Prince Manufacturing Co. v. Prince's Metallic Paint Co. — 20 N.Y. St. Rep. 923

Majority

p. 923

Prince Manufacturing Company, Resp’t, v. Prince’s Metallic Paint Company, App’lt.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

1. Jurisdiction—To punish non-resident por contempt.

The court has jurisdiction t.) punish a non-resident for a violation of an" injunction order.

2. Practice—Contents oe order adjudging party guilty op contempt. '

It is not necessary that an order .adjudging a defendant guilty of contempt should declare in the precise words of the statute that the conduct of the defendant was such as to defeat, impair, impede or prejudice some right or remedy of the plaintiff, if the papers upon which the order was granted contain facts showing that such would be the result. Tiseher v. Lamgbem, 2 N. Y. State Rep., 84, followed.

Appeal from order adjudging defendant guilty of contempt in violating a preliminary injunction.

John Frankenheimer, for app’lt; J. Davenport, for resp’t.

The parties to this action are non-resident corporations. The action was brought to prevent the use of a trade-mark, the title to which is claimed by both parties. The preliminary injunction having been granted, it is to be assumed that the court had acquired jurisdiction of the parties and the subject-matter. Indeed, there is no question about that circumstance. The asserted violation of the injunction, which was held by the court below to have been committed, was a sale of paint to L. Burton & Co., at Troy, N. Y.; another to J. S. Briggs & Co., in Boston, and affixing the trade-mark to car-loads of paint at Lehigh Gap, in Pennsylvania. It seems to be established by the evidence that the sale to Burton & Co. was made in this state, and assuming that the other sale and the affixing of the trade-mark mentioned were done in the states of

p. 924

Massachusetts and Pennsylvania, there is sufficient to justify the order declaring the injunction violated.

Indeed the real question in controversy between the parties, and the only one which it is necessary to consider is, whether the parties, being non-residents, the court has jurisdiction to punish for a.violation of the injunction granted. There can be no doubt that the courts of this state have- general equitable jurisdiction and can enjoin parties to a suit pending before it from bringing an action against the adverse party for the same subject matter in a foreign court. It is the duty of the court to exercise this power.upon the presentation of a proper case when it can be done consistently with the acknowledged practice in courts of equity. This power has been exercised for more than two hundred years. Great Falls Mfg. Co.v. Worster, 23 N. H. Foster, 462; see also 2 Wait’s Pr., 44, where the cases bearing upon this proposition are collated.

The court having acquired jurisdiction of the parties and of the subject matter, and having in the exercise of its jurisdiction. restrained the defendant from doing certain acts mentioned in the injunction order, there can be no doubt that in reference to that order, as long as it exists, the court has jurisdiction to punish the defendant for a violation of its provisions.

Tho pwver to be thus employed is kindred to that by which rhe court may restrain the commencement of an action in a foreign court, and must necessarily exist in order to carry out the authority which the court acquires by the proper commencement of’ an action bringing the parties within its jurisdiction. If any other rule prevailed, the parties by a mere change of residence in an action so commenced could avoid the responsibilities entailed upon them by the exercise of existing and undoubted jurisdiction.

The proposition that the affixing of the trade-mark to the cars of paint at Lehigh Gap was not a violation of the injunction order as illustrated by the case of the Porous Plaster Co. v. Seabury (7 N. Y. State Rep., 249) is erroneous. .

The language of the injunction here is broader than in that case, and expressly prohibits ‘ ‘ the use of the name Prince to designate or describe any article of paint now or hereafter manufactured or sold, or advertised or exposed for sale by them, or either of them, and from inserting in the papers advertisements denying the right of the plaintiff to the use of the designation “ Prince’s Metallic Paint.” Therefore the case cited is not controlling. Indeed it may be said to have no application whatever to the facts developed in this case.

p. 925

It is objected also that the injunction order is not sufficient, for the reason that it does not declare the conduct of the defendant to be such as to defeat, impair, impede or prejudice a right or remedy of the plaintiff. But this is. not necessary, as determined in the case of Fischer v. Langbein ( 103 N. Y., 84 ; 2 N. Y. State Rep., 768), where it was decided that if the papers upon which the ordef rested contained facts showing that such would be the result, it would be sufficient; and that it was not necessary to recite the words of the statute ipsissimis Yerbis..

The order should be affirmed, with $10 costs and disbursements.

Van Brunt, Ch. J., and Macomber, J., concur.