
    In the Matter of the Application of Frank J. Zimmerman, Respondent, to Punish Walter J. Meighan and Henry M. Larson, Appellants, for Contempt of Court in Violating an Injunction Granted in the Action of Arthur H. Cross, Doing Business Under the Name of W. H. Cross, Plaintiff, v. Joseph Zima, Doing Business under the Firm Name and Style of Supremo Chemical Company, Defendant.
    Second Department,
    November 19, 1909.
    Contempt — violation of injunction toy third persons.
    Although an injunction has issued restraining a certain person, his representatives, assigns and agents, from imitating a certain trade label, other persons not served with a certified copy of the decree and not shown to be acting for or with the defendant cannot be punished for contempt for using a similar label.
    Appeal by Walter J. Meighan and another from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on- the 24th day of July, 1909, adjudging the appellants guilty of contempt of court and imposing upon each a fine of fifty dollars.
    
      Herbert Peake, for the appellants.
    
      Frederick B. Maerkle, for the relator.
   Woodward, J.:

Prior to April 1, 1909, one Arthur H. Cross, doing business as W. H. Cross, was engaged in manufacturing and placing upon the the market a bug exterminator. One Joseph Zima was at the same time engaged in a like enterprise, nrider the name of the Supremo Chemical Company. On or about the date mentioned, Cross brought an action against Zima, sole defendant, for the purpose of restraining the latter from imitating the style of package used by Cross. Zima put in an answer,' but went out of business soon afterward and abandoned the defense, the result being that a judgment was entered restraining Zima, his executors, administrators, successors or assigns, and his clerks, servants, agents, consignees or dealers, from using the word “ Success ” or “ Success Bug Exterminator,” etc. On or about March 25, 1909, several months after Zima had abandoned the exterminator business, and a month or more after the granting of the injunction above recited, Walter J. Meighan and Henry .M. Larson, the appellants herein, entered into the business of making and selling a bug exterminator under the trade name of the Supremo Specialty Company at No. 483 Gates avenue, Brooklyn, and used a label for their product, which in some measure resembled that involved in the injunction in the action of Cross against Zima. About J une 1, 1909, one Frank J. Zimmerman, claiming to be the successor of Arthur H. Cross, instituted this proceeding to punish Meighan and Larson for contempt of court for violating the provisions of the injunction granted in the action above mentioned, which resulted in the order appealed from, which imposed a fine of fifty dollars upon each of them.

There is nothing in the papers before this court to show that either Meighan or Larson are the agents or servants of Zima, or that they are acting or pretending to act for or with him in this transaction, or that they have any relation to him whatever. Neither is there anything to show that a certified copy of the injunction has ever been served upon either of them, or that Larson has ever had any notice whatever of the existence of the judgment, while in the case of Meighan the only thing to connect him with the injunction is the alleged fact that a circular was sent to him at the address of Zima, telling him of the existence of such an injunction order. Under such circumstances there is no jurisdiction in the court to punish these men as for a contempt of court. The rule is laid down in Spelling on Injunctions (Vol. 2 [2d ed.], p. 956) that “One not a party to a suit in which an injunction has issued, nor an agent of such party, and to whom such injunction is not,directed, cannot be held in contempt, or be punished for the violation of the writ, although the act prohibited be illegal in itself,” and in Batterman v. Finn (32 How. Pr. 501) it is said that to make a person not a party to the action liable for disobeying an injunction the person should bear such a relation to the defendant as to enable the latterto control his conduct. It was held in that case that the lessees of the defendant who had been enjoined from interfering with a water power could not be punished for violating that injunction, it not appearing that they were acting in conspiracy or collusion with the defendant. In Walton v. Grand Belt Copper Co. (56 Hun, 211) it was held that an injunction could issue only against a party to the action, and the same doctrine was held in Marty v. Marty (66 App. Div. 527), while in People ex rel. Morris v. Randall (73 N. Y. 416) Battermam v. Finn (supra) was quoted with approval, and it was held that a stranger to the restraining orders of the court was in no way affected by or bound to obey them. The authorities were fully reviewed in the comparatively recent case of Rigas v. Livingston (178 N. Y. 20), and the court there held that the rule as above quoted was still the law of this State.

The order appealed from should be reversed, with ten dollars costs and disbursements.

Jenks, Burr, Rich and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  