U.S. Court of Appeals for the Second Circuit, 1947

Dixon v. American Telephone & Telegraph Co.

U.S. Court of Appeals for the Second Circuit · Decided February 3, 1947 · Swan, Chase, Frank

159 F.2d 863; 72 U.S.P.Q. (BNA) 253; 1947 U.S. App. LEXIS 3803 (Federal Reporter, Second Series)

Counsel

Thomas Bullitt Dixon, pro se., James J. Kennedy of New York City, for Philipp, Sawyer, Rice & Kennedy and James J. Kennedy, Jr., Cravath, Swaine & Moore, of New York City (Bruce Bromley and Benjamin R. Shute, both of New York City, of counsel), for Fish, Richardson & Neave and Henry R. Ashton., Homer H. Breland, of New York City, for American Telephone and Telegraph Company, Western Electric Company and John McGlone.

Cases that cite this one

19 later published cases cite this decision.

Campbell v. American Fabrics Co. (2d Cir. 1948)
Coleman v. Corning Glass Works (District Court, W.D. New York 1985)
Whitehall Corp. v. Western Geophysical Co. of America (District Court, S.D. Texas 1986)
Meyer v. Benelli (Kan. 1966)
Clontz v. Fortner (Idaho 1965)
Clark v. Taylor (2d Cir. 1947)
Brantley v. Pisaro (Cal. Ct. App. 1996)
H & R INDUSTRIES, INC. v. Kirshner (District Court, E.D. New York 1995)
GAF CORPORATION v. Amchem Products, Inc. (District Court, E.D. Pennsylvania 1975)
Preston v. United States Trust Company of New York (2d Cir. 1968)
Troutman v. Southern Railway Co. (United States District Court for the Northern District of Georgia 1968)
Preston v. United States Trust Co. of New York (2d Cir. 1968)
Davis v. Tennessee Valley Authority (United States District Court for the Northern District of Alabama 1962)
Subin v. Goldsmith (2d Cir. 1955)
Subin v. Goldsmith (2d Cir. 1955)
Colby v. Klune (2d Cir. 1949)
Boro Hall Corp. v. General Motors Corp. (2d Cir. 1947)
Doyle v. Milton (District Court, S.D. New York 1947)
Peckham v. Ronrico Corp. (District Court, D. Puerto Rico 1947)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

FRANK, Circuit Judge.

We think plaintiff failed to show adequate ground for delay in bringing his suit. His affidavits show that in 1937 he knew all the facts which he knew when he instituted his suit in 1943. The only excuse he gives is that in August 1940 he suffered a serious accident. We assume (although, in his affidavits, he does not so state) that the result of this accident wholly incapacitated him from August 1940 to the date when he brought this suit. But he states no sufficient reason for the delay from 1937 to 1940. Since 1937, three of the lawyers connected with the patent action, who might well have been important witnesses for the defendants, have died.

The facts bearing on the issue of laches are wholly within plaintiff’s knowledge; nothing that could be learned at a trial could add to the data bearing on that issue; with respect thereto, he is in nowise dependent “on what he can draw out of” the defendants. 1 Had there been a trial, none of the defendants, by their testimony, would have contributed anything concerning the reasons for the delay; if, at a trial, his testimony had been in accord with his affidavits and had been believed, nevertheless dismissal for laches would have been necessary. As a trial would have involved no question of credibility, our precedents are not in point. 2 Since, as to laches, there was no issue of fact but only one of “law,” the vice of “trial by affidavits” 3 is here absent, and the summary judgment must be affirmed.

Affirmed.

Bozant v. Bank of New York, 2 Cir., 156 F.2d 787, 790.

Arnstein v. Porter, 2 Cir., 154 F.2d 464, 473, 474; Bozant v. Bank of New York, supra; Doehler Metal Furniture Co. v. United States, 2 Cir., 149 F.2d 130, 135; Bushwick-Decatur Motors v. Ford Motor Co., 2 Cir., 116 F.2d 675, see also Avrick v. Rockmont Envelope Co., 10 Cir., 155 F.2d 568, 571, 573; Krug v. Santa Fe Pac. R. Co., App.D.C., 158 F.2d 317, 320.

See Arnstein v. Porter, supra, at 471.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.