Colonial Book Co. v. Amsco School Publications
Citation | 48 F. Supp. 794 |
Parties | COLONIAL BOOK CO., Inc., v. AMSCO SCHOOL PUBLICATIONS, Inc. |
Decision Date | 24 September 1942 |
Court | U.S. District Court — Southern District of New York |
Morris Kirschstein, of New York City, for plaintiff.
Wittenberg, Carrington & Farnsworth, of New York City (Philip Wittenberg, of New York City, of counsel), for defendant.
NEVIN, District Judge (sitting by designation).
Based on a decision of this Court filed on September 9, 1941, 41 F.Supp. 156, an interlocutory judgment was entered herein on September 22, 1941, and the cause referred to a special master for an accounting.
On September 26, 1941, a perpetual injunction issued and, on September 29, 1941, it was served on defendant herein, enjoining defendant from doing the certain things as in said injunction set forth. No appeal was, or has ever been, taken from the judgment or order of injunction.
On March 24, 1942, defendant filed a note of issue re motion for an order granting a new trial. On April 13, 1942, plaintiff filed a note of issue re motion for an order striking defendant's motion for a new trial. The cause is now before the court on these two motions.
Briefs have been submitted in support of and contra the respective motions and, on May 22, 1942, oral arguments were made by counsel for the respective parties.
Plaintiff submits that ; that , and that "defendant's motion for a new trial should be vacated and stricken." (citing) Abruzzino v. National Union Fire Insurance Co., D.C., 35 F.Supp. 925.
Defendant contends that , and "that the motion to strike under Rule 59 should not be granted for the reason that the limitation of time imposed thereby has not yet expired in view of the interlocutory nature of the judgment herein."
Defendant further contends that (citing) American United Life Ins. Co. v. Haines City, Fla., 5 Cir., 117 F.2d 574, 575; Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475; General Motors Corp. v. Franklin Die Casting Co., D.C., 41 F.Supp. 340; Bucy v. Nevada Const. Co., 9 Cir., 125 F. 2d 213, 216.
Upon a consideration of both motions, and in order to simplify future procedure, the Court — assuming for present purposes that it has jurisdiction — has concluded, solely for the purposes of the record in the instant case, to overrule and deny plaintiff's motion to strike, and this ruling has been noted by the Court on the motion.
Defendant bases its motion for a new trial "on the ground of newly discovered evidence and on the ground that the judgment entered herein was taken against the defendant through surprise, and for reasons beyond the control of the defendant."
Affidavits of counsel and others have been filed by and on behalf of the respective parties.
Defendant asserts its motion is made "pursuant to Rules 59 and 60 (Federal Rules of Civil Procedure following 28 U. S.C.A., section 723c) for an order granting a new trial on the ground of newly discovered evidence and surprise in the entry of the judgment against it."
The Court is of opinion, and so finds, that Rule 60 Federal Rules of Civil Procedure, has no application in or to the instant case, and that defendant's motion, insofar as it is based on Rule 60, is not well taken.
Defendant, in its brief supporting its motion, says:
Plaintiff, in its brief, makes the following assertions in reply:
(citing) Cuno Engineering Corporation v. Hudson Auto Supply Co., Inc., D.C., 49 F.2d 654; Ingle v. Landis Tool Co. et al., D.C., 277 F. 247, modified 3 Cir., 286 F. 5, 6.
In Cuno Engineering Corp. v. Hudson Auto Supply Co., supra, 49 F.2d 654, the Court says: "The defendants, having lost their case on one theory, now seek to try it on another.
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...theory, now seek to try it on another. This cannot be allowed, if trials are to conclude anything.' Colonial Book Co., Inc. vs. Amsco School Publications, Inc., D.C.N.Y. 48 F.Supp. 794, affirmed (2 Cir.) 142 F.2d 362 citing Cuno Engineering Corp. vs. Hudson Auto Supply Co. (D.C.), 49 F.2d 6......
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Alison v. United States, 118
...was not discoverable in time for trial by diligent effort." This of course is a necessary requirement, Colonial Book Co. v. Amsco School Publications, D.C.S.D.N.Y., 48 F.Supp. 794, affirmed 2 Cir., 142 F.2d 362. Here Mrs. Alison could have obtained Captain Rathbun's statement sooner during ......
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Colonial Book Co. v. Amsco School Publications, 306.
...as demonstration in the later case, by a motion for new trial for newly discovered evidence; but the court in a careful opinion, D.C.S.D.N.Y., 48 F.Supp. 794, denied the motion, saying that, since defendant had rested and lost its case upon one legal theory, it should not be permitted a ret......