to deny this part of the motion without prejudice, so that it may be renewed on a proper showing at the same time that the motion is renewed to dismiss the complaint for failure to state a claim.

The motion to strike out immaterial matter is addressed to a number of the paragraphs in the complaint. Granting the motion would strike out all allegations relating to the contracts allegedly made between Mason and Wolf and the defendant, for the benefit of the bankrupt, with the result that the complaint would be rendered meaningless. It would, in effect, amount to a dismissal of the complaint. This result evidences the materiality of the allegations in the complaint to which objection is made. Accordingly, that part of the motion is denied.

Defendant moves for a bill of particulars and sets forth the items on which the particulars are sought. On the argument of this motion plaintiff made no objection to granting the particulars, but in view of the fact that this action is brought by plaintiff as a trustee in bankruptcy, plaintiff requested thirty days in which to serve the bill and asked permission to state lack of knowledge, under oath, in lieu of furnishing some of the particulars. Under the circumstances I am of the opinion that these requests are reasonable, and that this part of the motion should be granted, subject to these conditions.

notice.

Submit order in accordance with this opinion, on two days'

RULE 33 Interrogatories to Parties

Circuit Court of Appeals for the Third Circuit

April 24, 1939

Martin Sierocinski v. E. I. DuPont De Nemours & Co.

In action against the manufacturer of dynamite caps to recover for personal injuries resulting from the explosion of one of the caps during the process of crimping it, plaintiff alleged the negligent manufacture and distribution of the cap in such fashion as to make it explode when crimped. The Circuit Court of Appeals in reversing order dismissing complaint for failure to set forth any specific act of negligence, held that plaintiff need not plead evidence, that "a short and plain statement of the claim showing that the pleader is entitled to relief" is sufficient as a pleading and that further information if needed to prepare a defense, can be obtained by interrogatories.

(See opinion in this case under Rule 8 (a).)

A party should not be required to admit or deny facts which are not within his knowledge but which are provable by testimony of third parties.

NIELDS, D. J.

Hearing on *** defendants' requests under rule 36 for admission of certain facts and genuineness of certain documents; ***

The bill of complaint charges defendants with patent infringement and seeks a declaratory judgment.

The bill charges infringement by defendants of U. S. Patent No. 1,614,455 issued January 18, 1927 to A. H. Cooke, assignor to Atlantic Coast Fisheries Corporation of New York for certain new and useful improvements in refrigerating apparatus. By assignment plaintiff, Booth Fisheries Corporation, became the owner of this patent and has so continued.

The bill also seeks a declaratory judgment under section 274d of the Judicial Code arising from an actual controversy between plaintiff and defendants respecting a charge of infringement by plaintiff of defendants' U. S. Letters Patents *

Defendants have submitted to plaintiff a list of 28 facts with the request that plaintiff admit the truth thereof.