The plaintiff obtained a preliminary injunction against the defendant in an action for infringement of a design patent. Later the complaint was dismissed and the case was referred to a special mas.ter to assess any damages which the defendant suffered by reason of the injunction. The master reported that the defendant had suffered damages to the extent of $115.50; but the expenses of the reference amounted to $2,308.75. The judge found these expenses were occasioned without justification, saying in his opinion: “the actual award of $115.50 after such a long period of time and taking of so much testimony and exhibits, quite clearly shows that the reference was not really justified, and that the defendant was unable to prove damages of any large amount, and it might be said, deliberately paid no attention to repeated statements of the referee (sic) as to what he desired in order to base a finding of damage.” The successful party may be charged with the whole, or part, of the costs of an unnecessary reference, which like this proved futile and was factiously prolonged. Salvage Process Corp. v. Acme Tank Corp., 2 Cir., 104 F.2d 105, 107.
Judgment affirmed.