The main facts in this case will be found in the opinion of this court ón a former appeal (26 App. Div. 381), and it is not necessary to repeat them here. It will be observed that it was stated -in the opinion of the presiding justice on that.appeal, that the action was not brought to recover the value of certain articles which were component parts of the Belgian lamp, but, to recover “damages resulting to the plaintiff. from his inability to'use the articles in the' manufacture of lamps, it being claimed that, by the omission of the defendant to return the articles, the plaintiff was prevented from manufacturing, and thereby lost profits which he might have received on the sale of the completed lamps.”
The former judgment for the plaiptiff was reversed because we held that there was no evidence sufficient to.show that any damage had' resulted to the plaintiff from the failure of the defendant to return the articles in question. This was emphasized in the opinion of Mr. Justice Hatch, where he said that there was affirmative proof that the plaintiff had suffered no loss, as he had a large number of lamps on hand which he did ¡not sell, and if he did not and - could hot sell them,- he could not lose- profits upon ¡an addition tó the stock in hand.
At the last trial the plaintiff supplied this defect by the evidénce- . of two witnesses that in J ulv, 1895, they had applied to the plaintiff to purchase 2,000 lamps, stating the price they were willing to pay. therefor. There was. no testimony of other witnesses to con- ■ tradict this -fact, and, while there was some evidence tending to impeach these witnesses, the question' of fact testified to by them ■ was fairly submitted to the jury, and their verdict must stand unless certain exceptions to the exclusion of evidence and to portions of the charge are tenable.
The complaint alleges that the “lamp burners were patented" - articles,” and that the defendant was “ patentee of said "burner or agent of the patentee.” The answer admits that the defendant “imported the lamp burners mentioned -and that the same were *435patented articles.” The court also spoke of. the “ patented lamp burner ” and “ patented burner,” and referred to the article as
component parts of the patented burner,” so that it seems to have been the theory of both parties and of the court that there was no question at the trial that the patent covered.the completed burner and did not relate to the parts unassembled.
Upon the cross-examination, the plaintiff said that when he bought the articles at the auction sale of the underwriters he knew that some parts of the burner, not the lamp itself, were patented. He was then asked : “ Q. I show you a paper and- ask you whether or not that does not represent the patent of the parts of this lamp which are patented ? A. I can only tell by • reading it in detail. Of course I never have seen it. Q. Read it in detail. [Objected to as immaterial and incompetent.] The Court: I will permit you to show that any of the component parts going to make the complete entire *was governed by the patent held by some one else than the Belgian Lamp Company. Mr. Ross. That is not what I claim. The Court: Then I will sustain the objection. [Exception..] ”
- ■ Dawans, one of the defendant’s witnesses;- on. direct examination, was testifying as to the burner and its several parts and construction when the following examination took place: “ By Mr. Ross: Q. Any part of that patented? [Objected to as immaterial and incompetent. Objection sustained. Exception.] Q. Are all of the parts you have just mentioned patented or are only some of them patented ? [Objected to as immaterial and incompetent. Objection sustained. Exception.]”
The counsel for the appellant contends that these rulings constitute error, as “ the defendant had a clear right to show precisely what parts of the lamp were-patented and that the Belgian Lamp Company was the patentee. The plaintiff' had alleged that the parts were imported from Belgium and were patented, and that the defendant was the patentee or agent of the patentee. The defendant should have been allowed to supplement this proof by showing exactly what the patent covered.”
The difficulty with this contention is that the pleadings contained allegation and admission that the “ lamp burners were patented articles.” Upon this question there was no issue before the jury. *436There was no allegation in the pleadings that any of the parts were patented. So that any evidence on that subject was properly excluded.
In addition to this, we ■ are not advised by the record what was the character of the evidence offered to prove the existence of any patent. There was a paper presented to the plaintiff, and he was asked if it did not represent the patent of the parts of the lamp which were patented, but what that paper was does not appear. Even if it would have been competent for the defendant to. prove, the existence of any patent, that should have been proved by the production of the letters patent, and it is enough to say that we cannot assume, what the record- does not show, that the paper referred ■to was the letters patent. Indeed, I think we may assume the contrary from the remarks of the learned judge and the counsel.
■ In the second quotation' the defendant seems to have been endeavoring to prove by parol evidence that some or all of the parts-•of the burner were patented. As we have before said, the existence of a patent is to be proved by production of the letters patent, or by a certified copy. (2 Greenl. Ev. I15th ed.l 8 488: Code Civ. Proc. §§ 952, 953.) ' - .
It is very difficult to ascertain from the record whether the ■defendant claimed that the patent covered the different parts of the burner, or the assembling of the component parts, but in either case, it has failed to offer competent proof of the existence of any letters, ■patent to vary the allegation and admission of the pleadings.
I have carefully examined the other exceptions and find no error "in any of the rulings thereon, and I think the judgment and order-appealed from should be affirmed.
Judgment and order reversed and new trial granted, costs to abide the event,
Sic.