
    The People of the State of New York, Respondent, v. Paul T. Krivitzky, Appellant, Impleaded with Henry Gluckman, Defendant.
    
      Counterfeit labels—comiction of one who acts under the unauthorized direction of cm agent of the owner—when the allowance of a demurrer to an information is not a ba/r.
    
    Where'a person knowingly prints counterfeit labels, the fact that he does so at the request of a special agent of the owner of the label, who has no authority to cause genuine labels to be printed, from plates furnished by such agent, does not prevent his being convicted of the crime of knowingly and falsely making or counterfeiting a trade mark in violation of section 364 of the Penal Code.
    Assuming that section 327 of the Code of Criminal Procedure, relating to the effect of the allowance of a demurrer to an indictment, applies to an information in the Court of Special Sessions of the city of New York, the allowance of a demurrer to an information in that court on the ground that it does not charge an offense is not a bar to another prosecution for the same offense where the court, in sustaining the demurrer, granted leave to resubmit.
    
      Qumre, whether section 327 of the Code of Criminal Procedure does apply to an information.
    Van Brunt, P. J., and O’Brien, J., dissented.
    Appeal by the defendant, Paul T, Krivitzky, from a judgment of the Court of Special Sessions of the city of Hew York in favor of the plaintiff, rendered on the 3d day of January, 1900, convicting the said defendant of the crime of falsely making and counterfeiting a trade mark contrary to the provisions of section 364 of the Penal Code.
    
      J. A. Seidman, for the appellant.
    
      Charles E. Le Barbier, for the respondent.
   Ingraham, J.:

The appellant was convicted of a violation of subdivision 1 of section 364 of the Penal Code, which provides that a person who knowingly and falsely makes or counterfeits a trade mark is guilty of a misdemeanor. Section 366 of the Penal Code defines a trade mark as a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person or corporation, or any letter, word, device, emblem, figure, seal, stamp, * * * label or other mark, lawfully adopted by him, and usually affixed to an article of merchandise to denote that the same was imported, manufactured, produced, sold, compounded, bottled, packed or otherwise prepared by him.” The complaint upon which this conviction was had was made before' a justice at the Court of Special Sessions sitting as a magistrate, and upon this' information the appellant was examined before the magistrate according to law. He was then tried before the Court of Special Sessions and convicted and sentenced to pay a fine of $500. Upon the trial counsel for the appellant moved to dismiss the complaint and for the acquittal of the appellant, on the ground that the complaint does not state facts sufficient to constitute a crime. That motion was denied, to which there was an exception.

We think that this complaint was clearly sufficient to bring the case within the provisions of this section of the Penal Code, and that motion was properly denied.

Upon the trial the complainant was sworn and testified that he' was a special agent for Martell & Hennessy; that he made an arrangement with the defendant whereby the defendant was to print labels in imitation of the labels of the Martell & Hennessy brandy; that Gluckman made the plates from which the labels Were to be printed, which were delivered to the appellant; that in pursuance of this agreement the appellant printed 5,000 of the said labels and delivered them to the complainant, for which the complainant paid him $62. The witness also testified that he was familiar with the labels of the Martell brandy; that he was in the employ of the proprietors of the brandy and had seen these labels used upon brandy imported from France purporting to be bottled by Martell & Hennessy. Mr. Pinlcofi was called as a witness and testified that he was acquainted with the firm of Martell & Co., and that their place of business is at Cognac, France, and that the firm is composed of Edward Martell, Reno Fereno a-nd Richard Harrison; that he visited this firm at their place of business in Cognac, France, went through their works there, saw the place where the brandy was bottled, saw these labels put on the bottles, and was familiar with the goods; that the label was thé uniform label used by this firm of Martell & Co. during the year and a half prior to the trial; that he saw this identical label used by the firm of Martell & Oo. put on the bottles of Martell & Co. subsequently brought here, and that he received from the agent in this, country of Martell & Co. several of the original labels; that the label which was annexed to the complaint was the identical label which the witness saw affixed in France to a bottle, which bottle was put in a case and addressed to parties in America, and that the witness had also seen this identical label on the same goods in the office of the agent of Martell & Co. in Few York. Miller, the complainant, also testified that when the appellant was asked to counterfeit these labels he said that he would print them; that he had to do the jobs on Sqndays or nights; that he did not want to run any chance to be caught • that he would have to do the work either Sunday or at night, because if he did it in the day time some one might walk in and catch him; that he had made the charge that he did because it was dangerous work to print these labels. The appellant was called as a witness in his own behalf and testified that he never printed these labels and never had anything to do with the complainant.

