every instance. Where they did it for me, and where the orders come through me, it was for the same reason. That is in University place. There is one in Third street. That is the same thing. When I say that is the same thing, I mean that is the Dale Tile patent work.

Q. Do you remember any wok that you did at No. 40 Murray street?

A. That is not in my memorandum. Independent of that, I have recollection of having done work there.

Q. Do you remember the character of the work that you did there?

A. I can't tell without you specify the building; it was putting down illuminating grating in front of that building.

Q. Do you remember putting down any in front of the building?

A. I did all over the building; that is, all over the building where we had contracts; if I done any at 40 Murray street, of course I put illuminated grating there; I can't tell without looking at the books.

Q. Look at the paper now shown you and marked for identification Exhibit No. 2, Sept. 15th, 1887, and state whether that paper is one of the returns made by your firm, and if so, whether on that paper you find a return for anything at 40 Murray street?

A. I don't know anything about that.

Q. Is that a return made by your firm?

A. It is my son's writing; I don't know anything about it; I don't believe I ever saw the building; I don't know that it is a return made by my firm; I deny that I made that return; my son is in my employ; he is superintendent; this return is for the quarter ending May 1st, 1881; my son was in my employ at

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the time, in 1881; he was helping my partner in bookkeeping; I have never accounted for work under my license which I did not put down or lay.

Q. That you did not construct—that you put down?

A. I did not account for it; I never accounted for anything, I did not construct myself at the building or at the place where it is put down; I never rendered an account and paid royalty on merely glazing and not laying tile—where I simply did the glazing; I do not know the handwriting of this paper; that signature is my son's signature; I am familiar with Mr. Ingall's, my partner's, handwriting, but he is so long out of the business, I can't tell; I couldn't swear to it; it looks something like it; I wouldn't swear to it.

THADDEUS HYATT, called on behalf of the plaintiff, being duly sworn, testified as follows:

Direct examination:

My name is Thaddeus Hyatt; I am 71 years of age; residence at 51 Cranberry street, Brooklyn, and am by occupation an inventor; the last business in which I was engaged by the manufacture of patent lights of my own invention; I am one of the parties to the license and supplementary agreement heretofore referred to, and in evidence in this case; basement extension illuminating work is the sort of work that goes into the sidewalk and illuminates a basement, and where there is an extension it illuminates the extension; it is used in contradistinction to the term roof light or illuminating roods, which means over-head work; I was manufacturing from 1844 until near the war in 1860; a manufacturer of this kind of work; I originated the work and the terms that are used in the work, both; 40 Murray street is an example of

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basement extension work; that work is an illuminating stoop or platform over a sunk area and a sunk area is made to get light into the basement; and this work forms the stop or bridge from the traveled footway to enter the principal story of the building; that is one of the functions of the work; at the same time, it excludes rain and dirt; and where they choose to have it illuminate the basement, it illuminates it; in that case it illuminates through the sash doors.

Q. How far from the building line does the extension or area, or basement extend in that particular instance, No. 40 Murray street?

A. The basement itself is cut off from the area at 40 Murray street by the old sash doors that still remain there; but it gets its light from the area covering. It extends, I should think, in the neighborhood of four or five feet from the building line forward. There is a city ordinance that determines that. That is to say, where it goes up a step or so and becomes something in the way of the public. Where it is on a dead level, it can be extended further.

Q. Can you give any other instances of basement extension work?

A. The old vault still remains there and the area well is still there at 40 Murray street.

Q. (Repeated)?

A. Yes, at the northwest corner of Courtlandt street and Broadway. In the case of 40 Murray street, the wall of the building extending from the sidewalk line down to the cellar bottom is there as the building was originally built, just as it was built 50 years ago. There are doors in that wall, sash doors cutting it off from the area. The area is covered by my lights, described here as a plate, being lights set into iron frames, bulls-eye lights.

Q. In cement, or tiles?

A. In cement—coal tar sulphur setting around the glass. A knob is over the surface. It is called knob light work. The area wall is there still, and the fact of the doors being in that wall, through which the light passes into

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the basement from this light that is set in the stoop brings it within my patent. It is so stamped there. When I saw it extends out to the area wall, I mean this covering extends out. The coal vault is under the sidewalk proper.

Q. You were going to give an example in regard to Courtlandt street. I want you to give the examples without my putting questions as to each instance you can give of basement extension work?

A. At the northwest corner of Courtlandt street and Broadway, there is what I call a thorough basement extension, where they take advantage of my lights to get all they can from the corporation by having as much ground under the sidewalk as possible. It runs in the space under the sidewalk, five to seven feet under the street carriageway.

Q. You mean to say this covering runs past the curb?

A. The space underneath the sidewalk, or basement extension, does run out under the street. They do not allow it now. It was my first thorough basement extension. In that case, the lights run out some seven feet from the building line. It was all level. There are plenty of others on Broadway that do go seven feet, because the street is wide around the upper part; and Broadway is full of them straight up and down continuously—my basement extension work—on both sides. You can't go amiss without finding it. I might repeat that from Liberty street, right straight up, you can hardly miss a basement extension. Where basement extensions are constructed, and the grade of the street is not level, they make a stoop with steps—what is called the platform, forms the main part of the work up to the doorway or sill; and then there are illuminating steps—a tread and a riser. Each step is set with the bull's eyes or glasses, to illuminate them. Ingalls & Mark constructed the work—basement extension work, at 40 Murray street; they returned it in their returns for the quarter ending May 1st 1881, and they have stamped it with their own names, and according to

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the obligations of the license, they have stamped it "Hyatt's Patent Illuminated Basement" cast upon the iron. I can produce the paper (paper produced by Mr. Hyatt).

Paper offered in evidence and marked "Plaintiff's Exhibit 2, September 15/87, R. B. M."

Plaintiff's Exhibit No. 2.

QUARTER ENDING MAY 1/81

Illuminating basement extension sold for quarter ending May 1/81, by Ingalls & Mark, 5 Worth St., N. Y. C.:

Whom sold.	Where used.	Sq. feet.
Ed. L. Cook,	Pearl St., Buffalo, N. Y.,	48
E. G. Smyser,	Baltimore, Md.,	58
A. F. Brown,	4 Murray St., N. Y. C.,	67
Thos. H. Burns,	Newark, N. J.,	28	½
G. S. Lincoln & Co.,	Hartford, Conn.,	65
Cook & Radley,	New York City,	216	2/3
C. Vreeland,	" " "	41	¾
W. T. Day,	" " "	701
" " "	B'way.,	21	¾
Shapeley & Wells,	Binghampton,	143
Blake, McMahon & Co.,	N. Y. City,	12	¾
Cook & Radley,	" " "	94
Wagner & Pfeiff,	" " "	157	¾
E. G. Smyser,	Baltimore, Md.,	12
E. G. Smyser,	" "	42	¾

	Total	1016	½
	@ 30¢

	304	95
Less 1/2 retained in repayment of advanced money		152	48

Amount of check		152	48

JOHN W. MARK, May 7/81.

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City and County of New York, ss.:

JOHN W. MARK, being duly sworn, deposes and says, that the foregoing statement is true and correct to the best of his knowledge and belief.

JOHN W. MARK.

Sworn to before me, this
9th day of May, 1881.

LEONARD J. GIEGERICH,
[L.S.] Notary Public, N. Y. Co., (17).

The third entry on this paper is A. J. Brown, 40 Murray street, N. Y. City, 67 square feet; I see no other illuminating work at 40 Murray street than what I have described; I can produce such account or return; here it is (produces paper). I have seen Mr. Ingalls write for many years; I am perfectly familiar with his handwriting, during a period of thirty years; twenty years certainly. That is Mr. Ingall's handwriting. I know it as well as my own. The body of it. Mr. Ingalls is a defendant in this action; the date of that is February, 1881. All of these are illuminating tiles. The returns are "for illuminated basement extension roof tiles." The returns are for tiles. Ingalls & Mark made returns to me for an account and royalties on single illuminating tile, and illuminating tiles in distinction from construction work.

Q. Since the time they have had their license.

A. There is a paper (producing paper).

Paper offered in evidence and marked "Plaintiff's Exhibit 4, September 1887, R. B. M."

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Plaintiff's Exhibit.

DEFENDANTS' RETURN FOR QUARTER ENDING MAY 1st 1880.

Account of Illuminating Gratings sold and sent away from their place of business 5 Worth street, for quarter ending May 1/80, by Ingalls & Mark:

To whom sold.	Where used.	Sq. feet.
E. G. Smyser,	Baltimore, Md.,	14	1/3
James McKinney,	Albany, N. Y.,	29	2/3
Burnett & Co.,	New York City,	416	½
C. Vreeland,	" " "	151	2/3
Blake, McMahon & Co.,	" " "	37	2/3
Johnson Bro.,	" " "	72	1/6
Starr & Leadley,	Camden, N. J.,	39	1/3
W. T. Day,	New York City,	23	1/3
Hartford Foundry & M. Co.,	Hartford, Conn.,	136	2/3
Cook & Radley,	New York City,	58	1/3
Wagner & Pfeiff,	194 Chambers St., N. Y. C.,	207	5/6
W. J. Spaulding,	3 Nassan St., N. Y. City,	45

	Total sq. ft.	1232	2/3
As modified by an agreement		@ 30¢

	$369	80
Less 1/2 retained in repayment of advanced royalty as by an agreement made same day as license		184	90

Amount due		184	90

JOHN W. MARK, bookkeeper of the firm of Ingalls & Mark, being duly sworn, deposes and says,

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that to the best of his knowledge and belief, the above account is true and correct.

JOHN W. MARK.

Sworn to before me, this
24th day of November, 1880.

FRANK H. ANGIER,
Notary Public, New York.

I do not know the handwriting of that paper. I received this paper from Ingalls & Mark about the time it was for, the quarter ending May 1st, 1880. I swore that that came from Ingalls & Mark because I am an interested party in getting the money. My wife is the patentee and I am the inventor, and these royalties are Mrs. Hyatt's and I know when they came, and all about them. This paper was sent at the time when the money was paid. I could not tell at this moment whether Mr. Ingalls brought it in his hand, or not; but it was handed in and paid by him; I know that we accepted it. I do not know who handed it in. I never received any other account for the period covered by that paper. At the time of the receipt of that paper, the money was stated at the foot there. I do not know whether that money was paid in cash or by check.

Plaintiff's Counsel.—I will suspend the examination of Mr. Hyatt for a moment, and recall Mr. Mark.

Q. Whose handwriting is that, Mr. Mark (handing witness paper)? The signature and the instrument?

A. My son's signature, I guess, the body is in the same handwriting.

Paper admitted; previously marked.

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Mr. Hyatt continues:

Q. Did Ingalls & Mark ever make any return to you for an account and royalties on single illuminating tile or illuminating tile in distinction from construction work?

A. Here the returns are (reading from paper); Royer Brothers, three feet; Wagner Brothers, 8 feet.

Q. How do you make that out?

A. Three feet do not make a full area cover. It is only a tile. Area covering is made of tiles. The only means I have of getting at it is the size. The size tells what it is. It has been the practice and custom of Ingalls & Mark, the defendants, to render accounts to and pay license fees to the plaintiff under the license and supplementary agreement, for illuminating tiles, as distinguished from construction work. The returns are quarter ending February, 1879, returns 11 square feet; 8 and ½ square feet and 4 and ½ square feet. Those are tiles. In the returns for the quarter ending first of May, 1881, I find 12 and ¾ feet, and an item of 12 feet. Those are simply tiles. This is "Plaintiff's Exhibit 2, September 15, 1887, R. B. M.," and in the quarter ending August 1st, 1881, I find 13 feet of tile. And in the quarter ending November 1st, 1881, I find item of 15 feet. These items are marked with across in pencil. This last one is marked "Plaintiff's Exhibit 1, February 6th, 1885, R. B. M." The items in these returns that point out tiles are marked with a cross in pencil. In the return for the quarter ending August 1st, 1881; it is the thirteenth item in the return. Royer Brothers, Philadelphia, Pennsylvania, 13 feet, and in the quarterly return ending February 1st, 1879, it is the first item, the second item and the seventh item; and in the quarterly return ending November 1st, 1881, it is the tenth item; and in the quarter ending May 1st, 1881, it is the tenth and thirteenth items. Ingalls & Mark have rendered accounts and paid license fees to the plaintiff under the license and supplementary agreement for illuminated tiling

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laid in front of the building, to light the basement or space below said tiling, where the basement was not extended beyond the area well, or the line between the area and sidewalk proper. The most of the work returned was of that character. I find in the quarterly return for the first quarter, that is the quarter ending February, 1879—in this return, I find the sixth item to be No. 52 Greene street, which is a basement extension to the area wall only. The basement extension roof over the sunk area is made of bull's-eye knob tile. I find in the returns for the quarter ending August 1st, 1879, the fifteenth item in this return is 116 Chambers street. It is a basement extension to the area wall. Basement extension roof over sun area. Bull's-eye lights. "Hyatt's illuminated basement, &c., patented 27th August, 1867" is cast upon the frame in raised iron letters and figures. In that work the basement is extended only to the area wall. The eighth item in the returns ending November 1st, 1879, gives No. 367 Third avenue, which is a basement extension roof over the sunk area, with the basement out only to the area wall. Bull's-eye lights, made into sections or platforms, "Hyatt's illuminated basement, &c., patented 27th August, 1867," in raised letter and figures upon each piece of work. The sixteenth item in the return for the quarter ending February 1st, 1880, is for work at No. 100 Spring street. Bull's-eye lights, basement extension roof, with a sunk area. The basement extended only to the area wall. "Hyatt's illuminated basement, &c., patented 27th August, 1867," cast on the work in raised iron letters and figures. In the returns for the quarter ending May 1st, 1880, the first item and the eighth item. On the first, the work is at the corner of Fifty-seventh street and Sixth avenue. It is a basement extension roof of concreted illuminated tiles, made in long strips. On Fifty-seventh street, they light the apartment under the sidewalk cut off from the basement by the solid front wall of the

364

building, except at one opening between two piers. This apartment under the sidewalk extends from the face line of the building out to the curb, or near it. This building is a corner building, and on the Sixth avenue side it extends only to the area wall, so that all comes in together. The eighth item at No. 62 Cliff street; this is an illuminated work, laid at 62 Cliff street. This work is an illuminated basement extension and step roof, where the area covering is in the form of illuminating steps made up of treads and risers, and there are three of those steps and a platform. The extension of the basement is only to the area wall, nothing beyond it. The seventh item in the quarterly returns ending November 1st, 1880, gives 464 Fourth avenue. The real number is 466, and that is a basement extension roof over a sunk area, made of concrete illuminated tiles. The basement extended only to the area wall. In the amended returns for the quarter ending May 1st, 1881, the third item from the bottom is for work at the south-east corner of First avenue and Sixth street, New York City, and that is a basement extension roof over the sunk area, made of bull's eyes, and is a basement. It does not extend beyond the area wall. The work is bull's eye lights. The sixth item in the same return, is work done at the corner of Thirty-eighth street and Second avenue, New York City; bull's eye lights; basement extension roof over the run area, and the basement extended only to the area wall. In the quarter ending August 1st, 1881, ninth item from the top, is for work done at No. 27 Park row, New York City. The tiles are bull's eye tiles. It is a basement extension over the sunk area; the basement extended only to the area wall. The quarter ending November 1st, 1881, on the first page of the returns, last item at the bottom, is No. 2,179 Third avenue, and this work is bull's eye work, and a basement extension roof over the sunk area. The basement extended only to the area wall. The seventeenth item

365

in the same return, same page, is work done at Forty-second street and Fourth avenue, southeast corner. This is a basement extension root over the sunk area. The tiles are concreted. It has also the Dale Tile card upon it. A part of the work forms the platform at the top of the stoop leading from the sidewalk to the first story of the building. The other part of the work is vault with the sidewalk over the area. There is no basement extended under the sidewalk, vaults under the sidewalk; the basement extended to the area wall; the area is open between the piers; a short piece only. In this same return for this quarter, the fourth item from the top, on the first page, is for work done at 282 Greenwich street. This is a basement extension roof, made of concreted tiles that covers the sunk area. The basement rooms extended only to the area wall. This work is concreted without any Dale Tile card upon it; only the name of the defendants on the work. This concreted work has cast upon the iron of the border the words and letters, "Hyatt's Illuminated Basement, amp;c., patented 27th August, 1867." That is all the work that I examined.

