EDISON PHONOGRAPH CO. v. SWITKY

EDISON PHONOGRAPH CO. v. SWITKY. (Circuit Court, S. D. New York. February 18, 1904.) Frank E. Bradley, for the motion. Waldo G. Morse, opposed. [MAJORITY — LACOMBE, Circuit Judge.] LACOMBE, Circuit Judge. Complainant may take injunction as to machines. As to the records, defendant asserts under oath that all that he has offered for sale were bought secondhand from persons who had paid the full re;ail price for them. If this be so, the questions raised should be left for final hearing. But, in view of the fact that defendant advertises new records for sale, his affidavit cannot be taken as conclusive, without giving his adversary opportunity of cross-examination. If complainant wishes to cross-examine on the averments of the affidavit, he may take an order, sending it to Robert 0. Beatty, Esq., as special master to conduct such examination and report his conclusions with the testimony, and upon the coming in of his report this motion may be renewed. If complainant prefer not to cross-examine, tlie motion as to the records will be denied. If defendant fail, after being duly notified, to appear for cross-examination, the motion for preliminary injunction will be granted.