
    JOHNSON METAL PRODUCTS CO. et al. v. LUNDELL-ECKBERG MFG. CO., Inc.
    No. 1747.
    District Court, W. D. New York.
    Nov. 30, 1938.
    Hugh C. Lord, of Erie, Pa., for plaintiffs.
    J. William Ellis, of Buffalo, N. Y., for defendant.
   KNIGHT, District Judge.

This suit was tried and the mandate on appeal filed prior to the effective date of the present Rules of Civil Procedure. It seems that under new Rule 54(d), 28 U.S.C.A. following section 723c, the court can exercise its discretion in the matter of costs, but if not, the old Rules should be followed. The application of the new Rules would work an injustice in this suit. Under the old Rules costs were clearly discretionary in the patent suit. The court heretofore allowed the defendant $125 costs. Allowance of $350 in addition thereto is ample and fair under all the circumstances of the case.  