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into use, and has been reaping large gains and profits from the sale thereof.
Plaintiff further shows, that while prosecuting the making and vending of said “Balm of Thousand Flowers," he has recently discovered that the defendant, Marvin J. Merchant, and the other defendants, whose names he does not know, but who are above designated as John Doe and Richard Roe, designing and intending, as he is informed and believes, to procure the custom and trade of persons who are in the habit of dealing in, and of persons who are in the habit of using or vending, the plaintiff's “Balm of Thousand Flowers,” and to induce the public to suppose and believe that they are vending the “Balm of Thousand Flowers,” are now extensively engaged in making and selling, and offering for sale, a preparation or compound under the name of “Balm of X Thousand Flowers,” which they have put up, for sale, in bottles of the same size and shape as those used by plaintiff, and stamped and marked so as to resemble the preparation or compound of the plaintiff, and which he is engaged in making and vending, as aforesaid, and had been engaged in making and vending, long before the defendants commenced their fraudulent imitation thereof. That the words, “Balm of Thousand Flowers,” are printed in a very conspicuous manner, and the X is so printed that few persons, desiring to purchase the “Balm of Thousand Flowers,” would observe the X, or understand its meaning.
That plaintiff has obtained specimens of the bottles and labels and boxes used by the defendants. That the labels and wrappers and boxes are of the same colored
paper the plaintiff has long used, and the ink used is also of the same color. The bottles have upon them the same stamp, except that, before the word “Thousand,” is an “X,” and the pame “Merchant's" is substituted for “Fetridge & Co."
That schedule C, hereto annexed, is a fac similie of the wrapper used by the defendants, and of the label upon the boxes; and the label upon the bottles contains the same words as are inclosed within the gilt bordering which is on the said wrapper, and are printed in the same style.
That the general appearance of the said spurious article -the bottles, labels, wrappers and boxes—is well calculated to deceive those dealing in the purchase and sale thereof; and the plaintiff alleges and insists, that the said spurious article, so sold and offered for sale by the defendants, can only be distinguished from the plaintiff's genuine preparation by a close examination of the label, and a more close examination than consumers will generally bestow.
That the plaintiff has not been able to ascertain the extent to which the defendants have carried their fraudulent imitation of his said “Balm of Thousand Flowers,” but he has found the same offered for sale in several stores and places, and he is informed and believes it is now being daily sold for lower prices than the plaintiff is and has been selling his said “Balm of Thousand Flowers."
Plaintiff alleges, that the fraudulent and inequitable conduct of the defendants, as aforesaid, is greatly injuring the plaintiff in the sale of his genuine “Balm of Thousand Flowers," and the profits which he would otherwise reasonably make thereon; and he charges and insists, that the spurious article, so sold and offered for sale by the defendants, is a fraud and deception upon such of the citizens of New-York, and of the United States, as purchase the same, believing it to be the same article as is manufactured by the plaintiff or his firm.
Wherefore the plaintiff demands judgment, that the defendants, and each of them, and their and each of their attorneys, solicitors, counselors, agents and servants, may be enjoined and restrained from selling, or offering for sale, directly or indirectly, any preparation or compound manufactured by them, or either of them, or by any other person or persons than the plaintiff, or the firm of W. P. Fetridge & Co., having upon the bottles, labels or boxes, the words “Balm of Thousand Flowers,” or “ Balm of X Thousand Flowers,” or having or using any label or wrapper, printing, or device thereon, in such manner as to be a colorable imitation of those used by the plaintiff, or the firm of "W. P. Fetridge & Co.,” to designate or distinguish the plaintiff's preparation or compound, usually known as “ Balm of Thousand Flowers," as, in this complaint, is hereinbefore more particularly stated; and that, pending this action, an injunction order may be granted, restraining the defendants, their attorneys, solicitors, counselors, agents and servants, as above demanded, and that the defendants may be adjudged to account to the plaintiff for all profits which they have made by the sale of said fraudulent imitation of the plaintiff's preparation or compound, and all profits which the plaintiff would have made on the sale of his genuine preparation or compound, known as “Balm of Thousand Flowers,” but for the defendants aforesaid selling, and offering for sale, the preparation, with the simulated bottles, labels and boxes, and that the plaintiff may have such other relief or such further relief in the premises as may be just and equitable. BROWN, HALL & VANDERPOEL,
To restrain foreclosure sale, and to declare mortgage, under
which defendant is proceeding, not a lien on the premises, and null and void.
SUPREME COURT-RENSSELAER COUNTY.
Michael Warner and Hiram Drum
The plaintiffs complain of the defendant, and allege the following facts, constituting their cause of action : That, on and before the 19th day of January, 1850, one Asa B. Neligar was the owner, and in possession, of a certain lot or piece of land, situate in the village of Bath, county of Rensselaer, and bounded and described as follows, to wit: [Insert description of premises.]
That by virtue of two writs of fieri facias, issued out. of, and under the seal of, the Rensselaer county court, one in favor of John Foyle, against the said Asa B. Neligar, on a judgment for $29.39, damages and costs, duly given or made1 by Henry Goodrich, a justice of the peace, of Rensselaer county, and docketed, in the clerk's office of said county, April 8th, 1847; and one in favor of Michael Warner, against said Neligar, on a judgment duly given or made by L. Cornell, a justice of the peace, of Albany county, on the 15th February, 1848, for $34.46, damages and costs, and docketed in said county of Albany, and a
This allegation is sufficient, by the Code, in pleading a judgment of a court of limited jurisdiction. (Code, g 162; Pleadings, p. 271.) But the judgment must be pleaded, in the language of the Code, as having been “duly given or made.” (Hunt v. Dutcher, 13 How., 539.)
duly certified transcript thereof, subsequently filed and docketed in said county of Rensselaer, to wit, on the 21st February, 1848, which said writs of fieri facias were directed and delivered to the said sheriff of Rensselaer county, commanding him that, of the goods and chattels of said Asa B. Neligar, in his county, he should cause to be made certain moneys in the said writs specified ; and if sufficient goods and chattels could not be found, then that he should cause the amount of such judgments to be made of the lands, tenements, real estate and chattels real, whereof the said Neligar was seized at a certain time in the said writs mentioned, to wit, the time of docketing said transcripts in said county of Rensselaer, or at any time thereafter.
That the said sheriff, not finding sufficient goods and chattels to satisfy said judgments, or either of them, did, in obedience to the command of said writs, levy on all the estate, right, title and interest of the said Neligar, of, in and to the premises above described, he, the said Neligar, being then the owner and in possession thereof.
That such proceedings were thereupon had, that afterwards, to wit, on the 19th day of January, 1850, the said sheriff did sell the said premises at public vendue, at the public house of Simeon Lodewick, in the town of Greenbush, in said county of Rensselaer, he having first given due public notice of the time and place of sale, by advertising the same according to law; and that at such sale the said premises were struck off to the plaintiffs, Michael Warner and Hiram Drum, for the sum of eighty-four dollars, they being the highest bidders, and that being the highest sum bid for the same. Whereupon, the said sheriff, after receiving from the said purchasers the amount of the purchase money so bid, gave to each of them his certificate of sale, as enacted and required by law to be