It has been the custom and practice of the defendants to account for any pay royalty to the plaintiff under the license and supplementary agreement, for illuminated tiling placed in front of the building, to illuminate the space beneath the same, where the basement and the extension thereof are separated by piers, pillars, sash doors, or the like.

The third item in the returns for the quarter ending May 1st, 1881, is for work put down at No. 40 Murray street. That work is knob tiles, and the old vault is under the sidewalk; that was there before this work was put down, undisturbed. The old sash doors between the piers at the front line of the building are still there, and the illuminating work is over the sunk area; and on this work, at this place, No. 40 Murray street, is cast these same

366

letters and figures, "Hyatt's Illuminated Basement, &c., patented 27th August, 1867." All of this that I have spoken of have piers that hold up the front wall, and those piers, if it is to be called a separation of the basement from the area, separate it. In the one case, at 40 Murray street, I have given, there are sash doors between the piers that shut if off. There are four openings always, as a rule, made by three piers, generally stone, sometimes iron, that uphold the front wall of the building, and they must come directly down between the area and the basement. It don't recall to mind any items where those piers or columns were not used. I cannot specify the items. I can only repeat, every one that is down there and say there are columns or piers in every case.

It has been the custom and practice of the defendants to account and pay royalties to the plaintiff under the license and supplementary agreement for illuminating platforms, illuminating risers and illuminating treads.

In the returns for the quarter ending May 1st, 1880, the eighth item from the top is work done at 62 Cliff street. In this, the lights are bull's eye lights. They cover the area, and make a step roof composed of treads and risers which make illuminating steps and the illuminating platforms. There are three illuminating steps at this place.

Plaintiff's counsel offers in evidence the accounts of Ingalls & Mark referred to by the witness in giving his testimony, and the same are marked respectively "Plaintiff's Exhibit. Defendants' return for quarter ending February 1st, 1879, R. B. M."

367

Plaintiff's Exhibit.

DEFENDANTS' RETURN FOR QUARTER ENDING FEB. 1/79.

Account of Illuminating Basement Tiles manufactured and sent away from their place of business for quarter ending Feb. 1/79, by Ingalls & Mark:

To whom sold.	Where used.	Sq. feet.		At what price.
Royer Bros.,	Philadelphia,	11		$2.60
Wagner & Pfeiff,	New York City,	8	½	$2.60
S. B. Terdon,	476 B'way, NYC,	26	½	$3.50
A. Ayres,	New York City	68		$2.60
New York Real Estate Co.,	70 & 72 Worth St., NYC,	34		$3.50
Johnson Bro.,	52 Greene St., NYC,	50	½	$3.50
Johnson Bro.,	52 Greene St., NYC,	4	1/3	$3.50
E. G. Smyser,	Baltimore, Md.,	74	¼	$3.50

	Total sq. ft.	277	1/12
By check, $41.56 @ 30¢
By credit on %, $41.56		$83.12

368

"Plaintiff's Exhibit. Defendants' return for quarter ending august 1st, 1879. R. B. M."

Plaintiff's Exhibit.

DEFENDANTS' RETURN FOR QUARTER ENDING AUG. 1/79.

Account of Illuminating Basement Tiles manufactured and sent away from their place of business for quarter ending Aug. 1, 1879, by Ingalls & Mark, 5 Worth St., N. Y. C.:

To whom sold.	Where used.	Sq. feet.
Sam'l B. Ferdon,	1353 Broadway,	23	1/3
L. Fink,	310 Canal St.,	106
S. J. Creswell,	Phila., Pa.,	49	2/3
Royer Bro.,	" "	28
A. Ayres,	N. Y. C.,	88	2/3
G. S. Lincoln,	Hartford,	103	½
S. B. Ferdon,	N. Y. C.,	16
A. J. Campbell,	132 Broadway,	85
" " "	N. Y. C.,	49
Burnett & Co.,	" " "	38	½
H. C. Schmitt,	" " "	14	½
Royer Bro.,	Phila.,	15
E. G. Smyser,	Baltimore,	249
C. Vreeland,	N. Y. C.,	126
E. G. Smyser,	Baltimore,	46	1/3
American Tack Co.,	116 Chambers St.,	24
R. Wonderburg,	Richmond, Va.,	20
E. G. Smyser,	Baltimore, Md.,	38	½
John Downey,	13th St. & B'way,	73	1/3
G. S. Lincoln & Co.,	Hartford,	41	2/3

	1236
At 30¢ as modified by agreement of same date as license		30¢

	$370	80
Less one-half retained in repayment of advanced royalty as by the above agreement		185	40

Leaving a balance of		$185	40

369

JOHN W. MARK, bookkeeper of the firm of Ingalls & Mark, being duly sworn, deposes and says, that to the best of his knowledge and belief, the above account is correct and true.

JOHN W. MARK.

Sworn to before me,
this 7th day of
August, 1879.

LEONARD J. GIERGERICH,
[SEAL.] Notary Public, N. Y. Co. (31).

"Plaintiff's Exhibit. Defendants' return for quarter ending November 1st, 1879. R. B. M."

Plaintiff's Exhibit.

DEFENDANTS' RETURN, QUARTER ENDING NOV. 1/79.

Account of Illuminating Basement Tiles manufactured and sent away from their place of business for quarter ending November 1st, 1879, by Ingalls & Mark, 5 Worth St., New York City:

To whom sold.	Where sold.	Sq. feet.
S. B. Ferdon,	New York City,	18
G. A. Scheider & Sons,	Washington, D. C.,	60
" " " " "	" " "	18	1/3
Wagner & Pfeiff,	New York City,	13	2/3
Gray & Noyes,	Washington, D. C.,	11
A. J. Campbell,	New York City,	133	½
Westing & Hafer,	367 3rd Ave.,	45	2/3
Capell & Bros.,	Wilmington, Del.,	50
Wagner & Pfeiff,	New York City,	9	2/3

370

G. S. Lincoln & Co.,	Hartford, Conn.,	6	1/3
Sam'l J. Creswell,	Philadelphia, Pa.,	69	1/3
Royer Brothers,	" "	63	2/3
J. B. Cochrane,	Pittsburgh, Pa.,	15	1/3
Gray & Noyes,	Washington, D. C.,	45
Burnett & Co.,	21 Nassau St.,	60
Sam'l J. Creswell,	Philadelphia, Pa.,	159
" " "	" "	17	2/3
Gray & Noyes,	Washington, D. C.,	11	½
A. J. Campbell,	New York City,	192
Burnett & Co.,	" " "	326	1/3
" "	" " "	112
Robert Wilson,	New Haven, Conn.,	51
Cook & Radley,	206 West 29th St.,	198
D. A. Manson,	28 Broadway,	46
John Shepard,	Hartford, Conn.,	27
Westing & Hafer,	431 8th Ave.,	46
A. A. Ball,	New Haven, Conn.	25	1/3
S. J. Creswell,	Philadelphia,	36
Schneider, Stroheim & Co.,	Cor. Canal & Mott St.,	37	1/3

Total sq. ft.		1952	½
At 30¢ a sq. ft. as modified by agreement of the same date as license		30¢

	$585	60
	15

Total		$585	75
Less one-half retained in repayment of advanced royalty as by the above agreement		292	87

Leaving a balance		292	88

City and County of New York, ss.:

JOHN W. MARK, bookkeeper of the firm of

371

Ingalls & Mark, being duly sworn, deposes and says, that to the best of his knowledge and belief, the above account is correct and true.

JOHN W. MARK.

Sworn to before me, this
20th day of January, 1880.

LEONARD J. GIERGERICH,
Notary Public, N. Y. Co. (31).

Plaintiff's Exhibit.

DEFENDANTS' RETURN, QUARTER ENDING FEB. 1/80.

Quarter ending Feb. 1/80.

Account of Illuminating Grating sold and sent away from their places of business. Ingalls & Mark, 5 Worth St., N. Y. C.:

To whom sold.	Where used.	Sq. feet.
Burnett & Co.,	New York City,	67	2/3
Wagner & Pfeiff,	" " "	63	1/3
Geo. R. Jackson Sons,	cor. 5th & 36th Sts.	14	2/3
Mansfield & Fagen,	Hoboken, N. J.,	109	1/3
S. B. Althouse & Co.,	121 Mercer St.,	90
Royer Bros.,	Philadelphia, Pa.,	32
S. J. Creswell,	" "	20
Stewart & Stevens,	" "	9	½
Royer Bros.,	" "	73	1/3
Wagner & Pfeiff,	New York City,	16	1/3
G. S. Lincoln & Co.,	Hartford, Conn.,	23	½
John Sheppard,	" "	3
Jackson's Sons,	Fulton & William Sts.	106

372

Johnson,	New York City,	13	2/3
Wagner & Pfeiff,	" " "	5	2/3
Cook & Radley,	100 Spring St.,	61
Stewart & Stevens,	Philadelphia,	9	2/3
J. B. & J. M. Cornell,	10 E. 14th St.,	47	5/12
S. J. Creswell,	Phila., Pa.,	17	1/3
A. J. Campbell,	Greene & Spring Sts.,	413
Johnson Bros.,	New York City,	150
Burnett & Co.,	" " "	761
Starr & Leadley,	Phila., Pa.,	101
Johnson Bro.,	New York City,	123	2/3
Burnett & Co.,	" " "	63	1/3
Hartford Foundry & M. Co.,	Hartford, Conn.	44	7/12
S. B. Althouse & Co.,	175 & 173 Duane St.,	250
James McKimery,	Albany, N. Y.,	56	2/3
S. J. Creswell,	Philadelphia, Pa.,	16	2/3
Burnett & Co.,	New York City,	165	2/3

	2928
As modified by an agreement at 30¢ made same date as license		$878	40
	30

Less one-half retained in repayment of advance royalty as by the above agreement		439	20

Leaving a balance		$439	20

City and County of New York, ss.:

JOHN W. MARK, bookkeeper of the firm of Ingalls & Mark, being duly sworn, deposes and says that to the best of his knowledge and belief the above account is true and correct.

Sworn to before me, this
24th day of November, 1880.

FRANK H. ANGIER,
Notary Public, New York.

373

"Plaintiff's Exhibit. Defendants' return for quarter ending August 1st, 1881. R. B. M."

Plaintiff's Exhibit.

DEFENDANTS' RETURN, QUARTER ENDING AUG. 1/81.

Account of Illuminating Plates for basement extension manufactured and sent away from 5 Worth St. by Ingalls & Mark for quarter ending Aug. 1st/81:

Whom sold.	Where used.	Sq. feet.
Hewey & Post,	Van Dyke Block, Paterson, N. J.,	44
J. P. White,	300 Main St., Buffalo, N. Y.,	485	6
Thomas Burns,	Newark, N. J.,	57
C. Vreeland,	City,	80
G. S. Lincoln & Co.,	Hartford, Conn.,	130
G. A. Schneider's Sons,	Washington, D. C.,	32
Blake, McMahon & Co.,	City,	41
Wagner & Pfeiff,	"	69
Patterson Bros.,	No. 27 Park Row, City,	74	9
Blake, McMahon & Co.,	Baxter St., City,	33	6
G. S. Lincoln & Co.,	Hartford, Conn.,	35
Wagner & Pfeiff,	City,	48	6
Royer Bro.,	Phila., Pa.,	13
E. L. Cook,	Buffalo, N. Y.,	52	3
Wagner & Pfeiff,	City,	29
G. S. Lincoln & Co.,	Hartford, Conn.,	17	9
Blake, McMahon & Co.,	City,	95
G. S. Lincoln & Co.,	Hartford, Conn.,	17	3
E. G. Smyser,	Baltimore, Md.,	31

Total		1323	1/6
Less the balance of advanced money @ 30¢		$121	97

	$396	90
Interest on same for 3 months, $1.83		$123	80

Amount due		$273	10

374

City and County of New York, ss.:

JOHN W. MARK, bookkeeper of the firm of Ingalls & Mark, being duly sworn, deposes and says that to the best of his knowledge and belief the above accounts are true and correct.

JOHN W. MARK.

Sworn to before me, this
23d day of August, 1881.

LEONARD J. GIEGERICH,
[L.S.] Notary Public, N. Y. Co., (17).

Plaintiff's Exhibit.

DEFENDANTS' RETURN FOR QUARTER ENDING NOV. 1/80.

Account of Illuminating Tiling manufactured by Ingalls & Mark, and sent away from their place of business, 5 Worth St., New York, from Aug. 1st, 1880 until Nov. 1, 1880:

To whom sold.	Where used.	Sq. feet.
R. H. Macy,	13th St. and Sixth Ave.,	345
C. Vreeland,	78th St. and Third Ave.,	287
Mare Eidlitz,	845 Broadway,	62	3
Wagner & Pfeiff,	New York City,	32
E. G. Smyser,	Baltimore, Md.,	545
W. Schram,	522 2nd Ave.,	29	1/3
Cook & Radley,	464 4th Ave.,	30	½

375

E. P. & C. B. Smith,	Binghamton, N. Y.,	162
G. Crandell,	" "	137
Barnett & Co.,	706 E. 12th St.,	7	¼
C. A. Schneider & Son,	Washington, D. C.,	34
Royer Bros.,	Philadelphia, Pa.,	18
Dale Tile Co.,	New York City,	83
Wagner & Pfeiff,	" " "	108
J. B. Althouse & Co.,	67 & 69 Chambers St.,	147
Westing & Hafer.,	New York City,	16
Wagner & Pfeiff,	" " "	42
Cook & Radley,,	" " "	53
E. G. Smyser,	Baltimore, Md.,	8	2/3
S. J. Creswell,	Philadelphia,	33	½
Royer Bros.,	"	33
E. G. Smyser,	Baltimore,	462	2/3
" " "	"	9
" " "	"	9	2/3
Burnett & Co.,	New York City,	174
A. Hamil,	Jersey City,	120
E. G. Smyser,	Baltimore,	33
Dale Tile Co.,	New York City,	63
Burnett & Co.,	" " "	27	¾
Sam'l J. Creswell,	Phila., Pa.,	189	1/6
Daily New Bldg.,	Park Row,	50
Wagner & Pfeiff,	New York City,	41	2/3
Johnson Bro.,	" " "	28	1/6
A. R. Tweedy,	Binghamton, N. Y.,	33

	3475
As modified by an agreement made same date as license @ 30¢		$1042	50
Less one-half retained in repayment of advanced royalty as by the above agreement		521	25

Leaving a balance		$521	25

376

JOHN W. MARK, bookkeeper of the firm of Ingalls & Mark, being duly sworn, deposes and says that to the best of his knowledge and belief the above account is true and correct.

JOHN W. MARK.

Sworn to before me, this
24th day of November, 1880.

LEONARD J. GIEGERICH,
Notary Public, N. Y. Co., (31).

"Plaintiff's Exhibit. Defendants' return for quarter ending February 1st, 1881. R. B. M."

Plaintiff's Exhibit.

QUARTER ENDING FEB. 1/81.

Illuminating basement extension roof tiles manufactured and sent away from their place of business by Ingalls & Mark, during the quarter ending Feb. 1st, 1881:

To	Burnett & Co., New York City,	35'	6"
"	Gray & Noyes, Washington, D. C.,	23'	6"
"	Wagner & Pfeiff, New York City,	269'
"	E. G. Smyser, York, Pa.,	301'
"	Stone & Guff, Binghampton, N. Y.,	80'
"	Cook & Radley, New York,	251'	2"
"	Johnson Brothers, " ",	35'	9"
"	H. Westcott, Binghampton, New York,	64'
"	James Carney, New York,	28'
"	Sam'l J. Creswell, Philadelphia, Pa.,	146'	2"
"	Steward & Stevens,	46'	6"
"	Edward Smith, 162 Bleecker St., N. Y. City,	46'	4"

377

To	Royer Bros., Philadelphia., Pa.,	65'	9"
"	C. Vreeland, New York City,	96'

Total amount sq. feet,		1488'	8"
Royalty @ 30¢ per sq. feet		$446	60
Less ½ deducted from above		$223	30
Less order to F. H. Angier,		25

	$198	30

STATE OF NEW YORK,
City and County of New York,

ss.:

JOHN W. MARK, bookkeeper for Ingalls & Mark, being duly sworn, deposes and says that the foregoing statement is true to the best of his knowledge and belief.

