Opinion
No. 138.
December 20, 1945.
Appeal from the District Court of the United States for the Southern District of New York.
Action by Gold Seal Importers, Inc., against Morris White Fashions, Inc., to restrain an alleged infringement of a design patent. From a judgment awarding against the defendant and in favor of the plaintiff two-thirds of the expenses of a reference before a special master appointed to assess defendant's damages suffered because of a temporary injunction granted the plaintiff before the complaint was dismissed upon the merits, 4 F.R.D. 386, the defendant appeals.
Affirmed.
Archibald Palmer, of New York City, for appellant.
Morris Hirsch, of New York City, for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
The plaintiff obtained a preliminary injunction against the defendant in an action for infringement of a design patent. Later the complaint was dismissed and the case was referred to a special master to assess any damages which the defendant suffered by reason of the injunction. The master reported that the defendant had suffered damages to the extent of $115.50; but the expenses of the reference amounted to $2,308.75. The judge found these expenses were occasioned without justification, saying in his opinion: "the actual award of $115.50 after such a long period of time and taking of so much testimony and exhibits, quite clearly shows that the reference was not really justified, and that the defendant was unable to prove damages of any large amount, and it might be said, deliberately paid no attention to repeated statements of the referee (sic) as to what he desired in order to base a finding of damage." The successful party may be charged with the whole, or part, of the costs of an unnecessary reference, which like this proved futile and was factiously prolonged. Salvage Process Corp. v. Acme Tank Corp., 2 Cir., 104 F.2d 105, 107.
Judgment affirmed.