
    George Maitland et al., Respondents, v. The Central Gas & Electric Fixture Co., Appellant.
    (City Court of New York—General Term,
    February, 1894.)
    The defendant in an action in the City Court of New York cannot question the legality of a patent under which the plaintiff claims. That court cannot determine the validity or invalidity of a patent, but that question must be determined by the federal court.
    Appeal from judgment entered on a decision at Special Term, sustaining the demurrer of plaintiffs to fhe fifth paragraph of defendant’s amended answer.
    Birdseye, Gloyd i& Bayliss, for appellant,
    
      A. Walker Otis, for respondents.
   Ehrlich, Ch. J.

The appeal seems to present the single question whether the defendant can question in this court the legality of the patent under which the plaintiffs claim.

The court below properly held that this court could not determine the validity or invalidity of the patent, as that question must be determined in the federal court.

The demurrer as to this point was, therefore, properly sustained.

As to the counterclaim, the court overruled the demurrer because the defendant had set up in its answer a counterclaim for moneys paid by mistake and without any consideration, and which were, in the nature of things, recoverable back.

As the plaintiff does not appeal, this part of the judgment need not be considered.

The defendant appeals from that portion of the order which sustained the demurrer to the fifth paragraph of the amended answer, and as the order in respect thereto was properly made, it must be affirmed, with costs.

"Van Wyck and Fitzsimons, JJ., concur.

Order affirmed, with costs.  