
    LEHRMAN v. BABOR et al.
    United States District Court S. D. New York.
    March 4, 1949.
    Olesker & Silvan, New York City, Louis Zingesser, Mamaroneck, N. Y., and Abel M. Silvan, New York City, of counsel, for plaintiff.
    Hays, St. John, Abramson & Schulman, New York City, John Schulman and William Klein, II, New York City, of counsel, for defendant Babor.
   CONGER, District Judge.

Motion to dismiss pursuant to Rule 12 (b)(1), Federal Rides of Civil Procedure, 28 U.S.C.A.

Although there are no allegations in the complaint that plaintiff is the owner of a copyright or has equitable title to one, the allegations suggest that he may have a basis for an equitable title. If he has such a title that, of course, would give this Court jurisdiction.

I have read the complaint herein with a great deal of care. I am not too sure that plaintiff has, on the pleaded facts, a claim which he can establish under the Copyright Act, 17 U.S.C.A. § 1 et seq. There can be no question from reading the prayer for relief that he bases his claim upon a Federal question arising under the Copyright Act. Plaintiff will have to stand or fall upon this claim.

This motion may be made at any time, or may be discovered by the Court, and I, therefore, feel that the trial judge will be in a better position to decide it after he has heard some of the evidence to be presented.

Motion denied.

Settle order.  