OEHRING et al. v. FOX TYPEWRITER CO.

OEHRING et al. v. FOX TYPEWRITER CO. (Circuit Court of Appeals, Second Circuit. October 23, 1918.) No. 179. Appeal and Error <s=>833(3) — Petition por Rehearing — Time op Filing. Where petition for rehearing was filed with the clerk of the Circuit Court of Appeals and noticed for hearing before the expiration of the term at which decision was handed down, held, that the filing was within time, although, as the court had no session practically between June and October, the petition could not be heard until the next term. Appeal from the District Court of the United States for the Southern District of New York. On petition for rehearing, together with motion for leave to court below to reopen. Petition and motions denied. For former opinion, see 251 Fed. 584, - C. C. A. -. Fred D. Chappell, of Kalamazoo, Mich., and Phillips, Sawyer, Rice & Kennedy, for defendant. Before WARD and MANTON, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. These motions have been heretofore made and denied on the same papers. They were served, filed with the clerk, and noticed for hearing before the expiration of the term, and, as the court has no session practically between June and October, could not have been heard before the next term. We think this filing was in time; otherwise, such motions could only be made during the first eight months of the term. The Supreme Court has expressed a similar view as to applications for certiorari by amending its rule 37, § 4 (37 Sup. Ct. v). The question in this case is not one of damages recoverable by the complainant, but one of a credit to defendant. The master allowed the same proportion of the salesmen’s alleged expenses as he allowed of the investment. The evidence was vague and meager, but in our opinion justified the master’s findings. The motions are denied.