CINCINNATI CAR CO. v. NEW YORK RAPID TRANSIT CORPORATION

CINCINNATI CAR CO. v. NEW YORK RAPID TRANSIT CORPORATION. Circuit Court of Appeals, Second Circuit. January 10, 1930. For former opinion, see 35 F.(2d) 679. Harry E. Knight, of New York City, for the motion. H. A. Toúlmin, of Dayton, Ohio, opposed. Before MANTON, L. HAND, and SWAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. This is a motion to recall and amend the mandate of this court granting leave to the appellee to apply to the District Court for a suspension or modification 'of the injunction for a limited period of time so that the appellee, a pub lie service corporation, may install noninfringing devices in place of the devices which we have held infringed the patent in suit, as stated in the opinion of this court. The District Court has the power to grant such a suspension, and we think should under the circumstances. Campbell Printing-Press & Mfg. Co. v. Manhattan Ry. Co. (C. C.) 49 F. 935; Thomson-Houston Electric Co. v. Union Ry. Co. (C. C.) 78 F. 365. The cars upon which the infringing devices are used are in daily service, and a change must he made with due regard for the traveling public and the franchise requirements of the appellee. The length of time and the conditions to be imposed for sueh suspension we leave to the District Court for its determination. The financial statement of the appellee, which has been submitted to us, should, we think, be sufficient without the requirement of a bond as a condition of such suspension. To the extent indicated, the motion is granted.