Opinion
Louis Lazarus, of New York City, for plaintiffs.
Niden & Gerardi, of New York City (Louis Niden, of New York City, of counsel), for defendants.
HULBERT, District Judge.
This is an action brought under the Federal Copyright Law (section 25, Title 17 U.S.C.A.) alleging infringement of a copyright issued to the plaintiffs, in the publication of graphs, outlines, charts and tables reproduced and published by the defendants in a magazine called 'Domestic Engineering.' Issue was joined May 12, 1939.
Rule 1 of the Copyright Rules promulgated by the Supreme Court, 17 U.S.C.A.following section 25 (214 U.S. Appendix) made the Equity Rules applicable to actions brought under Section 25.
It is true that Rule 1 of the Copyright Rules was amended June 5, 1939, to apply the Rules of Civil Procedure, insofar as they are not inconsistent with the Copyright Rules, effective Sept. 1, 1939, 17 U.S.C.A.following section 25.
On July 17, 1939, the defendant Foster served an order made by a judge of this court dated July 15, 1939, requiring the plaintiff to answer pursuant to Equity Rule 58, 28 U.S.C.A.following section 723, the following interrogatories:
'1. Have the plaintiffs sold any shoots of drawings entitled 'Tables for Pipe Sizing-Fixture Units, Minimum Sizes of Individual Soil, Waste and Vent Branches'? ' If the answer to Interrogatory '1' is in the affirmative, please state how many were sold during the month of January, 1938, and the total number sold during each and every month thereafter up to the present time; state the price received for each sheet of drawing. '2. Have the plaintiffs distributed any of these sheets of drawing entitled 'Tables for Pipe Sizing-Fixture Units, Minimum Sizes of Individual Soil, Waste and Vent Branches' free of any charge or price? If the answer to Interrogatory '2' is in the affirmative, state the total number so distributed.'
Plaintiffs now move to vacate said order asserting that it was not made within 21 days after the joinder of issue.
Equity Rule 58 provides: '* * * the defendant at any time after filing his answer and not later than twenty-one days after the joinder of issue, and either party at any time thereafter by leave of the court or judge, may file interrogatories in writing for the discovery by the opposite party or parties of facts and documents material to the support or defense of the cause * * *.'
Equity Rule 58 further provides: 'Interrogatories shall be answered, and the answers filed in the clerk's office, within fifteen days after they have been served, unless the time be enlarged by the court or judge.'
There does not appear to have been any enlargement of the time.
Said Rule 58 further provides: 'Within ten days after the service of interrogatories, objections to them, or any of them, may be presented to the court or judge, with proof of notice of the purpose so to do, and answers shall be deferred until the objections are determined, which shall be at as early a time as is practicable. In so far as the objections are sustained, answers shall not be required.'
This procedure does not appear to have been followed. Motion denied. Settle order.