
    Frederick Kaffeman, Respondent, v. Leopold Stern et al., Appellants.
    (City Court of New York, General Term,
    May, 1898.)
    1. Parties — Defects appearing on the face of the complaint — Demurrer.
    Where a defect of necessary parties appears upon the face of the complaint in an action, the defect is waived unless the objection is taken by demurrer. ■
    
      3. Patents — License fees must be paid by licensors who use a patent.
    Licensors cannot use a patent and refuse to pay the license fees provided for by the contract of license.
    Appeal from a judgment in favor of plaintiff.
    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 denrurrer. Hot having been so taken it was -waived. Code Civ. Pro., § 488, subd. 5, and.§ 499; Fourth Nat. Bank v. Scott, 31 Hun, 301.

If -it had been intended to restrict "the licensors 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. Repr. 556.

The judgment appealed from should be affirmed, with costs.

McCabthy, J., concurs.

Judgment affirmed, with costs.  