John B. Stetson Co. v. Stephen L. Stetson Co.

Second Circuit

John B. Stetson Co. v. Stephen L. Stetson Co.

133 F.2d 129, 56 U.S.P.Q. (BNA) 282, 1943 U.S. App. LEXIS 3767

CourtCourt of Appeals for the Second Circuit

DecidedJanuary 25, 1943

DocketNo. 145

StatusPublished

Cited by7 cases

This text of 133 F.2d 129 (John B. Stetson Co. v. Stephen L. Stetson Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

John B. Stetson Co. v. Stephen L. Stetson Co., 133 F.2d 129, 56 U.S.P.Q. (BNA) 282, 1943 U.S. App. LEXIS 3767 (2d Cir. 1943).

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Opinion

PER CURIAM.

Upon the prior appeal an order denying the plaintiff’s motion to hold the defendant in civil contempt was reversed and the cause remanded for further proceedings in ■conformity with the opinion. John B. Stetson Co. v. Stephen L. Stetson Co., Lt’d, 2 Cir., 128 F.2d 981. The present appeal is from the interlocutory decree entered upon our mandate. It is urged that the decree does not follow the mandate in three respects.

1. The decree directs a reference to a special master “to ascertain and report the expenses and damages which the plaintiff has sustained, including the said defendant’s profits, by virtue of the said contempt.” There is no error in requiring the defendant to account for profits in a civil contempt proceeding. Leman v. Krentler-Arnold Co., 284 U.S. 448, 457, 52 S.Ct. 238, 76 L.Ed. 389. The decree is no broader than the intendment of our opinion. In remanding for assessment of “damages” the word was used generically; it does not exclude damages in the form of profits. We cannot accept the argument that Rule 16 of the Civil Rules of the District Court for the Southern District of New York should be construed so literally as to require the moving party’s affidavit to set out the evidence upon which the amount of damages in the form of profits may be determined. In the nature of things such facts cannot be known to the plaintiff and are known to the defendant.

[131]*1312. We do not consider the restriction contained in paragraph 5 of the decree to be a departure from the intendment of our opinion and mandate. Moreover, counsel frankly admitted that the form of proposed decree submitted on behalf of appellant invited adoption of the language to which objection is now urged.

3. The letter which paragraph 7 of the decree requires the appellant to mail to its future dealer-customers imposes unnecessarily burdensome requirements. It will suffice if the letter follows the form printed in the margin.¹ We do not think it necessary to require future dealer-customers to sign and return a copy of such letter. A post office receipt showing the date of mailing and the name and address of the addressee will serve the purpose of proving that the customer was properly warned. The decree is modified as above indicated, and, as modified, is affirmed. No appellate costs are awarded to either party.

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PER CURIAM.

Upon the prior appeal an order denying the plaintiff’s motion to hold the defendant in civil contempt was reversed and the cause remanded for further proceedings in ■conformity with the opinion. John B. Stetson Co. v. Stephen L. Stetson Co., Lt’d, 2 Cir., 128 F.2d 981. The present appeal is from the interlocutory decree entered upon our mandate. It is urged that the decree does not follow the mandate in three respects.

1. The decree directs a reference to a special master “to ascertain and report the expenses and damages which the plaintiff has sustained, including the said defendant’s profits, by virtue of the said contempt.” There is no error in requiring the defendant to account for profits in a civil contempt proceeding. Leman v. Krentler-Arnold Co., 284 U.S. 448, 457, 52 S.Ct. 238, 76 L.Ed. 389. The decree is no broader than the intendment of our opinion. In remanding for assessment of “damages” the word was used generically; it does not exclude damages in the form of profits. We cannot accept the argument that Rule 16 of the Civil Rules of the District Court for the Southern District of New York should be construed so literally as to require the moving party’s affidavit to set out the evidence upon which the amount of damages in the form of profits may be determined. In the nature of things such facts cannot be known to the plaintiff and are known to the defendant.

[131]*1312. We do not consider the restriction contained in paragraph 5 of the decree to be a departure from the intendment of our opinion and mandate. Moreover, counsel frankly admitted that the form of proposed decree submitted on behalf of appellant invited adoption of the language to which objection is now urged.

3. The letter which paragraph 7 of the decree requires the appellant to mail to its future dealer-customers imposes unnecessarily burdensome requirements. It will suffice if the letter follows the form printed in the margin.¹ We do not think it necessary to require future dealer-customers to sign and return a copy of such letter. A post office receipt showing the date of mailing and the name and address of the addressee will serve the purpose of proving that the customer was properly warned. The decree is modified as above indicated, and, as modified, is affirmed. No appellate costs are awarded to either party.

Manhattan Industries, Inc., Bayard Shirt Corporation, and Don Sophisticates, Inc. v. Sweater Bee by Banff, Ltd., and Robert Belsky, Sweater Bee by Banff, Ltd., Contempt-Plaintiff-Appellant v. Manhattan Industries, Inc., Bayard Shirt Corporation, Champpierre, Ltd., Laurence L. Leeds, Jr., Donald Kallman, Robert Hamel, and Fred Feldstein, Contempt-Defendants, Manhattan Industries, Inc., Bayard Shirt Corporation, Donald Kallman, and Robert Hamel, Contempt-Defendants-Appellees

885 F.2d 1 (Second Circuit, 1989)

Laurie Connolly D/B/A Brindar Designs v. J.T. Ventures and John Lange

851 F.2d 930 (Seventh Circuit, 1988)

Bennett Bros. v. Floyd Bennett Farmers Market Corp.

22 Misc. 2d 833 (New York Supreme Court, 1960)

Champion Spark Plug Co. v. Sanders

102 F. Supp. 340 (E.D. New York, 1952)

Holmes v. Atlas Garage Door Co.

63 F. Supp. 692 (S.D. California, 1945)

John B. Stetson Co. v. Stephen L. Stetson Co.

58 F. Supp. 586 (S.D. New York, 1944)

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133 F.2d 129, 56 U.S.P.Q. (BNA) 282, 1943 U.S. App. LEXIS 3767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-b-stetson-co-v-stephen-l-stetson-co-ca2-1943.

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