The opinion
On Rehearing.
The effect of the opinion heretofore filed herein was to dismiss the cross-bill filed by Keithley; his allegation of infringement by the construction of the 2,500 Santa Fé cars being considered as merely incidental to the gravamen of the cross-bill, which was a request for the rescission of the assignment of his patents to the American Car & Foundry Company on the ground of fraud or deceit in their procurement. Whether such cars were actually infringements of the patent was not decided, and upon that question the car company has not had its day in court, although it was perhaps not seriously disputed that the said ears were of the same type of construction as Keithley’s. Accordingly the issue which is now put forward would seem to be col *911 lateral to the object of the cross-bill, to which a cross-answer was filed by the American Car & Foundry Company. Modifying the decision as requested would bring into the case new issues, which would entitle Keithley, if his allegations of infringement are proven, to a totally different relief from that demanded by the cross-bill. Reliance is placed upon rule 23 of the new equity rules ( 198 Fed. xxiv , 115 C. C. A. xxiv ), which substantially provides that matters ordinarily determinable at law arising in equity suits shall be determined in the same suit according to the principle applicable without transferring the case to the law side of the court; but in this case the cross-complainant now desires the consideration of the court, not only on the question of infringement, but also on the question of an accounting for profits and damages which are peculiarly matters of equity jurisdiction.
[3] There is another point which, in my opinion, is inimical to cross-complainant’s contention, and that is that the American Car & Foundry Company is entitled to the interposition of an original bill charging infringement by it, and under the authorities a cross-bill cannot be made an original bill in the same cause of action, unless the subject-matter is germane to the original bill, which is not here thought to be the case.
Petition for rehearing or modification of the decision is denied.