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HENNESSEY v. BUDDE et al.

(Circuit Court, S. D. New York.

August 26, 1897.)

1. Violation of Injunction — Finding of Referee.

The finding of a referee, upon conflicting evidence, that an injunction defendant 'lias not violated the injunction, will not be disturbed.

2. Same — Costs of Reference.

Where an injunction complainant has proceeded to a reference in a proceeding to punish the defendant for a violation of the injunction, he should, if unsuccessful, pay the costs of the reference.

John A. Straley, for the motion.

S. L. Pincoffs, opposed.

*542LACOMBE, Circuit Judge.

As the case stood when it was .sent to tlie referee, there was such a conflict of evidence on the face of the affidavits that complainant was not entitled to an order punishing the defendants, or either of them, for contempt. Had the matter stopped there, the application would have been denied, without costs. Hoping, however, to make out a case of violation of the injunction, complainant proceeded to the reference, and, if unsuccessful, should pay the costs thereof.

Before the referee, complainant, irrespective even of Duffy’s testimony, made out a prima facie case, but upon all material points defendants’ witnesses flatly contradicted those called by the complainant; and the court sees no reason to overrule the conclusions of the referee, who saw the witnesses and heard their testimony. The objections to report are overruled, report confirmed, and order to that effect entered, providing that complainant pays the referee’s fees and expenses of the reference. Referee’s fee is fixed at $75

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