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JOHNSTON v. KLOPSCH.

(Circuit Court, S. D. New York.

July 7, 1898.)

No. 3,806.

1. Construction of Statutes — Pleading—Copyright Suits.

Xtev. St. § 914, conforming pleadings in an action at law in a federal court to those in the state court, and section 4969, providing that in all actions arising under the laws respecting copyrights the defendant may plead the general issue and give special matter in evidence, are to he construed together, and full effect given to both.

2. Pleading in Copyright Suits.

In an action to recover penalties for infringement of a copyright, under Rev. St. § 4965, brought in a federal court in a state which has adopted the code system of pleading, an answer containing a general denial, taken in connection with the provisions of section 4969, secures all rights reserved to the defendant under the federal statutes, and accordingly a common-law plea is inappropriate.

Motion to strike out plea. The action was brought under Rev. St. § 4905, as amended, to recover §20,000 as penalties for infringement of copyright. The defendant interposed a plea that he “comes and defends the wrong and injury when,” etc., and says “that he is not guilty of the supposed grievances above laid to his charge in manner and form as the said plaintiff hath above thereof complained against him,” etc., “and of this he, the said defendant, puts himself upon the country,” etc., “and the said plaintiff doth the like,” etc.

Max J. Kohler, for the motion.

G-. H. Crawford, opposed.

LACOMBE, Circuit Judge.

The motion is granted. Celluloid Mfg. Co. v. American Zylonite Co., 34 Fed. 744. The system of code pleading provides a method for “pleading the general .issue” which harmonizes with the other pleadings therein provided for, and which should be followed, since sections 4969 and 914, Rev. St., are to be construed together, and full effect given to both. An answer which contains a general denial of all the averments of the complaint, taken in connection with the provisions of section 4969, to the effect that defendant may, upon the trial, “give special matter in evidence,” secures all rights reserved to defendant under the federal statutes, without the incongruity of combining a code complaint with a common-law plea. Ten days from date of entry of order is given defendant to answer.

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