Hiram Ricker & Sons v. Leigh — 74 A.D. 138

Majority

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Hiram Ricker & Sons, Appellant, v. Charles N. Leigh, Respondent.

Headnote

Injunction pendente lite—not ref used became the defendant disclaims any intention to continue to commit the acts complained of.

Where the proprietor of a spring, who for many years has been engaged in bottling-the water flowing therefrom and selling it in labeled glass bottles under the name of Poland water, brings an action against a person who, prior to the commencement of the action, had taken bottles which had contained genuine Poland water, and which bore the plaintiff’s labels, trade marks, seals and signature, filled them with distilled water, which was not Poland water, and sold them as and for genuine Poland water, to restrain him from so doing, the fact that the defendant disclaims any intention to continue to commit the acts sought to be restrained affords no reason for the denial of an injunction pendente lite.

Appeal by the plaintiff, Hiram Ricker & Sons, 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

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13th day of May, 1902, denying the plaintiff’s motion for an injunction pendente lite.

Philip Carpenter, for the appellant.

Edwin S. Merrill, for the respondent.

We are not informed of the reasons which induced the learned judge at Special Term to deny the plaintiff’s motion for an in junetian pendente lite, but from an examination of the papers presented upon the appeal we assume it must have been because the defendant disclaimed any intention to commit the acts, to restrain which the injunction was applied for, and under such disclaimer the court did not see any reason for apprehending that during the pendency of the suit anything prejudicial to the rights of the plaintiff would be done by the defendant. As we read the papers on this appeal, we think that the plaintiff has established a clear right to the injunction it- asked for. It is a corporation organized under the laws of the State of Maine and carrying on business in the city of New York. It is the owner and proprietor of a natural spring of water, and for many years the water flowing from that spring has been known under the name of Poland Water and lias been put up by the proprietor in glass bottles which have been labeled and sold by the plaintiff under the name of Poland Water. It is made to appear by affidavit that this defendant had, prior to the beginning of this action, taken the bottles which had contained genuine Poland Water and which bore the plaintiff’s labels, trade marks, seals and signature, tilled them with distilled water which was not Poland Water and sold them with their contents of distilled water as and for genuine Poland Water. It further appears that the defendant was prosecuted criminally for committing the acts of which the plaintiff complains, and that he pleaded guilty in the Court of Special Sessions in the first division of the city of New York, was fined for the offense, and that he paid the fine.

Here then, there is in proof the fact that the defendant has committed acts which would entitle the plaintiff upon final judgment to the relief he demands of an injunction to restrain the defendant and his servants from using the Poland Water bottles, trade marks,

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labels, seals or other property of the plaintiff in the sale of any other than genuine Poland Water and from refilling such bottles with any other than such genuine Poland Water.

It may be that the defendant will voluntarily desist from infringing the rights of the plaintiff hereafter, but that possibility or even probability furnishes no ground for denying the plaintiff the protection of an injunction. The plaintiff is not compelled to rely upon the defendant’s present virtuous intentions. What the defendant did was a wanton invasion of the plaintiff’s right as well as a deception practiced upon the public, and a repetition of such acts should be prevented effectually by the restraining order of a court of equity.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for an injunction pendente Ute granted, with ten dollars costs.

Van Brunt, P. J., Ingraham, Hatch and Laughlin, JJ., Concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.