of the necessary information and has not complied with the orders of the Court by failing to furnish the same to the defendant, he will bo precluded from giving any evidence thereof upon the trial.

In November 1937 defendant made an application to this Court for the appointment of an auditor. This motion was denied by Judge Galston in the following language:

"The motion of the defendant to appoint an auditor must be denied, since in an action at law there is no

statutory provision or other practice which sanctions it."

Rules 16 (5) and 53 (b) of the Rules of Civil Procedure for the District Courts of the United States expressly provide for the appointment of a Special Master under certain circumstances.

The defendant has requested the appointment of an auditor to make a preliminary examination and to report to the Court the amount of the commissions earned by the plaintiff and not paid to him.

Rule 53 (a) provides that the word "master" includes a referee, an auditor, and an examiner.

It is quite likely that if the plaintiff waits until the trial to examine the defendant's records, the trial will take three weeks as it will undoubtedly be necessary for the plaintiff and his witnesses to make long and tedious examinations of the books. This is necessarily so be cause there are many thousands of transactions involved covering a period of six years, some of the items being for less than One Dollar. A consideration of all the se items will involve a Herculean task for the jurors to perform. The Court's time and that of the litigants and their attorneys can best be served by the appointment of an auditor. This preliminary reference to an auditor will narrow the issues and thus save the time of the Court, jury, and counsel. Under these new Rules the trial of a law suit will no longer be a game of chanco, but a just determination of the real issuos existing between the parties. These new Rules will really promote the proper administration of justice and were ideally drawn to cover the situation in this case.

The defendant's office and factory, books and records, as well as its officers are located in St. Louis, Missouri. It merely maintains a salesroom and selling office in New York. To bring all the officers and books and records to New York would involve a great deal of expense and would seriously interfere with the dofendant's business.

The auditor will be appointed at St. Louis, Missouri. If the plaintiff, for any reason, does not avail himself of the right to appo ar before the auditor, either in person or by counsel at St. Louis, Missouri, ho will be permitted to oxamine the officers by written interrogatories, copies of which shall bo served upon the defendant's attorney at least ten days prior to the first examination conducted by the auditor.

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District of Massachusetts

October 27, 1938

American LaFrance-Foamite Corporation v. American Oil Company.

Interrogatories to parties under Rule 33 may be used to elicit information broader in scope than that which may be elicited by a motion for a bill of particulars under Rulo 12 (e).

(Sec Opinion in this case under Rule 12 (e) )

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