Celluloid Mfg. Co. v. Cellonite Mfg. Co.

• Decision Date: 06 November 1889
• Citation: Celluloid Mfg. Co. v. Cellonite Mfg. Co., 40 F. 476 (S.D. N.Y. 1889)
• Parties: CELLULOID MANUF'G CO. v. CELLONITE MANUF'G CO.
• Court: U.S. District Court — Southern District of New York

40 F. 476

CELLULOID MANUF'G CO. v. CELLONITE MANUF'G CO.

United States Circuit Court, S.D. New York.

November 6, 1889

J. E Hindon Hyde, for complainant.

John R Bennett, for defendant.

WALLACE J.

The exceptions filed by the defendant to the report of the master, to whom it was referred to take an account of damages and profits, impugn every important finding of the master upon matters of fact, and also his conclusion of law upon the facts. The testimony taken before the master has been examined sufficiently to ascertain that it justifies his findings of fact. In the view most favorable to the defendant, the master has only found against the defendant upon facts as to which there is a fair conflict of testimony. His findings, therefore, should not be disturbed. Mason v. Crosby, 3 Woodb. & M. 258. Although the testimony bearing upon the exceptions has been thus examined, it is not to be understood that the court is of the opinion that the defendant is entitled to have these exceptions considered. In his draft report the master made the same findings, and no objections to them were interposed by the defendant. According to the correct practice, no exceptions to a report can be considered which were not taken before the master in the form of objections to his draft of the report. The reason for this rule of practice is that the master might have allowed the objections, and corrected his report, if errors had been pointed out to him; thus saving the parties unnecessary expense, and the court unnecessary trouble. 2 Daniell, Ch.Pr (2d Amer.Ed.) 1483; Church v. Jaques, 3 Johns.Ch. 81; Byington v. Wood, 1 Paige, 145; Copeland v. Crane, 9 Pick, 73; Story v. Livingston, 13 Pet. 359; Gaines v. New Orleans, 1 Woods, 104; Gordon v. Lewis, 2 Sum. 143; Nail Factory v. Corning, 6 Blatchf. 328. So far as the cases of Hatch v. Railroad Co., 9 Fed.Rep. 856, and Jennings v. Dolan, 29 F. 861, relax this rule of practice, they are inconsistent with the practice in this circuit, as recognized in the case of Nail Factory v. Corning. When the correctness of the principal finding of the master-- a finding upon the ultimate question of fact referred to him-- is controverted, it is hardly to be supposed that an objection to the draft report would have induced him to change his conclusion, and consequently the reason for the rule does not fully obtain; but it is no hardship to the dissatisfied party to require him to state his objections, and, unless the precedents are to be disregarded, he must be deemed to waive any objection which he does not state. If, owing to accident, surprise, or any other sufficient excuse, the objections have not been properly taken before the master, the court may, upon an application showing the facts, recommit the report to the master, and allow the dissatisfied party to make and argue the objections before him, or may permit the exceptions to be filed as though the objections had been properly taken.

The practice thus referred to does not preclude the defendant from being heard upon a question of the correctness of the legal conclusion reached by the master. Where the master, by his report, states the facts correctly, but errs as to the legal conclusion, the party against whom he errs is not required to except to the report, but may bring the question to the attention of the court upon further directions; or, if the report is made pursuant to an interlocutory decree, when the cause comes on to be disposed of by a final decree. 2 Daniell,...