JOHN W. MARK.

Sworn to before me this
8th day of February, 1881.

LEONARD A. GIEGERICH,
Notary Public, N. Y. Co., (31).

"Plaintiff's Exhibit. Defendants' return for quarter ending August 1, 1880. R. B. M."

378

Plaintiff's Exhibit 5, Sept. 5/87.

QUARTER ENDING AUG. 1.

Account of Illuminating Tiling manufactured by Ingalls & Mark and sent away from their place of business No. 5 Worth St., New York, from May 1, 1880:

To whom sold.	Where used.	Sq. feet.
C. Vreeland,	57th St. and 6th Ave.,	562	1
E. S. Vaughan & Son,	924 & 926 Broadway,	121
E. G. Smyser,	Baltimore,	23
S. B. Althouse & Co.,	112 Fifth Ave.,	26	1/3
Jerrin Brown,	573 & 575 Eighth Ave.,	134	6
Johnson Bro.,	Maiden Lane & Nassau,	76
C. Vreeland,	8th Ave.,	50
Mrs. Goodspeed,	62 Cliff St.,	55
S. J. Creswell,	Philadelphia,	219
Farrin & McCullough,	324 Canal St. & Lispenard St.,	127
S. B. Ferdon,	18 Nassau St.,	68
E. G. Smyser,	Baltimore, Md.,	87	½
E. G. Smyser,	" "	34
Royer Bro.,	Philadelphia, Pa.	104
J. R. Brown,	477 8th Avenue,	55
Johnson Bros.,	New York City,	61
S. J. Creswell,	Philadelphia,	63	9
Royer Bros.,	"	3
Wagner & Pfeiff.,	New York City,	8
E. G. Smyser.,	Baltimore, Md.,	149
Sam'l J. Creswell.,	Philadelphia, Pa.,	63
C. A. Schneider & Son,	Washington, D. C.,	25

	2115
As modified by an agreement made same date as license @ 30¢		$634	50

379

Less one-half retained in repayment of advance Royalty as by the above agreement	317	25

Leaving balance of	$317	25

JOHN WILLIAM MARK, bookkeeper for Ingalls & Mark, being duly sworn, deposes and says that to the best of his knowledge and belief the above account is true and correct.

JOHN WM. MARK.

Sworn to before me, this
24th day of November, 1880.

LEONARD A. GIEGERICH,
Notary Public, N. Y. Co., (31).

I would like just to state that at the last time when I was here, I overlooked one piece of work that I intended to have mentioned. It is 4 tiles at No. 6 Catharine street, returned in one of these returns. They were simply tiles without any surrounding frames, and let into the blue stone flagging of the sidewalk.

It has been the practice and custom of the defendants to account for and pay royalties or license fees under the license and supplementary agreement to Elizabeth A. L. Hyatt, the plaintiff, for illuminating tiling constructed of flat round glass set in iron frames, and set around with concrete as claimed to be known substantially as the Dale light, which illuminating tiling was furnished by the defendants Ingalls & Mark, whether made by them or not. You will find an example of

380

it at 282 Greenwich street in one of the returns already mentioned, where the concrete work has no Dale tile card on it, put down by Ingalls & Mark; and other work at Fifty-seventh street and Sixth avenue where the work returned by Mr. Mark has the Dale tile car on it. I should like to state that in the controversies prior to the license and agreements being made, the Dale tile people claimed to have a patent that was independent of mine, but when we settled matter, they acknowledged that my patent was the foundation one and agreed to pay me royalties—their being subordinate to it—and did pay me royalties. The tiles were my tiles simply, with a layer of concrete over the face. The substantial construction of the tile was not altered at all, nor the basement extension construction which I patented.

Cross-examined by Defendants' Counsel as follows:

Q. Have you that patent of 1845?

A. I will produce it. I have not got it now.

Q. When will you have it?

A. I have a printed copy.

Q. Never mind, I will have them all here at the next session. When was your first patent issued on these lights?

A. The 12th of November, 1845, vault lights.

Q. That is the first?

A. On vault lights. I make a distinction between a coal hole plate and a tile.

Q. I only ask you when you first patent was issued?

A. The 12th of November, 1845.

Q. How many have you got out since then, issue and reissues altogether?

A. I think I have about fifty patents altogether, various kinds, all pertaining to lights; but the special main invention of the illuminating grating was my first patent of 1845; and the tile was patented in 1867 and the construction followed made out of the tiles.

381

Q. You say about fifty since 1845?

A. I should think fifty, somewheres from thirty to fifty; may be more; may be sixty.

Q. How many of them are running now?

A. Well, I think there must be—I should fancy from twenty to forty.

Q. That are going now?

A. I think are still existing.

Q. Apropos of what you said voluntarily a few moments ago, do you claim royalties from the Dale Tile Company for the use of their concrete tile?

A. They have agreed to pay me a royalty. I have always claimed that it was an infringement of my patent.

Q. Do you claim royalties of them?

A. Not now.

Q. Did they ever pay you royalties?

A. Yes, sir.

Q. On account of that concrete tile?

A. I asked for no royalty on the concrete. I asked it on the tile. The tile was my invention. Putting on the concrete did not alter it, except the surface, that made it non-slipping.

Q. I want you to answer my question (Question repeated).

A. I do for tile.

Q. Have they ever paid you any royalty on it?

A. They have.

Q. When?

A. In these returns that they have made.

Q. Oh, I said for the Dale concrete tile?

A. Well, all that the Dale Tile Company have returned have been concrete tiles so far as I know. If they paid for any others, I have not looked into it. I am not aware that they have.

Q. Mr. Hyatt, don't you know that the Dale Tile Company have an exclusive patent on their concrete tile and that it has been in existence for years?

A. Only for the surface when they put upon my grating.

Q. Why don't you answer my question?

382

A. I do, but I am not going to answer that they can have a patent for what they call an improvement and steal my foundation.

Q. Have you got any Letters Patent covering a frame merely?

A. Without any glasses? No, not without any glasses, but with glasses in, I have. I have a patent for one where it is covered with asphalt, which is the equivalent for hydraulic concrete. Asphalt is the concrete bituminized, which I did before Dale. This hydraulic concrete is nothing more.

By the Referee:

Just answer the question put to you, Mr. Hyatt (Last question repeated.)

A. No, not without the glasses.

Q. Have you ever had?

A. No.

Q. Have you ever had a patent which covered frame and glasses merely?

A. If you will tell me what you mean by a frame, so I shall not stumble, I will be glad. If you mean by the frame what I call the tile or plate in which the glasses are set—what I call a frame is the outside frame in which the gratings are set.

Q. When I say frame, I mean a tile in which the glasses are put?

A. Yes, I have.

Q. When was it issued?

A. 1845.

Q. When was it reissued?

A. 1853, I think, speaking from memory.

Q. When did it expire?

A. The 12th of November, 1858, is the expiration—no, 1859 I think it was. Yes, the 12th of November, 1859, it would have expired, but that was reissued by the Commissioner of Patents, and again by Congress in 1866. Finally, it expired November, 1873.

Q. Do you say that those letters were for an invention merely of setting glass into one of these tiles?

A. It was the invention of an illuminating grating.

Q. Did the invention simply consist of setting glass into an iron tile?

A. Not simply.

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Q. Wasn't the characteristic feature of that so-called invention that of the double-cemented joint and fusible cement?

A. No, sir; it was not.

Q. Wasn't that a feature of the invention?

A. No, sir.

Q. What was?

A. The feature of the invention was that there was an iron or metallic grating with apertures so small that persons or bodies passing over it could not fall through the hole in case the glasses were broken out.

Q. Was not the element of that so-called invention the fusible joint?

A. No, sir; nothing to do with it.

Q. Nothing to do with it?

A. Nothing whatever. It was made of two plates.

Q. The fusible joints were not used at all?

A. Was not used by me at first.

Q. I do not mean at first; I mean under that patent?

A. Under that patent there were two plates like a sandwich and the glasses were held mechanically.

Q. When you reissued it in 1855, or amended it in 1855, didn't you get in your fusible joint then?

A. No, sir.

Q. When did the fusible joint first appear as an element in this invention?

A. It appeared when I made my application for the patent in the year 1856, which application remained 11 years in the Patent Office.

Q. When did it first appear by Letters Patent?

A. Not until that patent was issued.

Q. When was that?

A. The 27th of August, 1867, but I used it all the time.

Q. Now, don't misunderstand me. What I am asking is when the fusible joint appeared in that invention, in the Letters Patent?

A. In the patent, it did not appear until the patent of 1867.

Q. That is precisely what I ask—not until 1867?

A. It did not appear in the patent, no. I made an invention before 1867, and used it, too.

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Q. You were not deemed an inventor till 1867, when these Letters Patent were issued?

A. I have been an inventor since I was a student-at-law.

Q. You were not an inventor, so recognized, until 1867?

A. I was an invention since 1845 and recognized as a patentee.

Q. I mean as respect this fusible joint?

A. Oh, well, if you will ask me when I invented the fusible joint, i will tell you.

Q. I am not going to ask you that. (Question repeated).

A. Yes; I was before that.

Q. And so recognized by Letters Patent?

A. No, not by Letters Patent.

Q. That is my question; answer the question.

A. I was.

Q. What do you consider that you invented under and by virtue of the Letters Patent issued to you in 1867; what is the invention, so called, of 1867?

A. I will tell you; it is a single plate—

Plaintiff's Counsel.—I object, that this is not proper cross-examination; I have not examined Mr. Hyatt in regard to his patent or to any patent. I have confined my examination of Mr. Hyatt solely to what the defendants Ingalls & Mark have done under the license and the supplementary agreement as showing their understanding of the agreement, and there I have stopped with Mr. Hyatt's examination; objection overruled; exception.

A. It is the invention of a single plate as opposed to the laminæ or two plates of the 1845 patent, and it is the insertion of the glasses from the top side of the grating, and it is the formation of seats in this single plate grating that enabled the glasses to be entered from the top side. It is also the invention of the double-cemented joint of putty and coal tar and sulphur, or fusible cement,

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which I made use of; and it is also the formation of these gratings into shapes which I distinguished in my patent as tiles, which I call tiles in order to distinguish them from coal hole plates, which formed the subject matter of my 1845 patent; and it is also the invention of the illuminating roof constructions made from these tiles, whether the roofs are in the top of the building, in the floors, or in the pavement of a traveled street, over the area, between the doorways or in steps and risers.

Q. Is that all you have to say?

A. And a part of the invention in that patent as set forth, is illuminating risers and illuminating treads to form illuminating steps, as well as illuminating platforms in forming illuminating stoops.

Q. Do you profess that your so-called invention under the Letters Patent of 1867, comprises two devices, to wit: One, the construction of a tile with glass jointed and bolted as you have described, and the other an application of this tile to the use of illuminated basements and basement extensions.

A. And roofs.

Q. You had better listen to my question?

A. The patent covers both.

Q. Both devices?

A. They are not two devices; it is all one.

Q. Does the patent cover both things?

A. Both things.

Q. Do you profess, that under your so-called invention of 1867, that you could call on any person for royalties, who made use of, or who manufactured, or who sold, one of these tiles, no matter where the tile was used, or how it was used?

A. The tile described in the 1867 patent? Yes, sir, I say.

Q. Stop there—suppose such a tile as you have described had been made by Mr. Mark or Mr. Furman after 1867, and had by them been sold to a merchant who laid that time in the floor of the second story of his ware house; would you claim a right to royalty on that tile?

A. I would if they

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had agreed to pay me for the tiles when they were used there; but I would not, if I had agreed to take my royalties upon those same tiles at some other place where they agreed to put them.

Q. Strike out the names of Mark and Furman from the question and rewrite it a follows: Take a tile constructed as you have described—your description is fresh in your mind, is it not?

A. In the patent of 1867, yes.

Q. Take a tile constructed as you have described, when you were describing your invention of 1867, to wit: a tile which contains bull's eyes, fusible joint, bolting, packing, and so forth?

A. The glasses don't have any bolting.

Q. When it is connected with the frame, it has bolting?

A. That is construction.

Q. Well, constructed with bolting—do you profess that it would have been an infringement on your right for any person without your permission, to have laid such a tile in the second floor of his warehouse?

Plaintiff's Counsel.—I want to raise this objection again to all this line of examination on the ground that the accounting is under a certain license and supplementary agreement, which, by their terms themselves and by the actions of the parties themselves, under that license and supplementary agreement constitute their duties as to what they are to account on; and that it is immaterial, so far as this present suit is concerned, how broad or how narrow or how valid or invalid the Hyatt patent may be; that these parties being licensees, cannot attack the validity of the Hyatt patent and that for the purpose of the reference, the construction of the patent as between the parties to the license and to the supplementary agreement should be controlling.

The Referee.—I think this line of examination is going to throw light upon the whole matter to enable the Court to determine it. I will overrule the objection. Exception.

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A. Yes, sir, or anywhere.

Q. So then you contend, do you, that on this accounting, we are bound to you, provided such a tiling as you have described has been sold by us, no matter whether it has been used to illuminated a basement extension or not, do you?

A. I do, and no matter what the cement used to set the glass in.

Q. And you claim that that is within the scope of your Letters Patent so called of 1867?

A. I do distinctly.

Q. Then you contend, do you not, that the adaptation of those tiles to plain surfaces as well as to treads and risers so as to illuminate a basement below or a basement extension below, is in itself a new invention?

A. As made of those tiles, decidedly.

Q. That is just what I said?

A. Yes, sir.

Q. Why, then, am I not right in saying, that under your so called invention of 1867, you really go for two distinct things? Would you invention of 1867 cover a tile in which the glass was set in concrete in the tile?

A. It would.

Q. No matter where it was used?

A. No matter where it was used.

Tile marked "Defts Exh't 1 for identification, Nov. 15th, 1887. R. B. M. Ref."

Q. To illustrate the proceeding questions, Exhibit 1 of this date for identification is put into the hands of the witness. It is a block, diamond shaped, taken from a concrete tile, and ask you whether a tile thus composed is within the scope of your patent of 1867?

A. It is, decidedly.

Q. No matter where used; in what part of the building?

A. No matter.

Q. I also put into your hands a block marked "Defts Exhibit No. 2" for identification of this date and ask you whether or not that be taken from a tile which you claim to have been within the scope

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of your patent and on which you have recovered royalties?

A. I don't understand the question.

Q. (Question repeated.)

A. You ask me if this has been.

Q. Or might have been?

A. Oh, yes; this might have been got from a tile—what we call the knob tile.

Q. That is a block taken from one of your so-called knob tiles?

A. Yes, sir; these knob tiles and plain faced tiles—all of them have not knobs. I made some with knobs, yes.

Q. This last exhibit really is from a tile under your so-called invention?

A. This illustrates the setting of a glass in a tile—fairly, I should judge, this illustrated the mode of setting a glass in a knob tile. This, itself, is not a tile.

Q. Now, Mr. Hyatt, when, and from whom have you ever received, or have you ever demanded royalties for the use of a tile containing blocks like Exhibit 1?

A. The Dale Tile Company.

Q. The Dale Tile Company have paid you royalties?

A. They have paid me royalties on just such work as that.

Q. When?

A. From the time they accepted a license until the time they stopped paying.

By the Referee:

Q. Covering about what period?

A. Well, three years, I fancy, they must have paid royalties, I do not say accurately.

By Defendants' Counsel:

Q. Do you deny that this Exhibit No. 1, has been the subject of exclusive Letters Patent granted to one Dale, and now owned by the Dale Tile Company?

A. I do. There is not any patent for that. It does not exist. It cannot be found in the archives of the patent office.

Q. Has not the Dale Tile Company for years been receiving royalties for the use of such tiles?

A. I don't know anything about it or about their business.

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I have nothing to say on that subject. You can't find the word "concrete" in their patent. It don't exist.

Q. Mr. Hyatt, under this patent of 1867, or within this patent of 1867 of yours, do you deem included any combination of glass with iron in a frame which can be used as a surface for walking over and which can also be used at the same time to illuminate sub-cellars?

