
    Prince Manuf’g Co. v. Prince’s Metallic Paint Co.
    
    
      (Supreme Court, General Term, First Department.
    
    January 28, 1889.)
    1. Injunction—Against Non-Residents—Violation—Power of Punishment.
    When the court, in a suit between non-residents to prevent the use of trade-marks, acquires jurisdiction of the parties and the subject-matter, and issues an injunction restraining defendant from using the trade-mark as long as the injunction exists, the court has jurisdiction to punish defendant for violating the same.
    2. Trade-Mark—Injunction—Extraterritorial Effect.
    An injunction granted in New York, restraining defendants from using “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 plaintiff to the use of the designation ‘ Prince’s Metallic Paint,’ ” is violated by affixing such name to cars of paint at Lehigh Gap, Pa.
    8. Same—Necessary Averments.
    It is not necessary to insert in the injunction a declaration that the conduct of defendant is such as to defeat, impair, impede, or prejudice a right or remedy of plaintiff. If the papers on which the injunction is granted contain facts showing that such would be the result, it is sufficient, and it is not necessary to recite the words of the statute iysissimis verbis.
    
    Appeal from special term, Yew York county.
    Action by the Prince Manufacturing Company against Prince’s Metallic Paint Company to prevent the use of a trade-mark. Prom an order adjudging defendant guilty of contempt, in violating a preliminary injunction, defendant appeals.
    Argued before Van Brunt, P. J., and Brady and Macomber, JJ.
    
      John Franltenheimer, for appellant. J. Davenport, for respondent.
    
      
       Affirming 2 N. Y. Supp. 682.
    
   Brady, J.

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, if. 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 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 acknowledgment practice in courts of equity. This power has been exercised for more than 200 years. Manufacturing Co. v. Worster, 23 N. H. 462. See, also, 2 Wait, 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. The power to be thus employed is kindred to that by which the 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 Porous Plaster Co. v. Seabury, 1 N. Y. Supp. 134, 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.

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 ease of Fischer v. Langbein, 103 N. Y. 84, 8 N. E. Rep. 251, where it was decided that, if the papers upon which the order 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 verbis. The order should be affirmed, with $10 costs and disbursements. All concur.  