« ΠροηγούμενηΣυνέχεια »
their natural channel, around the whole of the stream, as it winds and turns through the premises of said plaintiffs, and after using the water of said creek for the purposes of defendant's new rolling mill, which is a large and extensive establishment, for the manufacture of iron, situated partly on said excepted acre and partly on lands of defendant, adjoining said acre, on the south, and erected about the year 1840, the defendant restored, and has ever since restored, and still continues to restore to the creek the waters so diverted, at a point about two hundred feet below where the shovel factory dam stood, and below the above described premises of the plaintiffs, by means whereof the volume of water in said creek in its entire circuit through the plaintiffs' said premises is diminished, and its hydraulic power destroyed or impaired to such a degree as to render it utterly insufficient and worthless, for the purpose of propelling machinery or other hydraulic works, and the plaintiffs' premises injured and their value depreciated, and the plaintiffs, unless the court grant the relief hereinafter prayed, put to great and irreparable damage and injury in consequence thereof.
And the plaintiffs further allege, that at the time of, and for a long time prior to the time of, such diversion of said stream by the defendant, the water of said stream was used by defendant, as he lawfully might from said rolling mill dam, to propel the machinery of a rolling mill, situate on the north bank of said creek, partly on the extreme southern portion of what is now the plaintiffs' premises, as above described, and was then carried in a trunk or race across the stream, and used by defendant to propel the machinery of a nail factory, immediately opposite said last mentioned rolling mill, and situated at the southeast corner of said excepted acre, partly upon and partly off the same, and the water thus used was then wholly restored to the creek, at a place a few feet north of where it crosses the southerly line of and enters the plaintiffs’ said premises, thus leaving the whole volume or current of the stream in its natural bed or channel, as it winds and turns around nearly the whole of said excepted acre, and through plaintiffs’ said premises ; nor was it ever diverted from such natural bed or channel until the building of said new rolling mill, and its diversion, by the defendant, at or about the time and in the manner hereinbefore mentioned.
Wherefore the plaintiffs demand that the defendant be perpetually enjoined and restrained from diverting said stream, or turning the waters thereof from their natural bed or channel, by means of any ditch or trunk, or otherwise, or from drawing and using the same, in the manner now done by said defendant.
Also, that said defendant be adjudged to restore the waters of said Wynantskill to their natural bed or channel at the place where they were heretofore restored, after their proper use by defendant, to wit, at or near the south line of the said excepted acre, adjoining the point where the said creek crosses the plaintiffs’ southerly line into their premises.
Also, that said defendant be adjudged to pay the plaintiffs the damages sustained by them by reason of such diversion of said stream, in the sum of one hundred dollars, or for such other or further relief as the court shall think proper to grant, with costs of this action.
S. & V. S.,
For injunction to restrain unlawful use of trade marks,
praying an account of profits and payment thereof to plaintiff.
SUPERIOR COURT OF THE CITY OF NEW-YORK.
William P. Fetridge
agt. Marvin J. Merchant, John Doe and Richard
The plaintiff, for complaint in this action, alleges: That he is informed and believes, that about ten years since, a person named A. de Fontaine, then a resident of Boston, Massachusetts, invented a preparation, or compound or cosmetic, for beautifying the complexion, curing diseases of the skin, for shaving, cleansing the teeth, for the toilet and for the nursery, for bathing, and many medicinal purposes, and gave thereto the name of “Balm of Thousand Flowers."
Plaintiff is informed and believes, that the said De Fontaine commenced to manufacture the said preparation, or compound or cosmetic, and to vend the same, under the name of “Balm of Thousand Flowers," and was the first person who selected or used said name, and the first person who introduced said preparation or compound to the public, and continued to manufacture and vend the same, under the name aforesaid, until on or about the 14th day of October, 1854, when the plaintiff purchased from said De Fontaine the recipe for the said preparation, compound or cosmetic, and the sole right to make and vend the same, and he has ever since continued to be the sole owner thereof.
That since the said purchase by plaintiff of the right to make and vend said preparation, or compound or cosmetic, the plaintiff has been engaged in the manufacture and vending of the same, in large quantities, throughout the United States, and in particular, in the city and State of New-York.
That the said preparation, or compound or cosmetic, is, and for many years past has been, put up for sale in bottles, of an octagon shape, each holding about five ounces, and each bottle having stamped on the sides thereof the words "Balm of Thousand Flowers," with the name of the manufacturer, and his residence; upon each bottle was, and is, placed a label, printed in gilt letters upon dark blue paper, as follows:
“Balm of Thousand Flowers, for beautifying the complexion, curing diseases of the skin, shaving, cleansing the teeth, for the toilet and the nursery, and many medicinal purposes. Price 50 cents per bottle. None genuine unless signed by the proprietors, W. P. Fetridge & Co.” Schedule A, hereto annexed, is a fac-simile of such label.
That outside of each of said bottles is a paper wrapper, of a dark blue color, having printed thereon the same words as the label, heretofore referred to as being pasted on the bottle, a fac-simile of which is hereto annexed, marked schedule B. This label upon the wrapper is surrounded by a heavy gilt bordering, and surmounted by flowers, wreathed, as by reference to said schedule B will more fully and accurately appear.
Plaintiff further says, that he has used the same kind of bottles, and of labels, and the same kind of wrappers, in all respects, except as hereinafter stated, since he became the proprietor of the right to manufacture and vend said preparation or compound; but the only difference in the labels and wrappers used by him is, that upon those used by him, prior to April, 1856, are the words, “Fetridge & Co., Boston," instead fo “W. P. Fetridge & Co., New-York."
That the said preparation, or compound or cosmetic, when sold at wholesale, is put up in green paper boxes, each box containing one dozen bottles, and each box having a label thereon, of which said schedule B is a fac-simile; and the said labels on the bottles, and on the wrappers, are now well know to the trade, and to consumers, as indicating the genuine preparation, or compound or cosmetic, called “Balm of Thousand Flowers,” prepared by plaintiff's firm.
That there is nothing on the said bottles or labels, or in the name given to said preparation, or compound or cosmetic, to indicate the mode or process of manufacture of said preparation or compound, or the peculiar or relative quality thereof; but the name was a new one, and was given, and the labels were designed, to distinguish the said preparation or compound, and as a trade mark which should give to the public an assurance of its genuineness.
That by means of the good qualities of the said preparation or compound, and of the care, skill and fidelity with which the manufacture and sale thereof have been conducted, as aforesaid, the said preparation or compound has acquired a great reputation with the trade and with individuals throughout the United States, and large quantities are constantly required from plaintiff's firm to supply the regular demand, for the consumption of the country; and plaintiff, through his firms, has, at large expense, established the sale thereof to, and by the wholesale dealers, as well as retailers, in nearly all of the larger cities, towns and villages throughout the United States; and, in addition thereto, has expended and incurred over one hundred thousand dollars in advertising the same, and bringing it