A. No, I do not. They might have used my old vault covers after that vault cover patent expired in 1873, and they were perfectly welcome to do it. I never denied that. They have a perfect right to make anything out my old vault covers. I shouldn't have troubled them if they had stuck to that.

Q. When, do you say, does the use of glass with iron set in a frame come within the scope of your patent?

A. When the tile is a single plate with seats for the glass made in the iron—on the top side of the iron and the glass is entered from the top side and fastened there by any means. That is what I mean. The old grating was composed of two plates which held the glasses between them, sandwiched them so that the glasses were held mechanically. You could not repair one without disturbing dozens.

Q. Now, I put into your hands your claims, seven in number, following the specifications of the Letters Patent of 1867, and request you to designate any claim therein which covers the invention you have just described?

A. Is that my last reissue?

Q. No, no; this is your original of 1867. Begin at page 36 and go down.

A. If this is for the benefit of the Referee, I should like to give him a full understanding of the whole thing, to wit (reading): "The invention of adapting iron and glasses to a frame by means of a fusible joint set in on the weather surface, so that the removal of one does not disturb others. Claim 1st—"

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Q. You need not read the whole of it?

A. Every one of those claims covers it from beginning to end; that picture shows it; you asked me to show a single tile; there it is; on sheet 1 of the drawing, figure 4, shows a single plate grating with glasses let in from the top as well as it also shows the manner in which the grating or tile is fastened to what is called the foundation frame.

Q. Are you of the opinion, then, that a claim will cover anything that might have been in a picture that precedes it?

A. I am, decidedly, because a picture forms a part of the subject matter of the patent.

Q. Do you intend to include in these claims of 1867, any one of the claims in the Letters Patent of 1845?

A. Oh, no, I have not included any of them. When I say "substantially as described," I referred to all those drawings and all that I have said in the body of the specifications.

Q. But, in 1867, it seems that there were in force the Letters of 1845, extended?

A. Oh, yes, down to 1873.

Q. As well as the Letter of 1867?

A. After the 27th of August, 1867, I had two patents; one held the foundations as an illuminating grating, no more; the other covered the tiles and their application. The improved tiles—the improved gratings, to be more accurate.

Q. Support any of those licensees under your patent of 1867 had made the grating or iron framework without setting the glass therein, and had sold the iron framework or tile work only, would you claim that this would be within the scope of your patent?

A. Certainly, if my licensees sold them for the glasses to be put in, I should say they would have to pay.

Q. Suppose they had no reference to the glasses at all, but filled the order given to them by a stranger for so many yards of these frames?

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A. Well, I think they could have sold those iron gratings as iron gratings.

Q. Without being under any obligation to you?

A. Certainly, if there were no glasses put in.

Q. Suppose they had at the time of the sale no knowledge whether glasses were to be put in; didn't know anything about it?

A. I think I would not have asked them for royalties.

Q. So, still more, with respect to glasses; if they bought and sold, or made glasses merely, without definite application; without any application to those tiles, you would not?

A. I think they could have made and sold glasses; I don't think I could have stopped that.

Q. Then, in any case, do you claim royalties, unless there has been a union of the glass with such a frame or tile as you have described?

A. Certainly not. Where they glazed them I claim royalties. All my licensees glazed them; most of the work is done that way; the iron founders cast these tiles and send them to my licensees and they simply glaze them. That is what they have been doing, of course, they make my invention then.

Defendants' Counsel desires to have marked, pages 36 and 37 of the printed case, which take in the seven claims of the 1867 invention.

Mr. Hyatt.—Mr. McCarthy, you wish to get all the light, I perceive, in my invention. I think you are honest in it. Won't you let me put right here in this case, my complete answer in type and print. It will give you everything.

Defendants' Counsel.—I have no objection that this paper of which you speak shall be submitted as an argument in this case.

Mr. Hyatt.—I should like to have it in as evidence.

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Defendants' Counsel.—I have some hesitation about admitting it as evidence.

Q. These letters of 1867 bear the following title, to wit: "Improvement in Illuminating Roofs and Roof Pavements. Thaddeus Hyatt, of New York. Assignor to Elizabeth Adelaide Lake, of New York. Improvement in Illuminating Roofs and Roof Pavements." Then the first sentence reads as follows: "Be it known that I, Thaddeus Hyatt, have made certain new and useful improvements in constructing and combining my patented illuminating vault covers, so as to form roofs by the combination." Again on page 35 you say, "Now, although I have my improvements in the architecture of buildings by means of the very best combination of iron and glass that can possible exist, yet I wish it to be distinctly understood that the extension of basements under the street by means of an illuminating roof pavement is my invention."

Mr. Hyatt.—Yes, sir; that is true.

Q. Now, have you any explanation to make of the quotations I have just read?

A. No, you will get them all in what I propose to put in; you can not take it piecemeal as well, as if you read it right through.

Q. Can you show me from the beginning of these Letters to the end of them, any claim or any pretension therein to the invention merely of a tile such as you have described?

A. I can; you will find it in the sixth claim of the original patent.

Q. Anywhere else?

A. If you will let me, I will read this claim. On the 36th page I claim broadly as my invention "an illuminating roof of iron and glass where the iron, which supports the glasses in position, forms the general strength of the roof, the combination being such as to secure the twofold object of equalizing and distributing the light of the glasses." No, I have not read

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you the proper claim. This is a mistake. it is the 5th claim instead of the 6th. It is a mistake as the answer to the question. The answer to the question is the 5th claim of the patent: "combining the glass of a roof light (which means tile) with the iron framing of the same by means of a double demented joint substantially as herein described." That is the claim to the illuminating tile.

Q. But you say it is combining the glass of a roof light?

A. Certainly.

Q. Haven't you been saying that your tiles could be used in floors?

A. Yes, sir; that word roof light is not used in that way; it is used as the equivalent of tile; that is what it means. We call tiles roof lights because they make roofs. It is just as much a roof in a floor as overhead. If it is overhead it is a roof, but roof light is specific sometimes when we speak of the top of a building.

Q. Is there any distinction in your rights as patentee; do you make any distinction between roofs and floors?

A. Not at all; the floor is the same thing; a floor is a roof with something under it.

Mr. Hyatt.—There are some inaccuracies, Mr. Referee, in my testimony at the last hearing, partly owing to obscurities in my answers, and partly my disapprehension of the questions, which I desire to correct. In answer to the questions, how many patents have you got out since 1845, issues and reissues altogether, and how many of them are running now? I wish to say that the number amounts to 67, about, and all of which, I think, are running at the present time.

By Defendants' Counsel:

Q. Are all of these 67 patents for and about the illuminating lights, tiles?

A. No, they are not all

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for illuminating gratings. Most of them are. There are some for combinations of iron and concrete for building purposes. And in answer to the question, "Have you ever had any patent for gratings without glasses?" I wish to say that I have had. One certainly. I can't tell how many more. In answer to the question, "When do you say does the use of glass and iron set in a frame come within the scope of your patent?" And the answer, "When the tile is a single plate with seats for the glasses made in the iron, on the top side of the iron, and the glass is entered from the topside and fastened there by any means." My answer is now, "When the tile is a single plate with seats for the glass made in the iron, on the topside of the iron, and the glass is entered from the topside and fastened there by means of an instantaneously setting cement, whether the cement be what is called fusible, asphalt, or hydraulic, as opposed to the mechanical method of fastening as set forth in my 1845 patent." By "mechanical" I mean "with a top plate and screws used, and the confining of a number of glasses to the bed." In answer to the question, "Suppose they had no reference to the glasses at all, but filled the order given to them by a stranger for so many square yards of these frames?" I answered, "Well, I think they could have sold those iron gratings as iron gratings." Then, question, "Without being under any obligations to you?" I answered, "Certainly, if there were no glasses put in." And suppose they had at the time of the sale no knowledge whether glasses were to be put in, and didn't know anything about it? I answered to that, "I think I wouldn't have asked them for royalties." I wish to say that those answers were strictly correct, made with this provision in my mind—that they were acting honestly and selling those gratings to be used only as open iron gratings, and knew that to be the fact. On the last page of the minutes, the answer to the question,

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"Haven't you been saying that your tiles could be used in floors?" The answer was, "Yes, sir; that word roof light is not used in that way. It is used as the equivalent of tile. That is what it means. It is just as much a roof in the floor as overhead. We call tiles roof lights, because they make roofs. If it is overhead, it is a roof, but roof light is specific sometimes, when we speak of the top of a building." My further answer to the question, or to quality it, is this: that a roof light put into a floor is the roof to the apartment or space beneath that is lighted by it; while, at the same time, it is a floor light to the apartment in the floor of which it is placed to be walk over. That makes what I said clear.

Defendants' counsel continues his Cross-examination as follows:

Q. Is that all?

A. That is all, Mr. McCarthy.

Q. When did you make application, give the date as nearly as you can, for the Letters Patent that were granted to you in 1867?

A. On the 27th of March, 1856.

Q. I call your attention to a tile marked "Pltfs. Exht. 1, Nov. 18, 1887, R. B. M." Please look at the unframed tile and tell me whether it differs from the unframed tile that is described in your specification in the Letter Patent of 1867?

A. It does not differ. It answers to it.

Q. How do you explain the fact that in this very exhibit occur the words "Hyatt's patent, Nov. 12, 1845."?

Mr. McMaster.—Same objection to this and all questions of a similar nature; same ruling and exception.

A. Because when that tile was made, the 1845 patent, which was the foundation patent and was a patent covering an illuminating grating or a combination of glass with an iron grating where the

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apertures were so small that in case all the glasses were broken out, the iron perfectly sustained the person or body passing over it, no matter how the glasses were fastened there—that is the principal claim of my 1845 patent and I was compelled under penalty, when I made that light, to put that patent of 1845 on, or be sued, and I was sued, by some of the infringers, who took that way of harassing me when I happened to leave it off. The fact that there is in that tile a subsequent improvement which I hadn't then obtained a patent for, does not prevent my right to use that subsequent improvement when I made my application in the patent office for it.

Q. Do you now claim that the exhibit is within the scope of your invention of 1845?

A. I do, because that is the foundation patent.

Q. Do you remember what you testified to at the last session, when you were being examined on that point?

A. No; if you will call my attention to anything, I will explain it.

Q. You don't profess to say that in 1867, you re-patented the invention of 1845, do you?

A. To the extent that it was an improved illuminating grating, in which illuminating grating, the apertures were so small that persons or bodies passing over it would be wholly sustained by the metal.

Q. To that extent you did?

A. Of course. If a man patent an improvement, he must patent the original article as improved.

Q. During how many years prior to 1856 was such an unframed tile as has just been shown you, to wit, the last exhibit, manufactured and sold in the city of New York?

A. As near as I can remember, between three and four years. Possibly full four years.

Q. Not any longer?

A. Not set with an instantaneously setting cement, I think.

Q. That is your best recollection?

A. That is my best recollection. I might have used it—

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Q. Have you any idea how many patents were outstanding in the year 1878, when we made our agreement with you, covering improvements and pretended improvements in tiles; in the framework that the tiles set in; in the glasses that were set in the tiles; in the sort of cement or bonding that was used to fasten the glasses to the tile, and even in respect of the shape itself of the tile—are you aware of how many distinct patents, real or pretended, were agog at the time we made our agreement with you?

A. As I, myself, held that time certainly forty, and there were probably twenty others, it is fair to assume an existence in 1878, of probably at least sixty patents of one kind or other of various things, but among them all there was not one that I remember for any improvement in any cement for setting the tiles, or in the way of setting the tiles by cement. I don't call to mind any.

Q. Now, all these patents, whose number you have approximately given; all these inventions, or pretended inventions, had for their ultimate motive the lighting of subcellars of some sort, did they not?

A. That question is very obscure. I can't say anything about what the motive was, unless I have some specific invention and patent brought to my mind. It may have been some purpose other than lighting.

Q. Was that one of the results, the lighting of sub-cellars?

A. If they had glasses in and put where they could light sub-cellars, certainly.

Q. You can't answer any further than that?

A. Of course, the question is too general.

Q. Prior to 1867 or prior to 1878 did you have any patent other than the one now in suit, or had you had any patent other than the one now in suit, which appertained to the laying of roof lights over areas or covered roof lights laid over areas?

A. Well, I can't answer a question so vague as

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that in one word. Before 1867, I don't think I had any patent, I am quite certain I had not, except the re-issue of 1845 patent. After 1867, and between that and 1878, I took out, I should judge, 40 patents for improvements on my invention.

Q. Please answer, in you can, the question whether some one of your original or reissued patents didn't cover the lighting of areas, basements and area, by means of these tiles and frames.

A. The 1867 patent.

Q. I said exclusive of that?

A. Am I to understand the word "original" as referring tot he 1845 patent?

Q. No, any patent or its reissue.

A. I can't undertake to tell you what my patents, that I took out so many of, some 40 or 67 in number, covered. I will answer to any one of those and tell you anything about it.

Q. I want to know whether you didn't claim and collect royalties, so called, for the laying of these roof lights for areas merely, without any regard to extended basements?

A. Where laid?

Q. I don't know. (Question repeated.)

A. Under my license of 1867 patent?

Q. No, I am excluding that.

A. I had no licensees under the other patents until the 1845 patent expired. I had a parent for illuminating doors something like that. Tell me some specific patent and I will answer.

Q. Mr. Hyatt, is it not the distinctive and distinguishing features of your Letters Patent of 1867, reissued in 1878, this, to wit: The illuminating of a basement and its extension, treated as one room, by means of these illuminating roofs, and likewise through the instrumentality of what you can an iron girder?

A. That involves an explanation of my invention, and, if you wish that, I am perfectly willing to give it. My patent of 1867, as reissued in the reissue of 1878, sets forth my invention to an illuminating tile or perfected vault cover. It sets

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forth my improvements in the old 1845 vault cover, to distinguish which improvements from that, I call my improved illuminating grating an illuminating tile—so stated in the patent. That patent also illustrates by the drawings and describes in the specifications, the application of these improved illuminating gratings, called illuminating tiles, in their combination as a roof to light basements. The pictures and drawings of the patent illustrate the lighting of a basement and show these improved illuminating gratings or tiles arranged as a roof over an area way or sunk area in front of a building. The drawing also shows a girder in place of an area wall, the web of the girder answering as the riser to the illuminating stoop shown in the drawing. The claims of the patent claim this arrangement of an illuminating stoop when there is an area wall there, and it also claims it when there is none and the girder is shown there; so that the patent of 1867 claims both the extension to the curb wall and also if there is no extension beyond the wall. It claims them both. It also claims the invention as an illuminating stoop or roof to light the basement whether the basement is extended or not.

Q. Now, please answer my question if you can. I want to know whether or not the distinctive and distinguishing features of your so-called invention are not, as I put in, in the former question? (Last question repeated.)

A. Not the distinguishing feature.

Q. What do you mean by these words—I read this to you for the purpose of giving you an opportunity to explain, ore than anything else (Reading.) "Now, although I have made my improvements in the architecture of buildings by means of the very best combination of iron and glass that can possibly exist, yet I wish it to be distinctly understood that the extension of basements under

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the street by means of an illuminating roof pavement is my invention." This is from page 35, folio 105 of the printed case. What do you mean by that?

A. I will say in answer to your question this: that I set forth in my patent first, as my invention an illuminating tile and state that I call it tile in order to distinguish it from my old vault cover of 1845. Then the specification of the patent goes on to point out the particular features that constitute my improvement in the illuminating grating covered by the patent of 1845. Then I go on from that to describe how I combine these tiles together to form roofs and when I have done that, then I select as my illustration of the value of my invention the application of these tiles in front of buildings over areas to light the basements and show and describe how they can not only be extended to the area wall, but beyond; and I did not claim, on the contrary I disclaimed in my original patent, being the first to invent an extended basement to the area wall and I go on there to show that the basement may, by the use of a girder in the way I illustrate in the drawings, be extended even to the curb by my lights. Then I give the reason of it, because my lights are of such construction of iron and glass, that they can be walked over. Before I made that invention, there was nothing existing but skylights—skylights made out of glass that could not be walked over, so much so that firemen were killed in going over roofs of houses.

