Cimiotti Unhairing Co. v. Bowsky

113 F. 698 | U.S. Circuit Court for the District of Southern New York | 1902

WHEELER, District Judge.

The master has found the defendant’s profits from his admission on the stand that he testified in another proceeding that his profits for unhairing skins on the infringing machines were 75 cents per dozen, all expenses deducted.

One exception of defendant to the report is that the findings are “based upon irrelevant, incompetent, and inadmissible evidence”; another is that only a part of each machine infringed, and that there is no evidence of what part of the profits “resulted from the use in the defendant’s machines of this infringing device.” The defendant’s testimony in the other case, reproduced by his admission in this, related to this infringement, and to the profits realized from it, and there is no fair question but that it was admissible as evidence of the facts stated in it against him. It stated the profits as resulting from the use of the infringing machines, and did not state that any part of them resulted from anything but the infringement, and in reproducing it he did not so state voluntarily, nor on cross-examination by his counsel. Although profits arising from infringement must be distinguished by proof, the failure to claim that any of those testified to by the defendant arose from anything else than the infringement in question, at either time, seems to be evidence from which the master might find that there were none to be distinguished as arising from anything but the infringement.

Exceptions overruled.