Opinion
Action by Philip W. Bander against Milton K. Breslauer and another, copartners, doing business under the firm name and style of A. Breslauer & Co. On motion to vacate plaintiff's default in serving and filing his demand for a jury trial. A second motion was for an order directing defendants to appear and submit to examination before trial as adverse parties and for discovery and inspection in connection therewith.
Second motion settled. First motion denied.
Bogart & Lonergan, of New York City, for plaintiff.
Levien, Singer & Neuberger, of New York City, for defendant.
KNOX, District Judge.
The within motion is denied, and for two reasons: (1) The Civil Rules of Procedure, 28 U.S.C.A. following section 723c, have been in effect for almost nine years, and by this time, compliance therewith, particularly upon the part of a plaintiff, should almost be automatic, (2) the matter as to whether plaintiff is within the coverage of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., can be more accurately determined by a judge than by a jury.