Carpenter v. Erie R. Co, 178 F.2d 921 (2d Cir. 1950)

The trial judge necessarily dismissed the complaint. The plaintiff had previously asserted his claim in an action brought in the District Court for the District of New Jersey which was decided against him by the Court of Appeals for the Third Circuit, 132 F.2d 362, certiorari denied 318 U.S. 788, 63 S. Ct. 983, 87 L. Ed. 1155. He again asserted his claim in the Southern District of New York and lost on appeal to this court in a decision reported at 2 Cir., 170 F.2d 73, certiorari denied 336 U.S. 904, 69 S. Ct. 490.

The accident for which plaintiff seeks recovery occurred on June 12, 1928. Both of the earlier actions were held barred by the statute of limitations. He is precluded from recovery in the present suit under the rule of res judicata. He makes the further argument that he is entitled to recover under Section 1125(a), Title 15 U.S.C.A., of the Trade-mark Law, but that section is applicable to no such circumstances as those alleged in support of his claims. It is entirely evident that his claims are all barred and have been decided against him at various times. His continued reassertion of them can never justify a recovery.

Judgment affirmed.