AMERICAN STEEL & WIRE CO. v. MAYER & ENGLUND CO.

AMERICAN STEEL & WIRE CO. v. MAYER & ENGLUND CO. (Circuit Court, S. D. New York. December 29, 1902.) 1. Patents — Suit fob Infbinqembnt — Right to Discontinue. A complainant in a suit for infringement will not be granted leave to discontinue after tbe proofs have been taken and closed at large expense to the defendant, beyond his taxable costs and disbursements, where no other ground is shown than the desire of complainant to re-litigate the questions involved in a new suit. In Equity. Suit for infringement of patent. On motion for leave to discontinue. Hillary C. Messimer, for plaintiff. W. C. Strawbridge, for defendant. [MAJORITY — WHEEEER District Judge.] WHEEEER District Judge. This suit is brought for infringement of a patent. Issue was joined February 5, 1901. Proofs were closed in June, 1902, at large expense beyond taxable costs and disbursements to defendant, it was placed on the calendar for hearing at this October term, and stood over for hearing December 9th. The plaintiff’s counsel wrote December 3d to defendant’s counsel: “Dear Sir: I have yours of the 2nd. We intend discontinuing the case of American Steel & Wire Co. vs. Mayer & Englund Co., when it is reached for argument on the call of the present calendar, and immediately thereafter we shall bring a new suit, as it is our intention to relitigate this question, in view of what has developed subsequent to the closing of the proofs in this case. We do not think the purpose we have in view could be accomplished by the opening up of the present case; therefore, we prefer discontinuing and starting de novo, and that we shall do.” On the call of the day calendar December 9th, the plaintiff asked leave to discontinue; showing no cause beyond the desire expressed in the letter. Under these circumstances, the defendant appears to have a substantial right to the benefit of its testimony upon the issue joined. A condition saving the right to the testimony as if perpetuated is suggested, but that would be uncertain and of doubtful advantage, and not an adequate substitute for its use now. Leave denied.