
    (23 Misc. Rep. 599.)
    KAFFEMAN v. STERN et al.
    (City Court of New York,
    General Term.
    May 20, 1898.)
    1. Defect in Parties—Waiver.
    Where the fact that certain persons were necessary parties to the action appeared on the face of the complaint, and no objection was taken by demurrer, the defect was waived.
    2. Patents—Liabilities of Licensee.
    Where defendants acquire the right to use a patent, they cannot refuse to pay the license therefor provided by the contract, and continue to use the patent.
    Appeal from trial term.
    Action by Frederick Kaffeman against Leopold Stern and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Argued before McCARTHY and O’DWYER, JJ.
    Daniel P. Hays, for appellants.
    Joseph Kohler, for respondent.
   O’DWYER, J.

Assuming that Lissauer and Sondheim were necessary parties, that fact appeared upon the face of the complaint, and the objection should have been taken by demurrer. Not having been so taken, it was waived. Code Civ. Proc. § 488, subd. 5; Id. § 499; Bank v. Scott, 31 Hun, 301.

If it had been intended to restrict the licensor .from manufacturing under the patent, such a covenant should have been inserted in the agreement. Furthermore, the defendants cannot use the patent, and refuse to pay the license fees provided for by the contract. McKay v. Smith, 39 Fed. 556.

The judgment appealed from should be affirmed, with costs.

McCARTHY, P. j., concurs.  