
    ECAUBERT v. APPLETON et al.
    (Circuit Court, S. D. New York.
    April 19, 1894.)
    This was a suit by Frederic Ecaubert against Daniel»Fuller Appleton and others for infringement of the patent to complainant, No. 434,539, brought after the commencement of a suit against him by defendants herein to cancel said patent (62 Fed. 742). The two causes were heard together. Complainant moved to strike out certain testimony taken by defendants.
   COXE, District Judge.

The foregoing considerations dispose of this cause also, which is an ordinary action of infringement. The bill is dismissed.

Note: As these causes have been decided upon the broad ground that <r Ecaubert conceived of the invention before December, 1887, he had not succeeded in reducing it to practice until after Hofmann had made an operative machine, it seems unnecessary to pass, seriatim, upon the questions raised by the motions to strike out. In view of the fact that the actions were. x>rae-tically, tried together, .all the testimony complained of seems to have a bearing upon some of the issues presented. I am of the opinion that the testimony should not be stricken out, and this ruling may be put in any form which counsel for Ecaubert may suggest to enable him to present the questions on appeal.  