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. 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.
McCARTHY, J., concurs.
Judgment affirmed, with costs.