Q. That is about all you can say in response to the question?

A. Yes, you were pushing me for an answer. My next patent that these drawings of mine show, is a basement extended to the curb wall. It was equally an extension when it stopped at the area wall and so I say and in my patent, claim.

Q. What you have to say to this statement in your re-issued letters of 1878, "My (His) original

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invention of the illuminating grating in the form of a vault cover was the work of but a single instant of time."

A. That is the 1845 patent.

Q. "My (His) invention of its application to the larger fields of usefulness herein described was the work of years.

A. This is true.

Q. Again, "By the old method of construction, as I found it, the basements of buildings stopped at the face line of the building?"

A. Yes.

Q. "The same as the story above it,"

A. That is true.

Q. "The space underneath the sidewalk was occupied as coal vaults."

A. True as gospel.

Q. "And these vaults at the building side were bounded by the area wall." Have you any explanation of that?

A. It don't need any.

Q. (Reading.) "The invention of the granite roof or sidewalk is not mine in itself."

A. That refers to the picture again.

Q. "It is mine only as any other roof or sidewalk connected with the iron girder T, and the illuminating area covering to form the roof of an extended basement is mine."

A. Yes; the roof of the extended basement is mine. Any man has a right to extend basements. I was not the inventor. It was done before I was born.

Q. Was the iron girder you speak of in your Letters ever invented before you?

A. Certainly, I have no right to an iron girder by itself, of course not. It is the combination.

Q. Was the combination of an iron girder with the illuminating roof invented or discovered before you?

A. Before me?

Q. Yes.

A. No, sir; not in that way; not in any such connection.

Q. And under your invention, the iron girder is valuable—under your invention so called?

A. In front of a building, you are talking about.

Q. Yes; the iron girder T, under your so-called invention, serves the purpose, does it not, of

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supplying that support which previously had been given by stone piers?

A. It did the work of the stone pier—stone wall, not stone pier—area wall.

Q. And thereby threw into one room the basement and its extension under the sidewalk?

A. Oh, yes.

Q. That is it, isn't it?

A. Certainly.

Q. You say no, that had not appeared before your Letters?

A. I don't say before my Letters, because I used girders on a basement extension in 1852. It was part of my invention to gain light. The way that I gained light was—

Q. You say that that was a part anyhow, of your invention?

A. It was in the particular way that I show. It was not an essential part of my invention at all; not of the roof lights; they could exist without it, and did.

Q. Prior to 1867, were not basements as well as areas in front of buildings illuminated by roof lights?

A. Only by me or some one—

Q. Were they not?

A. Certainly.

Q. Hadn't they been for some years?

A. I had got them introduced in 1852.

Q. Think of this question before you answer it. Prior to 1867, had not cellar basements as well as areas—area spaces been illuminated by these roof lights?

A. Certainly, I admit that.

Q. For ten or fifteen years?

A. Oh, yes; back to 1852; but I told you the reason. I told you I had applied for my patent in 1856.

Q. You are aware, are you not, of the law of this country which says nothing is to be patented that has been introduced to public use before the application is filed?

A. I am also aware that the Supreme Court of the United State in the Nicholson pavement case—where he had to make experiments in public—couldn't do it otherwise, said it was to his credit that he had them nine years in public use, and they would not deny his application. I could not make my improvements except under

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the rain of heaven. I did not lose my rights by that. I had a right to experiment.

Q. But, in a point of fact, prior to 1867, so far as you now know, had the basement and coal vault under the sidewalk and the intervening area space, all been thrown into one room through the instrumentality of the iron girder, and thereby illuminated through these roof lights?

A. They had by me only and those who either were licensed to use my invention or stole it.

Q. Mr. Hyatt, did your Letters of 1878, reissued, do they claim more or less than your Letters of 1867?

A. The patent shows for itself if there is any difference.

Q. What was your motive in getting out the Letters of 1878; wherein did you benefit yourself?

A. I did not benefit myself; it was a great mistake, I admit it frankly; that was the reason I reissued in 1881.

Q. What is the distinguishing feature of the patent of 1878, as contrasted with the patent of 1867?

A. The drawings are the same; the whole thing is the same; the 1867 patent was all jumbled together; it was only when you get to the 1881 specifications, that you have it clear; there is not a thing in the 1881 specifications and the drawings that I cannot point out to you in the 1867, original specification—every claim.

Q. So it is of this then, that the patent of 1878 was a model; you don't profess that it contains any more than the patent of 1867?

A. No.

Q. Does it contain as much as the patent of 1867?

A. I don't think it sets forth the matters clearly.

Q. (Question repeated.)

A. It contains all of the 1867 patent, because the drawings show everything; the drawings show the whole thing.

Q. Your lawyer said a moment ago that it was the claims that determined. Before proceeding to something else, I want to ask you wherein does the

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patent of 1878 different from the patent of 1867?

A. It don't differ in any essential particular, except that it is not full enough and complete enough in its explanation of the whole invention. I say this, and I call your attention to it; that the patent office won't allow any alteration in a man's drawings or model when he comes to a reissue. He can only claim and specify, and describe what his model or drawings or both show. What I mean to say is, that in as much as in the 1878 reissue, the exact drawings shown in the 1867 patent are there, it shows my invention by the pictures completely; the whole of it, and though I fail in that to as completely set forth my invention in the language that I ought to have done, still the invention is there and discovering this afterwards, I surrendered and reissued in 1881. The drawings form a part of the specifications in the very words and language.

Q. Do you profess to hold us under the Letters of 1878 or 1867?

A. 1867 as reissued in 1881—1878 and 1881 both. I hold you in them. The original patent is in the reissues.

Q. Have you any further answer to make to that question?

A. We took our agreement out under the Letters of 1878. Under the Letters of 1867 as reissued in 1878.

Q. That is in the decision of the Supreme Court under the Letters of 1878, which are the only ones, occurs the following language: "Having thus fully described my invention and shown some of the modification that may be made in it, without departing from its leading principles, what I claim and desire to secure by Letters is—1. An illuminated roof" (which he then proceeds to describe). What I claim second is, illuminating roofs (which he then proceeds to describe). What I claim is third, illuminating risers and treads and illuminating steps (which he then proceeds to describe). The only difference, I suppose, between what you call an illuminating roof and what you call illuminating

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risers and treads is, that one is a plain surface and the other a broken one; that is it, is not it?

A. I will answer the question altogether. if it is one used to form a roof, it is a roof.

Q. One is a plain surface and the other is a broken surface?

A. No, that is not a proper distinction. One is a vertical surface and the other is horizontal. Risers are vertical and treads are horizontal, and a platform is horizontal.

Q. (Reading.) "What I claim fourth is illuminating step-roofs (which he then proceeded to describe.) What I claim fifth is illuminating stoops (when he then proceeds to describe). What I claim sixth is illuminated basements, and basements extended underneath the footway of a street by means of a flat roof or sidewalk, in connection with, and by means of, illuminating gratings, constructed and combined substantially in the manner and for the purposes herein set forth." Now, in the sixth claim, do you mean or did you mean to use the word "and" or did you mean that it should read "or"—do you contend that the word "and" in the first line of claim sixth should read "or?"

A. Illuminated basements and basements extended underneath the footway—I mean clearly to claim illuminated basements, also.

Q. Wait a moment, do you mean that the word "and" should read "or?"

A. No, I do not mean that "and" should read "or."

Q. How do you explain the fact that in that claim 6, the word "area" is not used at all?

A. Because it was not necessary.

Q. Have you any other explanation to make?

A. I don't see any explanation to be made here. If this 6th claim were stricken out, I should be entitled to all that is in the 5th. I claim each thing that is set forth under these 6 claims.

Q. Why didn't you use the word "area" in that 6th claim?

A. I claim for all these, that the word area I did not think at the time was necessary to be put into the claim.

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Q. Why didn't you use the word "or" instead of the word "and?"

A. For a like reason, I didn't see any necessity for it. I expressed what I meant on the presumption, that this is a true copy of my patent, this being in the printer's hands; and it is in some other book.

Q. Why didn't you use the word "area" in your first claim?

A. I am very glad to have that question and to answer it. Mr. McCarthy asks me just the question I want to answer. Because my invention was an illuminating roof that could be used on top of the house as well as in the area. That is the reason. I meant, in that first claim, to cover broadly the illuminating roof anywheres, constructed or iron and glass substantially, because they could not walk over skylight. They could walk over my roof. I coined the word "illuminating roof," I invented it.

Q. Why didn't you use the word "area" in your second claim; in your third claim; fourth and fifth claim?

A. For the same reason; that I claim broadly in three lines in the first claim, an illuminating roof; then I claim it in its combinations. The second claim is "illuminating roofs constructed by forming illuminating gratings into panels or plates of suitable shapes, sizes and proportions to be mechanically fitted for combination with each other and combining the same by means of supports or framing, in connection with vertical and horizontal or bed packing and bolting, substantially in the manner and for the purposes as herein set forth and illustrated by the drawings." This very thing that I describe here is what is used and it took me seven years here in the city of New York before I could get my invention accepted by the public.

Q. (Reading.) "3. Illuminating risers and treads and illuminating steps composed of illuminating riser constructed of iron and glass according to the principle of an illuminating grating,

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substantially as herein set forth?"

A. I mean there distinctly to claim an illuminating roof when it is composed of illuminating risers and treads, forming illuminating steps. That was my invention.

Q. Let us read something more; what do you mean by this: "Be it known, that I, Thaddeus Hyatt, did make certain new and useful improvements in illuminated basements and basement extension, made by constructing and combining my patented illuminated vault covers or equivalent combination of glass and iron in connection with supports and framing, so as to produce, by the combination, roofs of such strength as to be suitable also to be used as sidewalks—that is to say, where the sidewalk serves the purpose of a roof to an underground apartment, the purpose of the invention where the roof is thus employed, being to enlarge the basement by the addition of the space underneath the sidewalk?"

A. Yes, sir; that was the application of my invention to my illuminated basements and basement extensions.

Q. Is that the purpose of your invention?

A. It is when I use it to make basement extensions; but my invention is the illuminating roof anywheres and I claim it in my patent.

Q. Your attorney in Washington, in January, 1882, was R. K. Elliot, Esq., was he not, now dead?

A. He was. I think that was the year he was the attorney of Mrs. Hyatt.

Q. Before that time he had been?

A. Yes, sir; from the time of the supplementary agreement, I think.

Defendants' Counsel.—Now, I want to call your attention, Mr. Referee, to a forfeiture directed to us, dated January 9th, 1882.

The Referee.—Is it in the record?

Defendants' Counsel.—Yes; we shall

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insist at the proper time that this accounting cannot go beyond that, anyhow.

Q. Now, Mr. Hyatt, did you receive royalties for an on account of roof covering of areaways prior to 1867?

A. Prior to 1867, the licensees were licensed under my old patent they paid me for my invention of an illuminating grating as it existed in the making of roofs; but before the 1867 patent, I had no patent to protect me specifically on roofs. I had only the patent for my original invention of the illuminating grating and I took it out in the form of a vault cover.

Q. Did you, prior to 1886, collect royalties for roof coverings over areaways?

A. I certainly did, because they were illuminating gratings, covered by my patent—my vault cover patent.

Q. And that cover was a frame composed of such tiles as the one we marked "Plaintiff's Exhibit 1, Nov. 18, 1887?"

A. Oh, yes.

Q. Do you know a manufacturer in New York by the name of French?

A. I do. I know there is such a man. I don't know him.

Q. Did you have a suit against French as long ago as 1870?

A. I don't remember that French was ever sued. He may have been when a great many suits were commenced.

Q. You don't really know?

A. I really could not answer to that, no, sir.

Q. You don't know whether it is true that you brought an action against him to restrain the infringement of your alleged right as an inventor of an area cover?

A. I should want to have the question more particular than that to know. Just as like as not he was sued. I don't remember specifically, nor upon what grounds. If sued at all it was upon the general grounds that others were sued on. I don't know that he was sued on the vault cover patent. I doubt if he was. That I cannot say.

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Q. You do not remember whether this action was brought to restrain under the Letters of 1845?

A. That I could not say.

Q. You do not remember the fact, anyhow?

A. No, he was out in Chicago. He may have been sued by my agent there. I don't know. I have no recollection.

Q. Do you know of any actions at all that have been brought by you or by your agents under the patent of 1845, to restrain from the manufacture and use of area coverings?

A. You say the patent of 1845?

Q. Yes.

A. Oh, yes. The only parties sued under the patent of 1845 were George B. Jackson & Co. and John B. Cornell.

Q. They are the only ones?

A. I don't think I sued anybody but those two to the best of my memory. I did not under the 1845 patent. That I think was in 1857. I may have sued Ingalls & Case but I am not quite certain.

Q. Do you know whether Cornell & Co. and Jackson were making at the time you brought suit against them a double or a single plate?

A. In 1858, it is most likely they were making a single plate, because I myself was using the single plate at that time. I had applied for the patent in 1856.

Q. To the best of my knowledge it was a single plate?

A. Yes, sir.

Q. Can you identify the dates when those suits were brought?

A. Well, those suits must have been brought in 1857 or 1858. I think they were closed in the early part of 1858. I judge the two were brought in 1857.

Q. Did you withdraw both of these suits?

A. Yes, sir. I licensed them. That is the way they were withdrawn, I did not withdraw the suits any other way than that. We let it out to Referees and they sustained the patent. The Referee sustained my patent and gave me $10,000 damages against them.

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Q. Who was the Referee?

A. Col. Richard M. Hoe, Warner, who was a lawyer, and Tucker, who was a mason.

By the Referee:

Q. John J. Tucker?

A. I don't remember. He built the Post Building; one of our oldest builders.

By Defendants' Counsel:

Q. You say you were paid $10,000?

A. Damages. I ought to have had $60,000. Col. Hoe sustained the patent and said that was worth all the difference; and the patent was respected after that.

Q. That was the patent of 1845?

A. Yes, that protected me up to 1873. They got the use of all my new things without paying me anything.

Q. You state or have stated that the use of covers—of tiles was known prior to 1857, and the use of tiles to form a roof covering over an area was also in use about 1857 or 1858?

A. I worked along from 1850 to 1856, when I applied for my patent for my improvements.

Q. I want to know of you what there is new—I want to give you an opportunity to explain, if you like, what there is new about the invention protected by the Letters of 1878?

A. 1867.

Q. Well, as reissued in 1878. You say there is some difference—what is there new about it?

A. In the first place, my improvement upon the old vault cover was making it in a single plate, and letting in the glass from the top side, so that if one should be broken, it could be repaired without disturbing dozens of them.

Q. Stop there. Let us take that up. How, then, do you explain the Exhibit No. 1 that has just been shown you, which is a single plate, which contains knob tile, knob glasses rather, you were right?

A. You were right, first.

Q. Knob tile, then, which bears the date of 1845?

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A. Because a single plate tile, bearing the date of 1845, was an illuminating grating, no matter whether it was made of a single plate or a double plate, it was an illuminating grating, and inasmuch as at the time I put 1845 upon that plate, I had not received from the Patent Office a patent for the improved tile which I had made, and it is just as much under the 1845 patent, that plate of a single tile, as though it was made of two plates, because it is an illuminating grating, broadly. That is the invention, and the invention patented by the patent of 1845 was a combination of iron and glass, in which the glasses and the openings in the tile were so small that, if every glass was broken out, the person or body passing over it was still sustained by the metal, and that was the original invention, and I was the inventor of it as against the whole world. They had no thick glass in this country, except pressed glass. It has come here since. In 1858, the first importation was made. That is an illuminating grating just as much as though it was made in two plates.

Q. The sum and substance of all your remarks is this. If what you say is true, you are attempting by the patent of 1867 to prolong or to resuscitate the alleged invention of 1845, are you not?

A. So far as the illuminating grating is concerned, yes, certainly, I had a right to.

Q. Your roof covering under the Letters of 1878, is, of course, made up of tiles made in a frame?

A. Yes, sir, usually. It might be cast in one tile.

Q. Well, tiles made in a frame, I don't care—now, in what respect do those tiles as units or individuals differ from this Exhibit No. 1?