We think this conviction was proper and should be sustained. The fact that the label which the appellant counterfeited was used by Martell & Co. upon the bottles containing their brandy which was imported into the United States and sold here, was proved. This was evidence of a practical adoption of this label as a trade mark used to indicate the maker, owner or seller of this article of merchandise. It thus brought this label within the definition of a trade mark as contained, in section 366 of the Penal Code. It was the label of Martell & Co. which they used upon their brandy to indicate that it was manufactured and sold by them. It was the label as a whole that was used as the trade mark of Martell & Co., and it was this label as a whole that the appellant counterfeited. It was sufficient to show that this label was appropriated and used by the firm of Martell & Co. upon their goods, manufactured and sold by them, to indicate that they were the manufacturers and sellers ; and that was shown by the fact that Martell & Co. did put this label upon their goods, and that goods with this label were sent by them to this country for sale. We think, therefore, that the crime charged was proved, and that the appellant was properly Convicted.

It is urged, however, that the appellant could not be said to counterfeit this label, because he was requested to print it from a plate furnished by an agent of the owner of the trade mark, and that although he understood that he was counterfeiting the label and intended to counterfeit it, he in fact printed it for an agent of the owner, who had the right, to have it printed. By the statute, a person who “ falsely makes of counterfeits a trade-mark ” is guilty of a misdemeanor. This, complainant was not authorized to have these labels printed for Martell & Go. and did not employ the appellant to print them for that firm. The appellant was asked to print a false or counterfeit trade mark, and it was that which he did., The real label was prepared in France, put upon the bottles in France, and could only be made in this country fraudulently. Martell & Go., who own .the trade mark, never, so far as appears, authorized any one to have these labels printed in this country; and, without such authority, any one who printed them here did “ falsely make-or counterfeit ” their trade mark ; and it was just this that the appellant did. The complainant described himself as a special agent or investigator for the Martell & Hennessy brandy people, but there is no evidence that he had any authority to have genuine labels printed; and the appellant agreed to print, not genuine labels, but imitation labels, and it was this that he did, and thereby he falsely made or counterfeited the trade mark and was guilty of the offense charged.

The appellant also claims that the allowance of the demurrer to a former complaint barred all further prosecution for the same offense. It appeared that, prior to the institution of this proceeding, the defendant was arrested upon a charge made by the complainant. To this charge the appellant demurred, which demurrer Was sustained. The judgment sustaining the demurrer, however, allowed leave to resubmit. In pursuance of this leave, the complaint upon which this conviction was had was submitted to a magistrate, and upon this charge the appellant was arrested. The first charge is' so indefinite that it is impossible to say that it relates to the' same charge as that upon which the appellant was convicted, but if it be held that it was intended to charge the same offense, the allowance of the demurrer showed that the charge as first made.did not charge an offense, and as it failed to do so it could not be a bar, in the absence of some legislative prohibition, to a complaint which did charge an offense. The appellant claims, however, that under the provisions of the Code of Criminal Procedure — made applicable to proceedings before the Court of Special Sessions by section 1407 of the Hew York charter (Laws of 1897, chap. 378) — the allowance of a demurrer is a bar to another prosecution for the same offense. By section 327 of the Code of Criminal Procedure it is provided that upon the allowance of a demurrer to an indictment the judgment is final upon the indictment demurred to, and is a bar to another prosecution for the same offense unless the court, being of the opinion that the objection on which the demurrer is allowed may be avoided in a new indictment, direct the case to be resubmitted to the same or another grand jury. It is quite doubtful whether this can apply to a criminal information where there is no indictment. The provision of the Hew York charter (§ 1407) that “ all sections of the code of criminal procedure consistent with this act, regulating and controlling the practice and procedure of the court of general sessions of the peace in the city and'county of Hew York, shall apply as far as may be to the practice and procedure in the said courts of special sessions,” could only apply where the practice is the same in both courts, and as the Court of Special Sessions proceeds upon an information and not upon an indictment, the provisions of the Code of Criminal Procedure in relation to indictments are evidently not applicable. The allowance of a demurrer to an information is entirely distinct from an allowance of a demurrer to an indictment, and the provisions as to the effect of an allowance of á demurrer to an indictment could not apply to the allowance of a demurrer to an information. But assuming that an information in the Court of Special Sessions took the place of an indictment in the Court of General Sessions and that the provisions relating to an indictment applied, then the provision that the allowance of a demurrer to the charge is a bar to the subsequent proceeding must be taken in connection with the subsequent provision of the section which allows the court to direct the case to be resubmitted, and as the court in allowing the demurrer to the first charge gave leave to resubmit as part of its judgment allowing the demurrer, the allowance of the demurrer was not a bar to a further prosecution of the offense.

Upon the whole ease we think this appellant was cleai'ly guilty, was properly convicted, and that the judgment appealed from should be affirmed.

Bumset and Hatch, JJ., concurred; Van Brunt, P. J., and O’Brien, J., dissented.

Judgment affirmed.  