Слике страница
PDF
ePub

FIRST DEPARTMENT, APRIL TERM, 1893.

of the preservation of the property until a judgment should be entered by the court for its final distribution, including the appointment of temporary receivers to preserve the property. The order appealed from enjoins the Binghamton Trust Company, the permanent receiver, from performing the duties which were imposed upon it by the judgment appointing it; and, as it was the duty of the defendant to carry out the provisions of such final judgment, the order was erroneous.

No question is presented on this record as to a conflict of jurisdiction between different courts, as to which court shall administer the estate, both actions being in the same court, the only question being as to the method by which the court shall protect and distribute this property. Therefore, many of the authorities which have been cited on this appeal have no bearing upon the question presented.

We think the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs, and the temporary injunction vacated.

Present-VAN BRUNT, P. J., and INGRAHAM, J.

Order reversed, with ten dollars costs and disbursements, and the motion for an injunction denied, with ten dollars costs, and the temporary injunction vacated.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE EDISON ELECTRIC ILLUMINATING COMPANY OF NEW YORK, Appeliant, v. EDWARD P. BARKER and Others, as Commissioners of Taxes and Assessments for the City and County of New York, Respondents.

Review of tax assessment - a general statement of personal property, submitted by a taxpayer, insufficient.

In order that the court should interfere with a tax assessment, the party complaining must show affirmatively that he has been aggrieved.

Such requisite proof is not furnished by merely showing, by the return to a writ of certiorari to review a tax assessment upon the value of the personal property of a corporation in New York city, that the relator had sutmitted to the tax commissioners a general statement, under oath, of its property, containing no items, or details by which its accuracy could be judged.

[blocks in formation]

FIRST DEPARTMENT, APRIL TERM, 1893.

The tax commissioners are not bound to accept a general statement of the value of a taxpayer's property furnished by him, for the purposes of assessment, but have a right to judge for themselves on the subject.

APPEAL by the relator, the Edison Electric Illuminating Company of New York, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the city and county of New York on the 4th day of January, 1893, dismissing a writ of certiorari brought to review a tax assessment, under chapter 269 of the Laws of 1880, and section 821 of the New York City Consolidation Act.

C. E. Miller, for the appellant.

G. S. Coleman, for the respondents.

PER CURIAM:

In order that the court should interfere with an assessment, the party complaining must show affirmatively that he has been aggrieved.

In the case at bar upon the coming in of the return to the writ the relater moved for judgment. It appeared from the return that the relator had submitted a statement of its property of the most general character, containing no items or details so that its accuracy could be judged. It is probable that large amounts were deducted in this statement as the value of patent rights, but what they were or what they were worth does not appear.

We do not think that the commissioners were bound to accept these wholesale statements as absolutely true, but had a right to judge for themselves. If the relator desired to impeach their judgment it had ample opportunity in this proceeding by evidence to show that the valuation of the respondents was erroneous, and thus to have relief. If the relator's position is correct the tax commissioners are powerless to reject a statement which they know to be false or misleading, as they have no power to call and examine witnesses before them.

The commissioners have a right to be guided by their own judgment, and in order that their action shall be reversed such judgment must be shown to be erroneous by legal evidence, and not by lump

FIRST DEPARTMENT, APRIL TERM, 1893.

swearing by a person who is not shown to have the requisite knowledge to be a competent witness.

The writ should be dismissed, with costs.

Present - VAN BRUNT, P. J., and O'BRIEN, J.

Writ dismissed, with costs.

REBECCA BABBвітт, Appellant, v. DAVID S. BROWN and Others, Respondents.

Trade-mark - size and color of wrappers similarity of names.

A trade-mark cannot be acquired in the size and color of the wrappers of a commodity; nor in the words "Trade-mark - Best Soap."

The name "B. T. Butler's" preceding the words "Trade-mark - Best Soap," upon cakes of soap and their wrappers, is not so similar to the name "B. T. Babbitt's," preceding the same words, as to call for the restraint of its use as an infringement of a trade-mark, in the absence of proof that anyone had been deceived thereby, and where the form and size of the cakes of soap differ.

APPEAL by the plaintiff, Rebecca Babbitt, from a judgment of the Supreme Court, dismissing the complaint upon the merits, rendered at the New York Special Term and entered in the office of the clerk of the city and county of New York on the 15th day of March, 1891.

