Tynan v. R. K. O. Radio Pictures, Inc.

KNOX, District Judge.

Upon the assumption that this action, by virtue of the decision of the Appellate Court for this Circuit, in Arnstein v. Porter, 2 Cir., 154 F.2d 464, may properly be tried before a jury, I am of the belief that, under the circumstances here existing, I should not exercise such discretion as is given me under Rule 39(b), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in order to bring this about.

In making the instant motion, plaintiff makes no offer to waive or qualify his demand that defendant account for all gains, profits and advantages derived by…