
    CIMIOTTI UNHAIRING CO. et al. v. BOWSKY.
    (Circuit Court, S. D. New York.
    January 18, 1902.)
    Equity — Rkferbkce—Reofekutg Hearihg skfork Master.
    Upon a reference to ascertain the damages for infringement oC a patent complainant introduced before the master testimony given by defendant in another suit as to the profits made by him by the use of the infringing machines. Defendant’s counsel made no effort to correct such testimony, but elected to rely on his exception to the master’s report on the ground that the testimony was incompetent. Held that, after the court had overruled such exception, it would not reopen the hearing before the master to permit defendant to show that his testimony in the previous suit was inaccurate.
    In Equity. Suit for infringement of patent. On motion to reopen hearing before master.
    See 95 Fed. 474.
    Henry Schreiter, for motion.
    Louis C. Raegener, opposed.
   LACOMBE, Circuit Judge.

Upon the hearing before the master defendant was examined, and admitted that he had testified in, another suit that he made profits on unhairing skins at the rate of 75 cents per dozen. He now says that the statement he made in the former trial was inaccurate, and that he knew it to be inaccurate when on the second trial he admitted that he had made it. The excuse given for not correcting it is that counsel supposed the master would give no weight to the admission of the witness. That excuse terminated when the master filed his report, which was based mainly upon this very admission. Defendant made no effort, by motion before the master, to have the case opened, and to be given the opportunity to show that his statement in the former trial was inaccurate. On the contrary, he elected to except to the report, saying nothing of any inaccuracy, and assuming that he would succeed in convincing this court that the master was in error. He failed to convince the court, and the master’s report was confirmed. Defendant now moves to reopen the case, and to be allowed to put in before the master testimony of which he knew, and which was available to him when the hearing before the master was going on. Such practice is unheard of, and would be intolerable.

The motion is denied.  