Rockowitz Corset & Brassiere Corp. v. Madame X Co.

Majority

p. 557

Rockowitz Corset and Brassiere Corporation, Respondent, v. Madame X Company, Inc., and Others, Appellants.

First Department,

March 4, 1927.

Headnote

Appeal — case on appeal — amendments—amendments to allow printing in record of defendants’ proposed requests to find were properly allowed — defendants should have been permitted to amend to show those requests as first modified and found by trial justice — certain amendments to correct stenographer’s minutes allowed and others disallowed—certain exhibits not to be printed but to be described — permission given either party to hand up exhibits on oral argument — court specifies how certain exhibits shall be described in record — amendment seeking to incorporate into marked exhibit two other papers not marked and not physically connected to exhibit is disallowed.

It was proper for the trial court to allow the defendants to amend the ease on appeal • so as to print in the record defendants’ proposed requests to find, but the defend

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ants should also have been permitted to amend the ease to show those requests as first modified and found by the trial justice.

Certain amendments for the purpose of correcting the stenographer’s minutes were properly allowed, while certain other amendments for the same purpose should not have been allowed.

The Appellate Division directs that certain exhibits need not be printed in the ease on appeal, but that they shall be adequately described, and all may be handed up by any party upon the oral argument.

The Appellate Division specifies how certain exhibits that are not to be printed shall be described in the case on appeal.

The defendants did not have the right to an amendment to incorporate into a marked exhibit two bundles of papers not marked and not physically connected with the marked exhibit.

Appeal by the defendants, Madame X Company, Inc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of October, 1926, denying defendants’ motion to resettle the case on appeal herein by disallowing certain proposed amendments heretofore allowed.

Neil P. Cullom of counsel f James E. Freehill with him on the brief; Neil P. Cullom, attorney, for the appellants Madame-X Company, Inc., and others]; Slade & Slade, attorneys for appellants Weil.

Frank C. Lauglilin of counsel [W. Dams Conrad and Stewart W. Bowers with him on the brief; Carson & Conrad, attorneys], for the respondent.

These amendments fall into four groups. The first group deals with those amendments which seek to have printed in the record the requests to find as proposed by the defendants. These amendments were properly allowed, since otherwise the record would not show what requests to find the defendants had proposed, and the order denying the motion to resettle by disallowing them should in this respect be affirmed. The defendants, however, are entitled to have the record also show these requests as first modified and found by the trial justice.

The second group relates to certain amendments where the accuracy of the stenographer’s minutes is questioned. In our view the following were correctly allowed: Amendments Nos. 91, 124, 147, 262 and 274. Amendments Nos. 33, 47, 57, 121, 134, 157, 167, 178, 179, 226, 227, 228, 229, 249 and 253 should be disallowed. Amendment No. 180 should be modified by disallowing the change from “ I ” to “ plaintiff,” but otherwise allowed. Amendment No. 266 should be modified by disallowing the insertion of the word “ never ” between the words “ I ” and “ knew,” but otherwise allowed.

The third group relates to the non-printing of certain exhibits.

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The following exhibits need not be printed in the case on appeal, but all of them shall be adequately described in the case on appeal and all may be handed up by any party upon the oral argument: Plaintiff’s Exhibits 17-A, 18, 19, 20, 21, 22, 37, 46, 47, 48, 49, 50, 51, 52, 53, 54, 28, 29, 41, 42, 45, 58, 66. Defendants’ Exhibits F, I, J, K, L, S, T, V, X, Y and AA. Plaintiff’s Exhibits 1 to 6, inclusive, and No. 30 shall be inserted in the case on appeal by photostatic copies. This is in accordance with the written consent of the attorney for plaintiff, respondent.

The fourth group relates to what is a proper description for the record of Exhibits 296 to 303, inclusive, in lieu of printing the full exhibits therein. The allowance of these amendments should be modified so that they will read as follows:

Amendment No. 296. Nine order stubs showing the names and addresses of nine individual purchasers from the Madame X Corset Co. The first order is dated August 28, 1915, and the last is dated September 7, 1915.

Amendment No. 297. Twenty-two order stubs in one order book showing the names and addresses of twenty-two „ individual purchasers from the Madame X Corset Co. The first order is numbered 3703.

Amendment No. 298. Eighteen order stubs in one order book showing the names and addresses of eighteen individual purchasers from the Madame X Mfg. Co., the first one having the date thereon April 14. The first order is numbered 86383.

Amendment No. 299. Twenty-four order stubs showing the names and addresses of twenty-four individual purchasers from the Madame X Mfg. Co., the first being dated October 13 (being the year 1915)' and the last March 22,1916. The first order is numbered 71951.

Amendment No. 300. Fourteen order stubs showing the names and addresses of fourteen individual purchasers from the Madame X Corset Co. in the year 1915.

Amendment No. 301. Nine order stubs showing the names and addresses of nine individual purchasers from the Madame X Corset Co. in the year 1915.

Amendment No. 302. Sixteen order stubs in one order book showing the names and addresses of sixteen individual purchasers from the Madame X Mfg. Co. The first order is numbered 78884 and the last one is numbered 78899.

Amendment No. 303. Twenty-one order stubs showing the names and addresses of twenty-one individual purchasers from the Madame X Mfg. Co., the first being numbered 78833, undated, and the second being numbered 78834, dated November 6, 1914; the last

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being numbered 78849 and undated, and a preceding stub numbered 78848 having thereon the date January 4, 1915.

Amendment No. 245 should be disallowed. The amendment sought to incorporate into a marked exhibit two other bundles of papers not marked and not physically connected with the marked exhibit, which latter purports to be a true copy from the records of the Patent Office of the petition for cancellation in Matter of Cancellation Proceeding No. 1,131 Madame X Co. v. Abraham Rockowitz, which is marked “ Defts’ Ex. AA Oct. 21 /25,” and consists of photostatic copies bound together and sealed and certified by the Commissioner of Patents and attested by the Chief of Division.

Amendment No. 20 was properly allowed.

As so modified the order appealed from should be affirmed, without costs.

Dowling, P. J., Meerell, McAvoy and Proskauer, JJ., concur.

Order modified as indicated in opinion and as so modified affirmed, without costs. Settle order on notice.