R. H. McGrath, Jr., for the appellant.

Rowland Cox, for the respondents.

VAN BRUNT, P. J.:

This action was instituted to enjoin an alleged infringement of what is designated a trade-mark, and for an accounting for profits and damages. The plaintiff is the successor of B. T. Babbitt, who, for many years prior to his death, carried on the business of manufacturing soap in the city of New York, and during that period manufactured an article known as B. T. Babbitt's Best Soap. This soap was prepared for sale in cushion-shaped cakes, upon one side of which was stamped in large script letters "B. T. Babbitt." Immediately below that and in smaller full-faced capital letters was the word "Trade-mark," preceded by a device known as an arrow FIRST DEPARTMENT, APRIL TERM, 1893. pointing to the right, and followed by a like device pointing to the left. On the third line were the words "Best Soap" in large fullfaced capital letters. Upon the opposite side of the cake were the words "B. T. Babbitt, New York City." These cakes were wrapped in an orange-colored wrapper, upon which appeared the same words similarly arranged, but in larger letters.

The defendants are manufacturing and selling soap made in cushion-shaped cakes of a somewhat different size and shape from the plaintiff's. These cakes have stamped upon each face the words "B. T. Butler's," occupying one line; on a second line, the word "trade-mark" preceded and followed by a device known as an arrow; and on the third line the words "Best Soap;" and wrapped in an orange-colored paper of about the same size as that of the plaintiff's, but differing in general appearance, and the printing thereon being dissimilar, with the exception of the words "Trademark - Best Soap." No proof whatever was offered upon the trial that any person had been deceived into buying the soap of the defendants, supposing it was that of the plaintiff.

Upon these facts, we fail to see how it was possible to sustain an injunction against the defendants.

In the case of Enoch Morgan's Sons Co. v. Troxell (S9 N. Y. 292), it was expressly held that a party cannot acquire a trade-mark simply in the form and color of the package, or the manner in which it is wrapped, and that mere general resemblance forms no ground for interference, as the products of dealers can be distinguished only by the brands, marks or names which may be put upon them, and these can be protected as trade-marks only as far as they are new and comply with the other conditions necessary to constitute a trade-mark. When there is a simulation of a trade-mark, and the intent becomes a subject of inquiry, the form, color and general appearance of the packages may be material, but to sustain an action there must be an imitation of something that can legally be appropriated as a trade-mark.

When we apply these rules to the case at bar, and it being conceded that no trade-mark can be acquired in the words "Trademark - Best Soap," no matter what type they may be printed in, there seems to be nothing upon which to found a claim of an infringement of any trade-mark owned by the plaintiff. As already FIRST DEPARTMENT, APRIL TERM, 1893. suggested, the cakes were of different size and different form, the only words in common upon them being the words "Trademark - Best Soap;" and these are the only words in common upon the wrapper. The only resemblance seems to be in the size and color of the wrappers, and in such size and color, as already suggested, the plaintiff cannot acquire a trade-mark.

As was said in Richardson & Boynton Co. v. Richardson & Morgan Co. (27 N. Y. St. Repr. 808), "In cases of this description each contains features peculiar to itself, and the right to relief depends rather on questions of fact than on questions of law. The rule which governs adjudications in respect to questions such as that presented by the case at bar is reasonably plain, and it is distinctly held that such a similarity of names as is likely to produce confusion in the minds of ordinary unsuspecting persons, will be restrained. Therefore, the question involved in this case is, was there such a similarity of names? We might indulge in speculation in reference to the likelihood of confusion arising from similarity of these names in the conduct of business, and that such similarity was calculated to deceive and impose upon the public and upon the purchasers of goods of the character in which the parties to this action were accustomed to deal. But the most satisfactory evidence in reference to the results likely to follow from alleged similarity is evidence of actual cases in which such deception and imposition has occurred."

Applying these suggestions to the case at bar, it appears that there is no proof that anybody has been deceived, and we cannot see that there is any likelihood of anybody being deceived. Any acquaintance with the particular characteristics of the wrappers and form of the cakes of the plaintiff's merchandise would at once detect the difference, if an attempt was made to impose upon purchasers the defendants' merchandise.

We think the judgment should be affirmed, with costs.

O'BRIEN and FOLLETT, JJ., concurred.

Judgment affirmed, with costs.

« ПретходнаНастави »