A. It don't differ at all. Let me look at that. I believe it is the same thing. (Witness examines Exhibit No. 1, Nov. 18, 1887.) No, that is the sort of a thing that we call knob tile we used to make the extension work. That is basement extension roof tile. They do not put that on the top of the house with knobs on, usually.

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Q. Now, we will recur to the question put some time ago, which you have answered in part. Proceed and give any other element of distinction?

A. The invention patented by the 1867 patent was an illuminating grating of an improved character. It was my old invention patented in 1845, but in a new form, that is to say, instead of the grating being made of two parallel gratings, bolted together, with the glasses between, so that, to take one out, you had to disturb a dozen or two. My improvement, patented by the 1867 patent, was making it in one plate and letting the glasses in the top side, so that if one should happen to be broken—

Q. You have said that over and over again. Tell us something else?

A. Then, by reason of being able to let the glasses in from the top side and casting this illuminating grating in one plate, I was able to cast them in curved form; a variety of forms that could not be done practically where you come to have two plates put together. Now, I will give you an illustration for the benefit of the Referee. I made some covers to go to the Sun office, corner of Nassau street and Fulton. They were only about thirty inches in diameter. They were made according to my 1845 patent of two gratings bolted together, and I could not get gratings that were level enough to bring together. I had to bolster up the glasses with the greatest care from the under side, with plaster of Paris underneath. They were warped and always got warped. I never could see any other way of making illuminating roods until I got my single plate grating that would enable me to put them in any place, in any shape, curved or any other way—enable me to put these plates together in a floor bedded upon mastic with vertical cement run in and bolted hard down, and the whole thing is set forth in the 1867 patent, by which I made water tight joints and for four years I was troubled with leaky joints. The owners of property said, we

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will adopt your invention whenever you make your work tight. Old Cooley sent his letters after me and there was not one of these infringers who came near me for four years. I patiently worked until I got the double cemented joint, and at my own expense I took up all y work nearly, that had been laid, and got this perfectly water tight before I applied for my patent. Then my patent was stolen.

Q. Think it well over and see if there is anything else that differentiates and characterizes your invention of 1878 from the invention of 1845?

A. The invention of 1845 was a vault cover; it was not a roof tile; it was not in a condition to make roofs out of; nobody ever tried to do it with that either; not till I invented that tile (pointing out Exhibit 1), that is a tile, not until I invented that, was the making of roofs a practical thing.

Q. If, as you say, these knob tiles had been in use before 1858, and also had been in use before 1858 as roof coverings for areas, and basements, I must again ask you what there is new about the Letter that we are now investigating?

A. The putting in use was experimental until I applied for my patent. I applied for my patent that was granted in 1867, in March 1856, and all prior to that time was experimental work, and I had a right to do it. You point to the oldness of this thing; that has nothing to do with it.

Q. I want to know if there is anything new, tell me what it is?

A. The patent of 1867 covers the new things.

Q. What are the new things?

A. I have already told you, making a new plate and letting the glass in upon the top side; double demented joints, forming it into shapes called tiles. I invented the word "tile", it is my word "illuminating tile." Then they were able to put it together; bolt it together and extend it to surfaces of any size; that is the new thing; I did it for years

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before I applied for my patent, in the public streets because I had to.

Q. Is there any difference whatsoever, from your point of view, between the covering or an area and the covering of a basement and basement extension by means of these roof lights?

A. The area is the thing always to be covered, whether there is an extension or not; it is the area that lights the basement; that is the thing my drawings show; it is an area covering all the time; you may have a wall set up if you want it, but very few do it; it is the area that lights both ways.

Q. What I ask again is this, whether or not you claim that there is any difference whatsoever between the illuminating of the basement and basement extension, or merely the illuminating of an area?

A. The illumination is the same through my illuminating tiles or stoop over the area, whether the basement runs out and takes in only the area or runs beyond it, or whether the basement does not run out at all, and there are sash doors, it is all the same, my invention of these tiles and illuminating roof no matter where you put about a building, it is the same invention all over. I was making these in 1878, when I made this agreement; so was Ingalls & Mark; they were making identically the same things; I agreed to let them take that tile and apply it to the top roof or floors inside of the buildings.

Q. If that is all true, why don't you claim in this case, royalties on the manufacture and sale of tiles?

A. I do. In regard to the top roof and floors inside, I said by the supplementary agreement that I would not sue them again for that, even though they went on and made them. I would wait until the Court decided my claims.

Q. You have distinctly stated that you have no claim against us for tiles?

A. I beg your pardon. For all tiles that are used in making are coverings or basement extension work to light the basement.

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By the Referee:

Q. Do you claim for roofs and flooring?

A. Only the floors that light a sub basement.

Q. Isn't it a fact, Mr. Hyatt, that you claim royalties here upon tiles wherever they are used outside of the building?

A. Yes, sir.

Q. Except the roof?

A. Yes, sir, and I claim royalties from them if there is any floor underneath where the basement is extended by a sub-basement the same as Cooleys. Basement roof and basement extension work means all that lights a basement over an entrance. Sometimes we run them in several feet in the floor. Sometimes they are over an area in the sidewalk.

Q. I understand you claim also for royalties, if the tiling is used simply as an area cover outside of the building?

A. Certainly, that is true, yes.

Q. And more or less when there is an extension to the basement?

A. Entirely so.

By Defendants' Counsel:

Q. You did not understand my question. What I now ask you and what I did ask you before, is this: Under the definitions that you have been giving, why don't you claim royalties on tiles as tiles?

A. I do claim royalties on tiles as tiles. They agreed to pay me for all their work on tiles; not on "over-all measurements." The frame is just as much a part of my invention as the tile. I agreed with them that they should pay me on tiles. My old licensees used to trick me out of my royalties when paying me an on over-all measurements. When I found that out, I said, now,

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gentlemen, you pay me on tiles. You pay me for all tiles that go out of your shop up to the end of the quarter. That is the bargain with these gentlemen. They were to pay me for tiles. I never asked them for over-all measurements at all. It has nothing to do with basement extensions. I don't care whether they extended them or not.

Q. You do not regard, then, that it is an invention to have adapted these illuminating roofs, to the purpose of giving light to a basement and an extended basement?

A. I never said anything of the kind.

Q. (Question repeated.)

A. I certainly do consider that the adaptation and combination of my invention of an illuminating roof—I invented the illuminating roof—that is the claim in the 1867 patent irrespective of what part of the building it was in; whether the floor, top roof, extension or in front; and I also made a distinct claim to the application of it over the area to extend a basement and to light it. That claim stands by itself, and in the 1878 reissue there are five claims to my invention to the improved illuminating grating to one for the basement extension. There is but one claim in this reissue of 1878, that you talk so much about, for the basement extension. That might be cut off. I made these claims so distinct, if you chose to cut it off, I would be perfectly safe in my patent on the invention of the illuminating grating. It was the illuminating grating that they agreed to pay me for.

Q. Are you now contending for an invention that embraces not only the illumination of a basement and an extended basement consider as one room; but also, but an for an invention such as you have described, consisting of a tile with two plates, consisting of a double-cemented joint which will shed rain, &c, &c.?

A. My claim is that my original patent of 1867 covered the invention, so far as the Supreme Court will allow me. There was a day when I could have had everything that I showed

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in my drawings and described in my specifications. I could have reissued new claims. Now, they won't let me. I am content now to stand upon what the Supreme Court gives me. They give me the original claims, and if I leave any of those claims out in a reissue—and I have a right to throw it out—I go back to the original claims, because the Supreme Court has decided that all reissues relate back to the original. I threw up the 1878 patent because I claimed less, and I had to go back and claim all that was in the original patent.

Q. The point is this then—

Witness.—The 1881 patent claims all that the 1878 patent does. Any bad claims in the 1881 reissue would not kill good claims—remember that, Mr. McCarthy. Your clients could have sued under that, just as easy as under the 1878. No bad claims can destroy the good ones in a patent. Remember that the Supreme Court has decided that.

Q. Mr. Hyatt, the point was this under these letters, you consider yourself an inventor, not only of the illuminated basement and basement extension, but also of this tile, do you?

A. Yes, sir; and roofs and floors made out of my new tiles—the tile which is the improved illuminating grating.

Q. Now, that do you know about the return in February, 1879, of 11 square feet, 3½ square feet and 4½ square feet—do you know anything about it yourself? You testified here on the 10th of November that such return was made. Do you know what sort of work it was?

A. I cannot say at this moment. I have given in detail all the places that I did visit and testified to it. What you say there is some work that I pointed out as having been returned in those returns.

Q. Do you know what it was?

A. I never saw it. I don't know anything more than what the returns say, unless I subsequently examined it.

Q. How are you able to say that those were returns for tiles simply—you swear that this was

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returned for tiles simply?

A. The heading, I fancy of the returns themselves, says so.

Q. No, it does not. You have sworn positively that this was a return of tiles, simply?

A. Because they agreed to pay me. I do not suppose they were lying. Their oath was true, I suppose. They had agreed to pay me for illuminating tiles and returned them, and, when they returned them, I took them to be what they returned.

Q. How did you know that these things you swear to were simply tiles, and were not tiles used by us in constructing an illuminating roof for an extended basement?

A. Well, I could not answer in regard to that, certainly.

Q. Stop there?

A. No, sir. I will tell you why. Because it would be a very funny extended basement that took a piece of tile about half the size of this table to make it. Now, then, a thing of that size, I call a tile. Anything that is a few feet, I call a tile. That is common sense.

Q. In order, at that time, to get us compelled to account for tiles as well as for illuminating roofs, you went on and swore that we had actually rendered an account for tiles. You went on and specified these things. Now, I ask you how you know that these were not tiles used wholly or in part in an illuminating basement roof?

A. In your question you admit the answer you want me to make. You call them tiles. Illuminating roof is made up of tiles. The size of the thing shows what it was.

Q. You say that in the quarter ending November 1st, 1881, there was an item marked by you with a cross in pencil. "13 feet of tile." Now do you know, that 13 feet of tiling was not used in a basement extension roof?

A. No, I don't know anything about it. They have returned it.

Q. You say that it is the 13th item in the return of Royer Brothers, Philadelphia, Pennsylvania. Now, have you any further explanation to make of it?

A. It does not need it. The returns

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themselves are enough. They returned tiling. They agreed to.

Q. You say that in the return for the quarter ending February, 1879, that the sixth item to wit: at No. 52 Greene street, is an extension to the area wall only; how do you know that?

A. I went and saw and examined it.

Q. You say that the fifteenth item in the return ending August 1st, 1879, for 116 Chambers street, is a basement extension to the area wall only; how do you know that?

A. I went and looked at it.

Q. Did you also go to No. 367 Third avenue and look?

A. If I said I did, I did.

Q. You don't say so; did you go?

A. I can't call that to mind without my minutes.

Q. It is for the return ending November 1st, 1879; do you remember that?

A. I cannot call that to mind.

Q. Here is a little book you may remember (handing witness book)?

A. I remember that very well.

Q. You published it, didn't you?

A. I printed it, yes. I don't see what it had to do with this case, though.

Offered for identification by Mr. McCarthy, marked "Defts. Exhibit 1, for identification, December 12th, 1887."

LEWIS R. CASE, called for defendant, out of order, plaintiff not yet having rested:

I know Thaddeus Hyatt, and have known him since about 1850. I was a licensee under his patent of 1845. I carried on business in Centre street, in Mercer street, and at No. 5 Worth street in this city. I commenced manufacturing vault light in 1856, but I was not licensed until about 1859. I manufactured the spheroidal glass set in a

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taper hole—the glasses were about one inch and five-eighths in diameter; we used different kinds of cement to set them in. The tiles we manufactured after we came under the license, we had to call "Hyatt's Patent Nov. 12, 1845"; before that we manufactured under Ingall's patent, 1856. I know what business Mr. Mark is now doing, and has been for the past 14 years. he is making the same kinds of work that I made, and putting it down, and has been doing it since I went out of business 14 years ago. Since 1862, then, I made the same kind of work, and put it down that Mark is now doing. Other manufacturers as early as 1862 did the same work that Mark is now doing. I think I know what Hyatt's patent of 1845 was. All the tiles that I made and laid down were of one plate. Rockwell patented a vault cover with one piece of glass on it. Mr. Hyatt's patent was a perforated plate filled in with glass, the perforations so small that when the glass was broken out, the perforated plate would protect the feet of persons passing over it. Prior to 1867, I constructed and laid down illuminating roofs over area spaces of buildings, I mean illuminating roofs composed of these tiles. I commenced in 1856, and made these roofs all the while. The area roofs which lighted the basement as well as the area. I know the sort of roofs that Mark has been laying over areas. In many cases it was very similar in principle to the roofs that I have been laying. I frequently did glazing for other people who furnished the tiles. I did this glazing for J. B. & J. M. Cornell, George J. Jackson & Co., James L. Jackson & Bro. architectural works, and many others. I have sold any quantity of single plates.

Witness' attention is called to Exhibit No. 1, of November 18th, 1887, and he states: I have made tiles just like this before 1867, and as early as 1862. It was in our license from Hyatt that we

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were required to put upon each piece of work "Hyatt's patent. Nov. 12, 1845."

Cross-examined by Plaintiff's Counsel:

I was at one time with Joshua K. Ingalls, from 1856 to about 1858 or 1859. I sold out my business to Thaddeus Hyatt. I suppose Joshua K. Ingalls had considerable knowledge and experience as to this vault light business. All the facts I have testified to I suppose were known to Mr. Ingalls. The Joshua K. Ingalls I have referred to was after wards in partnership with the defendant Marks. While Ingalls and I were in business we have placed these illuminated tiles over area, and where the areas illuminated the basements as well as the space directly below. While with Mr. Ingalls we also used the illuminated steps and risers as a roof to light the areas and basements. We also used the illuminated tiles as a roof covering to light the area and basement and the space beyond the area out to the curb. We laid quite a number of illuminated roofs to light basement extensions while I was with Mr. Ingalls. Mr. Ingalls and I were in business about three years. I think it was between 1856 and 1859.

JAMES C. FRENCH, a witness for defendants, being sworn, testified:

I am a manufacturer of vault light since 1872 or 1873. I know Mr. Thaddeus Hyatt by reputation for several years.

Witness shown Exhibit No. 1, of November 18th, 1887.

This tile has been made and used to my knowledge as a vault cover since 1859, a single plate like this. I have never seen a double plate covering an area. Areas have been covered since 1859 by roofs

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made constructed of tiles like this exhibit. I put up steps and risers that year to form stoops composed of these tiles. Tiles were glazed by some people for others as long ago as 1859. I did not do it until I went into business for myself. Mr. Hyatt has sued under his patent in about the year 1880. He also sued one of my customers. It was the 1867 patent, I think. It was the basement extension patent. My customer was sued for a job I had done for him. It was an area covering in Peck Slip. It was not a basement extension covering. I have not heard of this suit for many years. I have no knowledge personally of what became of this litigation, I have been told. I have heard nothing further of it. I paid nothing to Mr. Hyatt. I have continued to do the same kind of work, and did it before. I have never paid any royalties to Mr. Hyatt. Mr. Hyatt has me for no royalties except by commencing the suit I have mentioned, and one suit before, and writing threatening letters to my customers. In the year 1872 or 1873 I started in this business in the city of Chicago, and very soon after we started, suit was brought against us by Mr. Hyatt as plaintiff, under his 1845 patent; an injunction was applied for, and we were required by the Court to deposit with the Court a royalty monthly, pending the decision of the Court.

We deposited about $7,000 in all. The suit was withdrawn. We got back the royalties and continued our manufacture; and there was no other suit against us except those mentioned, and I have never heard of his maintaining a successful suit against any one for the laying of area covers. Prior to 1865, areas were covered in New York very generally by these tiles. These single plate tiles have been used ever since my knowledge of the business—1859.

Cross-examined by Mr. McMasters:

In 1859 I first had knowledge of basements being roofed by illuminating tiles like Exhibit No. 1.

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My first knowledge of basement extension was about 1872 or 1873. I put down that kind of work in Chicago myself. In my opinion, there is not a particle of difference between roofs made of said tiles, No. 1, for area covering and roofs made of said tiles for basement extensions; it is the same thing. My first knowledge of patent light was in 1859, when I worked for Hyatt & Brown, in Boston. I worked for them quite a number of months. I next worked in patent lights in 1871 or 1872, for Mr. Brown, in Chicago. Between 1859 and 1872 I was not working in patent lights. Part of that time I ran a machine shop in Maine until the beginning of the war, and then I went on a farm.

