
    CHEATHAM ELECTRIC SWITCHING DEVICE v. AMERICAN AUTOMATIC SWITCH CO.
    (District Court, S. D. New York.
    May 13, 1912.)
    Courts i¡§ 351) — Discovery (§ 80*) — Production of Documents Before Trial — Federal Courts.
    A federal court cannot compel a party in an action at law to produce booss or papers before tbe trial, either under Rev. St. § 724 (U. S. Comp, í r,. 1901, p. 583), or under a state practice; tbe only remedy of tbe party desiring sucb production being by a bill of discovery in equity.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. § 924; Dec. Dig. § 351 ; Discovery, Cent. Dig. §§ 103, 105; Dee. Dig. § 80.]
    At Taw. Action by the Cheatham Electric Switching Device against the American Automatic Switch Company. On motion by plaintiff for an order requiring defendant to produce its books before trial.
    Motion denied.
    Ellery Edwards, Jr., of New York City, for complainant.
    Kiddle & Wendell, of New York City, for defendant.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   WARD, Circuit Judge.

This is a petition in an action at law upon letters patent of the United States, asking the court to require the defendant to permit the plaintiff to examine its books before trial, under section 724, Q. S. Rev. Stat. (U. S. Comp, St. 1901, p. 583). The Supreme Court has in the case of Carpenter v. Winn, 221 U. S. 533, 31 Sup. Ct. 683, 55 L. Ed. 842, finally determined that the courts can only compel the production of books and papers under section 724 in an action at law at the trial and not before. This leaves the plaintiff a bill of discovery as his only remedy. The more liberal state legislation and practice cannot be followed under sections 721 and 914, Rev. Stat. U. S. (U. S. Comp. St. 1901, pp. 581, 684), because they are inconsistent with section 724 as construed by the Supreme Court. Ex parte Fiske, 113 U. S. 713, 5 Sup. Ct. 724, 28 F. Ed. 1117.

The prayer of the petition is denied.  