
    DIPSON THEATRES, Inc. v. BUFFALO THEATRES, Inc., et al.
    Civ. No. 3058.
    United States District Court W. D. New York.
    Nov. 1, 1948.
    See also D.C., 8 F.R.D. 313.
    Borins & Hoffman, of Buffalo, N. Y. (Louis Borins and Dwight Campbell, Jr., both of Buffalo, N. Y., of counsel), for plaintiff.
    O’Brien, Driscoll, Raftery & Lawler, of New York City, and Edward C. Raftery and George A. Raftery, both of New York City, for Universal, United Artists and Warner Bros. Picture Distributing Corp., Inc. (Formerly Vitagraph, Inc.)
    Raichle, Tucker & Moore, of Buffalo, N. Y., and Frank G. Raichle and James O. Moore, both of Buffalo, N. Y., for Buffalo Theatres, Inc., and others.
    Brown, Kelly, Turner & Symons, of Buffalo, N. Y., and J. Edmund Kelly and John E. Leach, both of Buffalo, N.Y., for Vincent R. McFaul.
    Sidney B. Pfeifer, of Buffalo, N. Y., and Harry M. Pimstein, of New York City, for RKO Radio Pictures, Inc.
    Schwartz & Frohlich, of New York City, and Louis D. Frohlich, Everett A. Froh-lich and Max Rose, all of New York City, for Columbia Pictures Corporation.
   KNIGHT, Chief Judge.

At the close of plaintiff’s case, each defendant moved, under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A., for a dismissal of the complaint and for judgment.

The foregoing rule contemplates adjudication on the merits and here this necessitates a decision on numerous controverted issues of fact. A dismissal under this rule is to be granted only with caution, specially where there is such a mass of testimony as here.

The Third Cause of Action is dismissed. Findings may be submitted, and thereafter judgment entered.

Each cause of action is dismissed as to the defendant Columbia Pictures Corporation. Findings may be submitted, and judgment thereafter entered.

All other motions are denied.  