Mr. Hyatt proceeded to make corrections in his previous testimony as follows:

On the fourth page of the stenographer's minutes, dated the fifteenth of November, 1887.

"Q. Don't you know that the Dale Tile Company have the exclusive patent for their concrete tile?" My answer refers only to the Dale patent of March 7th, 1871.

My answer to the question "Q. When did the fusible joint first appear as an element in this invention?" was made under a misapprehension of the question. My correct reply is now this: "A. It appeared in the vault covers and tiles manufactured by me in 1852, possibly earlier, but I did not consider that I had it in use for two years, when, in 1853, I lodged my claim to it in the Patent Office in Washington; the same being carried over to the 1856 application, which, after being shelved for eleven years, was taken up and granted in the 1867 patent. The single plate grating with rebated seat in the upper face, as to which I have been inquired bout, is shown in the 1855 reissue of my 1845 vault cover patent; but the glasses there were fixed by mechanical means. The single plate

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grating existed also in the tile form as early as 1850, the glass still fixed by mechanical means, the glasses being lead belted.

I desire also to explain and correct where they need correction, my answers to the questions on the eighth page of said stenographer's minutes, the answers running over to the fourteenth page, commencing with "Q. What did you consider that you invented under and by virtue of the Letters Patent issued to you in 1867—what is the invention so called of 1876?" To these questions individually and collectively I reply as follows:

A. The coalhole plate or vault cover of the 1845 patent, as re-issued April 3d, 1855, was the illuminating grating. The tile of the 1867 patent was also the illuminating grating, but not a coalhole plate—its function, and wherein it differs from the coalhole plate, is indicated by its name, tile. The 1845 patent covered simply manufacture, but the 1867 patent covered with manufacture and construction, the tile being the manufacture, the roof made of the tiles the construction. The patent was intended to secure to the patentee the right to manufacture his tile as well as to make his construction, the tile having no function and no purpose other than that of a construction material gave no advantage to any one of its manufacture who had not the right of its construction. It was upon this view of the case and on this theory that the licensees of 1878 took their licenses, the subject having been thoroughly canvassed between us.

On the twelfth page (November 15th, 1887) is a question and answer which puts me totally in the wrong. I am represented as saying that on this accounting the defendants are bound to return and pay for all sorts of tiles in any matter and wherever laid. I never dreamed of saying anything of the sort. What I mean to say is, that they were bound to pay only for the tiles which they have made or sold to be used for area work or basement

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extension—that is, for tiles and roofs laid as pavements to be walked over.

On the fifteenth page under date of November 18th, 1887, I am credited with the following statement, viz.: "My next patent that these drawings show is a basement extended to the curb wall." There is no sense in this, and I must decline the responsibility also, to the following on page 21: "That is in the decision of the Supreme Court under the Letters Patent of 1878." There is no sense in that—I could not have said that. Then on the 24th page the following, namely: "This being in the printer's hands, and it is in some other book."

The gleam that shines through this sentence indicates that I was trying to say that reprints of patents in law cases were sometimes incorrect.

Under date of December 12th the following sentence on the 13th page is quite out: "I agreed to let them take that tile and apply it to the top roof or floors inside of the building." I never said it.

And the following: To the question "Why don't you claim royalties in the manufacture and sale of the tiles" I am represented as answering "I do in regard to the top roof and floors inside." It should read, "I do, but not in regard to the top roofs and floors inside."

THADDEUS HYATT, a witness recalled on behalf of the plaintiff, testifies as follows:

I made the agreement to license to the defendants in this action; I was myself engaged, and had been for years, in the manufacture of tiling, and these parties also were at the time of this agreement—at the time of the making of it; and we had discussed the matter as to the tiling being public property. I deemed that as the patents stood we could not enforce the patent against the tile making, but I said, "What is the

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use of it, if they cannot use it, and if the patent is good for construction work we can stop them the moment it is put down." I saw this to these defendants; and I said also, upon their solicitation, at least, they asked me whether I would give up the manufacture of these tiles, and I said I would, and let them take the work, provided they would pay me the royalties; and I would also withdraw all the suits against them for infringement, that were then pending against them. I was in Europe at the time, and the suit was brought by my brother in the name of the patentee. I took the grounds that the patent was good at all events for all illuminating tile construction no matter where it was put about the building, and they wouldn't consent to that; but they confessed that the patent might be made to hold for all this tile doorwork basement extension work, and they said that if I would give up the making of that and let them take it, and would wipe out all these suits, that they would take their license and help sustain the patent. After this conversation this agreement was made—this agreement was the result of it, and I went out of the business and they have had it ever since. I was manufacturing at No. 25 Waverly Place in this city at this time. This kind of work is work that I have called in the license, "basement extension work," and in the supplemental patent I have called it "basement extension roof." When the old license of 1845 was drawn by Judge Blatchford, of the United States Supreme Court Bench, he was very particular to specify each thing, the treads and risers and steps and platforms.

Counsel for the plaintiff reads in evidence the license or agreement made the 21st of November, 1878, between Mrs. Elizabeth A. L. Hyatt, Thaddeus Hyatt, Theodore Hyatt, J. B. & J. M. Cornell, Ingalls & Mark, and Bartlett, Robbins & Company, on page 9 to 12 of the printed case.

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Paper marked Exhibit No. 1 of this date, being Exhibit "A," attached to the complaint in this action.
Counsel for Hyatt offers to prove that under said agreement a license was issued in all respects similar to the license issued to J. B. & J. M. Cornell, under this agreement, to the defendants.

Counsel for the plaintiff also stated that they offered Exhibit No. 1, which is put in evidence, to show that after taking of the said license, J. B. & J. M. Cornell rendered collateral accounts and paid royalties thereon for the basement extension work and the area work.

Counsel for plaintiff also offers in evidence license to defendants, being Exhibit "B," attached to this complaint.

JACOB MARK, a witness recalled by the plaintiff, testifies as follows:

I have done as much as I could to ascertain those facts that I was to look up. I have done all I could do. You wanted to know what the prices for that stoop No. 42 and 43 Wooster street was. It was $1,125. At No. 1 Water street the price for that work was $600. That was for Cook & Radley from Sept. 1882 to October 1882, that is only glazing tiles.

Then I see here Andrew J. Campbell, a job for August 1882, at No. 36-38 Barclay street; that was a repairing job, damage by fire. We put in some risers and put in some new and broken tiles. I don't know what it was for; I have not seen it, but I know it was repair work. I think it was for risers under the platform, it being either area work or basement extension work. I never made any return

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for that work to Mr. Hyatt, nor the original work of which that was the repair work.

Q. What else have you down there, Mr. Mark?

A. I have here John Curry—one piece of concrete tiling and one piece of concrete step—we got them made by the Dale Tile Company. I can't tell what they were used for. We did not lay them. We got them from the Dale Tile Company and they paid us for having them laid for them. We did not lay the work there. But I rendered a bill for the work and asked pay for it. I made no effort to find out what that work was for, whether basement extension or area work. I did not.

Q. What else have you down there?

A. There is Johnson & Brothers, December and January 1881, up to 1882—that was simply glazing tiles, they furnished their own castings. I do not know where those tiles were used. They could be used for floors or anything else.

Q. Were they adapted to be used for outside work?

A. Yes, they might be used for that.

Q. What was done in the matter of Johnson Bros., have you looked up the entries in that matter—that was in March or April 1883, I think?

A. Yes. sir. I furnished one platform. I can't tell where that went—it says: "Furnished one platform of Ingall's patent." That was for basement extension or area work, it could be used for that. That is all you did in either April or March, for Johnson Brothers.

Q. What else is there?

A. S. B. Ferdon, is my last entry, December 9th, 1881.—One plate three feet two by two feet six, and one piece one foot square. The balance from April 1883 was all repair work that was done for Ferdon. There was one tile that could be used for sidewalk or under the stoop. To light the area and the steps below.

Q. There are three entries under the head of Cook & Radley—one Nov., 1882—platform and skylight—37 East Nineteenth street—do you

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remember that work, where was that platform used?

A. In the area—to light area.

Q. Was that for basement extension or area work, according to your understanding?

A. I don't know if Cook & Radley put down the castings or not—Cook & Radley called for the patent—we had to put the glass in, but I think Cook & Radley put in the castings; the skylight we put up ourselves, but all the work—the platform, &c.—it was to be used outside of the building to light some place below; the item, Cook & Radley, December 1882, three stoops, State street, I remember that work; it lights the opening over the covered vault, except at the stoop; February 1883, Cook & Radley, vault light at Greenwich street; that was a dead light laid on the area to light it.

Counsel for Hyatt desires to except to the several items on Exhibit A of May 16th, 1885, with the same force and effect as if he filed written objections to the account.

The Referee.—You move that the account be surcharged with those items?

Plaintiff's Counsel.—Yes, sir, I do.

The following stipulation was entered into:

It is hereby stipulated in view of the fact of the account having been surcharged, as aforesaid, by certain items, the defendant on his part not asking for an adjournment, in order to obtain time and opportunity to examine the several items in the surcharged account; the plaintiff on his part hereby consents that the Referee shall not consider any of the items thus new surcharged, if the said items shall not hereto have been testified to by the defendant Mark.

By Mr. McCarthy:

I have gone over all of those exceptions files to my account, advised about each and every one

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of them. None of those exhibits concerns basement extension work; the first, second and third Exhibits, for work done on the Aldrich estate, and fifth Exhibit, also for work done on the Aldrich estate was for area covering; the sixth Exhibit, also for work done on the Aldrich estate, was area covering; the fourth for work done for E. S. Church, Dec. 11th, 1882, for the Aldrich estate on Church street; that was area work also; the seventh Exhibit, work done for Cochran was single plates and tiles; the 8th, 9th, 10th, 11th, 12th, 13th and 14th Exhibits, work done for C. Vreeland was area covering and single tiles, and copper boilers; the 15th Exhibit—work done for C. Vreeland was for covering a boiler house, basement extension; the 16th, 17th, 18th, 19th, 20th, 21st, 22d, 23d, 24th, 25th, 26th, 27th, 28th, 29th, 30th, 31st, 32d and 33d Exhibits—work done for Cook & Radley was area covering and glazing tiles; the 34th, 35th, 36th, 37th and 38th Exhibits—work done for E. G. Smyser was for laying single tiles; the 39th, 40th, 41st, 42d, 43d, 44th, 45th and 46th Exhibits—work done for S. J. Creswell, was some single plates and tiles. The 47th, 48th, 49th, 50th and 51st Exhibits, work done for A. J. Campbell; some is accounted for as basement extension and the other part of it is not.

Q. All that is for basement extension you accounted for, didn't you?

A. Yes.

Q. What was the rest?

A. Was for area work; the 52d Exhibit—work done for Blake & McMahon & Co. was area covering; the 53d Exhibit—work done for Peter Dugro, was setting single plates; the 54th and 55th Exhibits, for G. S. Lincoln & Company, was glazing and single tiles and he furnished his own castings; the 56th, 57th, 58th, 59th, 60th, 61st, 62d, 63d, 64th, 65th, 66th, 67th, 68th, 69th, 70th, 71st and 72d Exhibits—work done for Burnett & Company was nothing but glazing—the glazing was done by the Dale Tile Company and

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Burnett & Company furnished their own castings; the 73d, 74th and 75th Exhibits—for Vaughan & Pfeiff was glazing tiles, and Vaughan & Pfeiff furnished their own castings; the 76th, 77th, and 78th Exhibits—work for Roger Brothers was setting single plates; 79th, 80th, 81st, 82d, 83d, 84th, 85th and 86th Exhibits—work for E. L. Cook was furnishing frames and tiles; that was for area work; the 87th Exhibit—work for S. B. Ferdon was area covering; the 88th, 89th, 90th and 91st Exhibits—work done for S. J. Stevens was setting single tiles; the 92d, 93d and 94th Exhibits—work done for Thomas H. Burns was setting single tiles; the 95th Exhibit—work done for Edward Smith was the same thing, door and frame work; the 96th and 97th Exhibits—for Samuel McCullough was area covering; the 98th, 99th, 100th, 101st and 102d Exhibits—work done for the Dale Tile Company glazing tiles, they furnished their own tiles; the 103d and 104th Exhibits—work done for Ball & Co., was setting single plates; the 105th, 106th and 107th Exhibits—work done for Robert Wilson was the same as the last; the 108th and 109th Exhibits—for Westing & Haffers was are covering; the 110th Exhibit—work done for James McKinney was selling single tiles; the 111th Exhibit—work for the Sanitary Manufacturing Company; I furnished the castings and they furnished the glass; the 112th Exhibit—work done for Tice & Jacobs; I did not do any work for them; the 113th Exhibit—work done for E. R. Guy was selling single tiles.

Q. Now, Mr. Marks, when did you last see these two Exhibits A and B which have been added to the account—Exhibit A, for example which has just been added to the account?

A. I cannot remember, some years ago I think; I have not at present a personal knowledge of what the contents of these exhibits are; the making of returns heretofore or prior to this suit, was in charge of a young man by the name of J. W. More; if it be true

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that I did occasionally make returns for area work or single tiles, it happened it was through a mistake.

Q. As regards what Mr. Hyatt said, that conversation where he said much was discussed about his bringing suit against you, or withdrawing suits, what is there in that?

A. Mr. Hyatt came to us, Ingalls & Mark, before the licenses were drawn, and made us an offer; he said that he was going to return from business, that he had lost about $10,000 a year while his brother was carrying on the business in London, and he wanted to know why he could not take the licenses for and under the basement extension work. We discussed the matter and finally agreed to do so, we came to some sort of understanding about taking licenses.

Q. Now how many years before this time had you and other been carrying on the area covering working with this illuminating roof material, and with just such tiles as are represented in Exhibit 1?

A. When I first came into the work in that line of business, it was in 1857; we then made the same tiling as this Exhibit 1, speaks of.

Q. How long do you recollect had area covering been carried on—how long had that sort of work been carried on?

A. At that time it was carried on; we covered areas then and from that time on, and ever since have done the same kind of work right along and did not render royalties; I first covered with this illuminating tiling, what you can basement extension work, when I worked for S. B. Althause, in 1859, and also when I worked for T. Hyatt in 1859; at the same time that I was covering areas, I covered basement extensions with these tiles.

Q. Where you used the word "area" in your testimony to-day, do you mean simply roofing of illuminating tiles to light the space below where the space runs simply out of the area line and stops?

A. In some cases it runs merely inside the building, and in others it runs to the wall beyond.

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In some cases the tiling is carried below and beyond the area wall, I mean the exterior area wall.

Q. Which do you call the area?

A. Well, it is out sometimes five or six feet high, and that distance from the building line. It depends somewhat upon how wide the street is; that wall might extend to the outer end of the sidewalk; I believe there was a suit pending against me about the time of the making of this agreement with Mr. Hyatt; I am not sure whether I was sued—it may be that some of my customers were; I won't deny it; I can find out though; I know there was a great many suits brought at that time. After the making of this agreement and license, I commenced a suit, I and the licensees, against Mr. Hyatt and his wife, and charged that they were manufacturing under this patent, and thereupon you obtained an injunction against them; and then subsequently our controversies were again settled and the supplemental agreement of 1880 was made, I believe; I remember the supplemental agreement, I remember something about it. Plaintiff's Exhibit E, of printed case, that is the agreement I made after I obtained the injunction.

The foregoing contains all the evidence taken before the Referee.

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Plaintiff's Exhibit A, Dec. 27, 1887.

ORIGINAL PATENT.

No. 4,266.

THE UNITED STATES OF AMERICA.

To all to whom these Letters Patent shall come:

Whereas, Thaddeus Hyatt, New York has alleged that he has invented a new and useful improvement in vault covers, which he states has not been known or used before his application; has made oath that he is a citizen of the United States; that he does verily believe that he is the original and first inventor or discoverer of the said improvement, and that the same hath not, to the best of his knowledge and belief, been previously known or used; has paid into the Treasure of the United States, the sum of thirty dollars, and presented a petition to the Commissioner of Patents, signifying a desire of obtaining an exclusive property in the said improvement, and praying that a patent may be granted for that purpose.

