The complainant, the Sprague Electric Eailway & Motor Company, moves for a preliminary injunction against the Steel Motor Company to enjoin infringement of claims 2 and 6 of letters patent No. 32,4,892, issued August 25, 1885, to Frank J. Sprague for an electric railway motor. These claims were adjudged valid by the circuit court of the Second circuit, and its decree affirmed on appeal. The validity of the patent having been sustained, an injunction must issue, as the respondent company concedes that Exhibits Nos. 1, 2, 3, 5, 6, and 7 infringe the second claim. As to the sixth daim, respondent alleges that the present proofs fail to show in said exhibits the use of all the elements of said daim. We will not pass on that question, as the complainant asks leave to withdraw so much of its motion as seeks for an injunction based on infringement of said claim. Such leave will be given, without prejudice to complainant’s right to aver and maintain such charge of infringement hereafter.
The foregoing enjoined types are what are known as "nose-suspended motors.” The respondent manufactures motors with sidebar suspensions, and has produced plans and models of two such, known as Nos. 4 and 8, respectively, has submitted them to the inspection of the court and parties, and has urged the court on this present motion to pass on the question whether they infringe. Counsel for respondent allege that complainant’s moving papers charge that respondent infringes in the manufacture and sale of said side-suspended *960¡motors. A careful consideration’ of the record satisfies-ús that -shell charge has not been made oñ thé-motion before,us by Complainant, and that the respondent, not the complainant, has' sought to raise • that issue. Against action thereon by the court the complainant pro- - tests, alleging that, while it régards said types as infringing the patent in suit, it is not willing to have that question passed on in tlie ■ p'resent motion or presentation by the respondent, and on its models and drawings. We must therefore regard the question as before ms wholly and solely at the respondent’s instance. Such being the casé, we must decline to pass upon it. The practice to the contrary is settled in this circuit. Edison Electric Light Co. v. Westinghouse Electric & Mfg. Co. (C. C.) 54 Fed. 504. Let ah injunction as'indicated above be drawn and, submitted.