
    Adee v. J. L. Mott Iron-Works.
    
      (Circuit Court, S. D. New York.
    
    April 21, 1891.)
    Equity — Practice—Evidence—Record—Appeal.
    In an equity suit testimony that is ruled out on objection will not be excluded from the record on appeal.
    In Equity.
    
      Arthur v. Briesen, for complainant.
    
      Francis Forbes, for defendant.
   ShipMAN, J.

The motion to exclude the testimony of Mr. Briesen from the printed record, the object of the motion being to exclude the testimony from the record upon appeal in case an appeal is taken, is denied. Testimony in an equity suit, which has been objected to and ruled out, should properly be sent with the record to the supreme court. Blease v. Garlington, 92 U. S. 1. The motion to rule out the testimony of John Uprichard, which was given in Adee v. Peck, 42 Fed. Rep. 497, is granted, except as to question 4 and the answer thereto. This portion of the record of testimony in the Connecticut case was not offered by the plaintiff to contradict Uprichard, but simply to show that he also fully testified to the same exhibits in the Peck suit, and that the effect of the evidence of those exhibits upon the validity of the Foley patent must have been considered by Judge Wallace. The motion to strike from the record cross-question 20 in the testimony of John Uprichard in this case, and the statements which follow down to cross-question 21, and to, strike out from the same testimony all that intervenes between cross-question 47 and the entry, “New York, December 3,1890,” and all that intervenes between cross-question 61 and cross-question 64, and all in the record of the same testimony after the words, “cross-examination closed,” and before the signature of the witness, is denied. The motion to strike from the record of Mr. Serrell’s testimony, under date of March 23,1891, all after the words, “Present, Francis Forbes,” etc., down to the tenth question, is granted. This colloquy between counsel became entirely immaterial in view of the stipulation made by counsel for complainant at the close of the discussion.  