These are, therefore, to grant according to law to the said Thaddeus Hyatt, his heirs, administrators, or assigns, for the term of fourteen years from the twelfth day of November, one thousand eight hundred and forty-five, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said improvement, a description whereof is given in the words of the said Thaddeus Hyatt, in the schedule hereunto annexed, and is made part of these presents.

In testimony whereof, I have caused these Letters to be made Patent, and the seal of the Patent Office has been hereunto affixed.

Given under my hand at the City of

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Washington, this twelfth day of November, in the year of our Lord one thousand eight hundred and forty-five, and of the Independence of the United States of American the seventieth.

JAMES BUCHANAN,
Secretary of State.

Countersigned and sealed with
the Seal of the Patent Office.

EDMUND BURK,
Commissioner of Patents.

THE SCHEDULE REFERRED TO IN THESE LETTERS PATENT, AND MAKING PART OF THE SAME.

To all whom it may concern:

Be it known that I, Thaddeus Hyatt, of the city of New York, in the State of New York, have invented certain new and useful improvements in the manner of constructing an Illuminating Vault Cover for the closing of openings from streets or yards into vaults, and through the decks of vessels into cabins, as well as in other situations where it is important to admit light, and to so arrange the parts as that the glass through which it is to be admitted, shall be protected from injury; and I do hereby declare that the following is a full and exact description thereof:

The covers for vaults, &c., which have been fitted with glass, have, as heretofore constructed, consisted in general of a metal rim, which was made to contain a large plano-convex glass;

These glasses are extremely liable to fracture, and when broken, leave large and dangerous openings within their rims; and from their thickness, and their soon becoming scratched over their whole external surface, the quantity of light admitted by

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them is much less than would seem to be due to their size. To obviate these objections, I have so contrived my illuminating vault cover, as to admit the light through a considerable number of small glasses, or lenses, which are so set into the iron cover, as effectually to defend them from injury by the falling or pressure of weighty bodies upon them, or from the expansion or contraction of the metal, they being protected by knobs, or protuberances on the iron cover, and defended also by being set in a framework of wood, or of soft metal, or of wood and soft metal combined, which will yield to percussion, and this aid effectually in preventing the breaking of the glass. In situations where it is desirable, I combine a ventilator with my vault cover, in such a manner as to allow a current of air, or vapor, to pass freely, whilst the entrance of water from without, under ordinary circumstances, is prevented.

In the accompanying drawing, fig. 1 is a top view of my Illuminating Cover; fig. 2 is a vertical section through it in the line x x of fig 1. Fig. 3 represents the under side of the cover with the ventilator attached; A A are the glasses, or lenses, of which I have shown twenty-eight in four rows, as set in a cast iron plate, B B; those lenses that I have actually made have been about seven-eighths of an inch in diameter, but they may safely be made of double this diameter or more; and where the ventilator is not wanted, they may, of course, be made to occupy the part where that is shown as being situated. In the section fig. 2, the form which I have given to the glasses is that of the lenses; and the manner of setting them in wood is fully represented. C C' are two laminæ of wood, in the uppermost of which the lenses are affixed in such manner that as their convex faces shall project above the surface of the iron casting; the lowermost piece bears on the edges of the lenses, and keeps them in place; the whole are confined together by screws and screw-nuts, a a.

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On the face of the plate B B, on each side of the lenses, there are cast knobs or protuberances, b b, which should rise a trifle higher than the most convex part of the lenses, and which will thus effectually protect them from injury. If preferred, the piece C' that holds the glasses or lenses may be made of lead, pewter, or other soft metal. I prefer to make my illuminating glasses circular, and convex on one side, as represented; but they may be made square, or in other forms, and have their faces flat, under a combination and arrangement substantially the same with that described; I do not intend, therefore, to limit myself to any particular number or form of the glasses.

In fig. 3, the manner of fixing the ventilator is shown; it is made similar to the lattice ventilator, or damper in common use, consisting of two perforated plates, c and d, one of which slides upon the other, so as to admit, or prevent, the passage of air. The air or vapor passes in or out at openings provided at e e in the plate B B. These openings have ledges on their lower sides which prevent the influx of water from rain, excepting the pavement were actually flooded.

Having thus fully described the nature of my improvements in the Illuminating Vault Cover, what I claim therein as new, and desire to secure my Letters Patent, is the combining with the covering plate B B, a series of glasses of any suitable form, or of lenses such as are shown at A A; said combination being affected substantially in the manner described, by the aid of laminæ of wood, or of soft metal, as shown at C C', and the glasses or lenses being defended from injury by knobs or protuberances, as herein set forth.

THADDEUS HYATT.

Witnesses:

WM B. AITKEN, of New York.

ALFRED B. KETCHUM, of New York.

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REISSUED PATENT

No. 303.

THE UNITED STATES OF AMERICA.

To all to whom these Letters Patent shall come:

Whereas, THADDEUS HYATT, of New York, N. Y., has alleged that he has invented a new and useful Improvement in Vault Covers (for which Letters Patent were issued to him, dated 12th November, 1845, which letter having been surrendered by him, the same have been cancelled, and new letters ordered to issue to him, on an amended specification), which he states has not been known or used before his application; has made oath that he is a citizen of the United States; that he does verily believe that he is the original and first inventor or discoverer of the said improvement, and that the same hath not, to the best of his knowledge, and belief, been previously known or used; has paid into the Treasury of the United States the sum of fifteen dollars, and presented a petition to the Commissioner of Patents, signifying a desire of obtaining an exclusive property in the same improvement, and praying that a patent may be granted for that purpose.

These are, therefore, to grant, according to law, to the said Thaddeus Hyatt, his heirs, administrators, or assigns, for the term of fourteen years from the said twelfth day of November, one thousand eight hundred and forty-five, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said improvement, a description whereof is given in the words of the said Hyatt in the schedule hereunto annexed, and is made part of these presents.

In testimony whereof, I have caused these Letters to be made Patent, and

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the seal of the Patent Office has been hereunto affixed.

Given under my hand, at the City of Washington, this third day of April, in the year of our Lord one thousand eight hundred and fifty-five, and of the Independence of the United States of America the seventy-ninth.
ROBERT MCCLENNAND
Secretary of the Interior.

Countersigned and sealed with
the Seal of the Patent Office.

S. T. SHUGERT,
Act'g Commissioner of Patents.

THE SCHEDULE REFERRED TO IN THESE LETTERS PATENT, AND MAKING PART OF THE SAME.

To all to whom these presents shall come:

Be it known that I, Thaddeus Hyatt, of the city, county and State of New York, have invented certain new and useful improvements in illuminating vault covers, for the closing of openings from streets or yards into vaults, and through the decks of ships as well as in other situations where it is required to admit light and exclude rain, &c., of which the following is a full, clear, and exact description, reference being had to the accompanying drawings, making part of this specification, in which—

Figure 1 is a plan or top view of vault cover on my improved plan;

Figure 2, a vertical section thereof; and

Figure 3, a bottom view;

Figure 4 is a plan of a modification of my said invention;

Figure 5, a vertical section thereof; and

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Figure 6, a bottom view;

Figure 7 is a plan of another modification of the said invention;

Figure 8, a bottom view thereof; and

Figure 9, a section.

The illuminating covers used for the purposes above enumerated, as constructed prior to my said invention, consisted of a metallic rim, made to contain a large plano-convex glass. As these glasses in most places had to be walked over, and were exposed to the passage over them of heavy and rough bodies, and often to heavy blows, it was necessary that they should be made of great thickness; for when broken, a large hole was thus opened, dangerous to persons passing over them, and at the same time exposing the vault, room, cabin, &c., to rain, fire, &c. The great thickness of such glass obstructed the light, which evil was increased by the scratching of the entire surface necessarily exposed; but, notwithstanding the greatest practical thickness of glass adopted, they were still much exposed to breakage and all its consequences. Another difficulty was, that be reason of the great size, the expansion and contraction of the surrounding metallic rim by changes in temperature, rendered it impracticable to make the junction of the glass and metal water-tight.

By my invention all the above difficulties are avoided, and my said invention consists in making such covers of a metallic grating or perforated metal plate, with numerous small holes or apertures for the reception of glass, of such size that, without the insertion of glass, persons can walk over them with entire safety; thus employing the metallic grating or perforated plate for the support of persons or bodies passing over or falling upon them, whilst the apertures for the admission of light are provided with or closed up by glass, for the sole purpose of protection against water, fire, &c.

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Thus greater strength and security against burglary is obtained by substituting the strength and toughness of metal for the fragility of glass; more light can be admitted, notwithstanding a portion of the area is occupied by the grating for the reason that much thinner glass can be used, more readily disposed to spread the light to advantage, and, if desired, can be partially protected against scratching; and what also is of practical importance, water-tight joints can be secured, because the area of each piece of glass is so small that the expansion and contraction of the metal will not affect the joint.

In figures 1, 2 and 3 of the accompanying drawings, A A are the glasses or lenses, of which I have shown twenty-eight in four rows, as set in a cast-iron plate B B; those lenses that I have actually made have been about seven-eights of an inch in diameter, but they may safely be made of double this diameter or more; and where the ventilator is not wanted, they may, of course, be made to occupy the part where that is shown as being situated. In the section fig. 2, the form which I have given to the glasses is that of lenses, and the manner of setting them in wood is fully represented. C C' are two laminæ of wood, in the uppermost of which the lenses are affixed in such manner as that their convex faces shall project above the surface of the iron casting; the lowermost piece bears on the edges of the lenses and keeps them in place; the whole are confined together by screws and screw-nuts, a a. One the face of the plate B B, on each side of the lenses, there are cast knobs or protuberances, b b, which should rise a trifle higher than the most convex part of the lenses, and which will thus effectually protect them from injury.

If preferred, the piece C' that holds the glasses or lenses, may be made of lead, pewter, or other soft metal. I prefer to make my illuminating glasses circular, and convex on one side, as represented; but they may be made square, or in other

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forms, and have their faces flat. I do not intend, therefore, to limit myself to any particular number or form of the glasses.

In figure 3, the manner of fixing the ventilator is shown. It is made similar to the lattice ventilator or damper in common use, consisting of two perforated plates, c² and d, one of which slides upon the other, so as to admit to prevent the passage of air. The air or vapor passes in or out at openings provided at e e, in the plate B B; these openings have ledges on their lower sides, which prevent the influx of water from rain, excepting the pavement were actually flooded.

In figure 4, 5, and 6, A' represents a metal plate ribs, B', below to give additional strength when required, and with rows of holes between the ribs, in which the glass lenses or blocks D', are inserted with suitable mastic or other substance interposes to secure water-tight joints. The lenses or blocks of glass are molded or pressed of a slightly conical shape, so as to set in the holes, and then over the hole is placed another plate E', corresponding in size to the plate A' and having corresponding holes to fit over the glasses.

This plate is secured to the bottom plate by screws or bolts, F', at proper intervals. An illuminating grating or perforated plate thus constructed, and provided with numerous glasses, which can be made of any desired size, to cover openings to vaults, areas, or in floors, so as to give abundant light, exclude water, &c., and give ample support independently of any support from the glass.

Figures 7, 8 and 9 represent a vault cover similar to that represented by figures 1, 2 and 3; but instead of laminæ of wood below for securing the glass lenses to the perforated plate above, in this modification the perforated plate G is a continuation of the vault cover.

The holes are suitable rebated from above to receive square or other formed blocks of glass, H, which are inserted with suitable cement or other

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packing, to secure water-tight joints, and then held down by cap-plates of thin metal, I, secured by screws or bolts to the plate below.

In this modification the protuberances, J, on the upper surface, for the protection of the glass, are parallel ribs which, whilst they form supports for persons or bodies passing over, admit of washing or brushing off dirt, &c.

In this way, it will be readily seen that covers for vaults, areas, cellars, and other such like places, can be made of any desirable size, with any extent of illuminating surface of thin glass, which will be perfectly safe to pass over, notwithstanding all the glass may be broken out; whilst, at the same time, the joints will not be disturbed by the expansion of the metal by reason of the small size of the metal surrounding each glass.

I have herein specified three modes in which the principle or character of my invention may be applied, but it will be obvious that other modifications may be made coming within the range or scope of the said principle.

What I claim as my invention, and desire to secure by Letters Patent, in covers for openings to vaults, in floors, decks, &c., is making them of a metallic grating or perforated metallic plate, with the apertures so small that persons or bodies passing over or falling on them may be entirely sustained by the metal, substantially as described, but this I only claim when the apertures are protected by glass substantially as and for the purposes specified.

And I also claim, in combination with the grating or perforated cover and glass fitted thereto, the knobs or protuberances on the upper surface of the grating or perforated plate, for preventing the abrasion or scratching of the glass, substantially as specified.

THADDEUS HYATT.

Witnesses:

WM H. BISHOP,

ANDREW DE LACY.

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DEPARTMENT OF THE INTERIOR

UNITED STATES PATENT OFFICE.

To all persons to who these presents shall come, GREETING:

This is to certify that the annexed is a true copy from the files of this office of the File Wrapper, Contents and Drawings, as originally filed in the matter of the Letters Patent granted Thaddeus Hyatt, assignor to Elizabeth Adelaide Lake, August 27, 1867, No. 68,332, for Improvement in Illuminating Roof and Roof Pavements.

[SEAL.]		In testimony whereof, I have caused the seal of the Patent Office to be affixed in the year of our Lord, one thousand eight hundred and _______, and of the Independence of the United States, the one hundred and ________.
Acting Commissioner.

To the Commissioner of Patents:

The petition of Thaddeus Hyatt, of the City, County and State of New York, respectfully represents:

That your petitioner as invented certain new and useful improvements in the method of constructing and combining illuminating gratings or tiles in series to form

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ILLUMINATING ROOF PAVEMENTS,

which he verily believes has not been known or used prior to the invention thereof by your petitioner. He, therefore, prays that the Letters Patent may be granted to him therefor, vesting in him and his legal representatives the exclusive right to the same, upon the terms and conditions expressed in the act of Congress in that case made and provided; he having paid thirty dollars into the treasure and complied with the other provisions of the said act.

THADDEUS HYATT.

To all whom it may concern:

Be it known that I, Thaddeus Hyatt, of the City, County and State of New York, and a citizen of the United States, have made certain new and useful improvements in the method of constructing and combining my patent illuminating gratings or tiles in series so as to form extended surfaces suitable for roofs over subterranean apartments, and which I term Illuminating Roof Pavements.

OBJECTS.

Extending illuminating surfaces with permanent water-tight joints. Maximum translucency with maximum strength. Convenience and economy of construction.

OBSTACLES.

Vibration resulting from moving bodies, and concussion resulting from impact. Contraction and expansion resulting from atmospheric changes.

REMEDIES.

Incorporating a series of illuminating tiles into the permanent structure of the roof or pavement of

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which they form a part of by means of bolting or equivalent pressure in combination with water proof bedding and packing.

FACTS.

The improvements herein set forth have reference to the ordinary sidewalks of cities, which I have made illuminating roofs in order to render available the underlying space and to change their character from coal and rubbish holes into splendid apartments, exceeding in value and giving value to the normal basement of the building, by becoming an integral portion of the same.

My invention, in short, is an illuminated pavement possessing the function of an illuminating roof. It is, therefore, an illuminating roof pavement. My original invention, for which a patent was granted on the 12th of November, 1845, was a simple illuminating grating. The present invention is an expansion of the original idea in the application of the illuminating gratings to the formation of roof pavements.

It is necessary that this fact should be grasped by any one interested in passing on the validity and extent and value of the improvements herein set forth. It is important that the difficulties of such an undertaking should be realized. It should be known that the results here set forth, however simple in themselves, were only reached after years of practical experiment. That costly structures of great magnitude were necessary, and necessarily subjected through a length of time to all the disturbing and destroying agencies that could affect them; in this way only could defects of construction be developed and cured. Over four years of practical experiment of this nature were consumed in reaching the results here recorded.

It has hitherto been found no easy matter to render an ordinary metal roof water proof, even with all the advantages of a liberal descent, as well as