
    The Porous Plaster Co. of Sing Sing, Resp’t, v. George J. Seabury, Impleaded, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1888.)
    
    1. Injunction—Punishment for a violation of—When ordered.
    In order to pnnish for a violation of an injunction, the act complained of must he clearly embraced within the inhibited act.
    
      S. Same—What does not constitute a violation of injunction.
    The judgment in a certain action enjoined the defendants from affixing or applying, or causing to be applied, any of the words mentioned therein (porous being one of said words) to any plasters manufactured, shipped, sold or supplied by them, or to the boxes in which the same were put up, and this was the extent of the prohibition. The word porous was employed by defendants thereafter in different modes of advertisements to announce the manufacture, but not to designate the plaster by name, applied or affixed, as porous plaster. Beid, that the injunction did not prohibit the use of said word in advertising. That the defendants were not guilty of contempt.
    Appeal by the defendant Seabury from an order of the special term adjuging him guilty of contempt.
    
      R. A. Pryor, for app’lt; Philo Chase, for resp’t.
   Brady, J.

The injunction granted in this case, the substance of which was embodied in the judgment entered on the 6th of January, 1875, was to the effect that the defendants, Seabury and Johnson, were enjoined from infringing the plaintiff’s trade marks, 1 ‘ Allcock’s India Rubber Porous Plasters,” and from the use of the words, “ Allcock’s India Rubber Porous,” or either of them.

They are perpetually enjoined from affixing or applying, or causing to be affixed or applied to any plasters manufactured, sold, shipped or supplied by them, or to the boxes in which the same are put up, the plaintiff’s trade mark words, viz.: Allcock’s India Rubber 'Porous, ” or either of said words, or any imitation thereof, as the whole or any part of the name or designation of such- plasters so manufactured, sold, shipped or supplied by them, said defendants, their servants, agents or either of them, and they, the said defendants, their servants, agents, and each of them, are hereby further perpetually enjoined and restrained from affixing or applying or causing to be affixed or applied to any plasters manufactured, sold, shipped or supplied by them or to the boxes in which the same are put up, any of the trade-marks, or labels described, and set forth in the plaintiff’s complaint herein, as being used by the plaintiff, or any of the trade-marks or labels described and set forth in said complaint as being used by the defendants in imitation of the plaintiff’s said trade-marks and labels; and the said defendants, their servants and agents, and each of them are further perpetually enjoined and restrained from affixing or applying or causing to be affixed or applied to any plaster manufactured, sold, shipped or supplied by them, said defendants, their servants, agents or" either of them, any trade-marks, or labels, whatever, in violation of the plaintiff’s trade marks and labels named in said complaint.

The parties stipulated for the purposes of this appeal, that the defendant Seabury had manufactured and sold certain plasters which he had advertised as follows: “Benson’s Porous Plasters; Benson’s Oapcine Porous Plasters, Benson’s Plasters, the best Porous Plaster,” in newspapers, cards, circulars, catalogues, etc., and it is for this supposed violation of the injunction, and this only, that the defendants were proceeded against.

In the view that is taken of this appeal it will not be necessary to consider, in detail, any other question than that arising from the use made of the word porous in the mode suggested. It may be assumed that all the preliminaries necessary to put the defendants upon their defense have been fully complied with. There is no pretense that the use of the prohibited words have been employed in any other way than in the modes of advertisement already mentioned, and, therefore, that none of them was applied or affixed to the plasters or any of them, or boxes or wrappers containing or covering them.

The judgment enjoins the defendants as we have seen from affixing or applying or causing to be applied any of the words mentioned, to any plasters manufactured, shipped, sold or supplied by them or to the boxes in which the same are put up, and this seems to be the extent of the prohibition, although repeated and in different forms, in the judgment. It embraces an application or affixing to the plasters or labels upon them, or the appliances in which they may be sold, boxes or wrappers, so that the plaster shall not be immediately identified with the word prohibited, and thus in the purchase or sale or wrapping or boxing up or delivering, be held out as a plaster like or in imitation of the plaintiff, and that is all the pleader had in contemplation when the judgment was prepared. Indeed it may be doubtful whether if the prohibition against advertising were asked as a part of the judgment it would have been inserted. The devices by which attention might be drawn to a plaster porous in fact, and so seem to be on exhibition, although no such designation then and there appeared, were not anticipated, or if thought of, were not included in the judgment or provided against. It seems to be well settled that in order to punish for a violation of an injunction, the act complained of must be clearly embraced within the inhibited acts. German Savings Bank v. Habel, 58 How., 336.

It has been said: “As the defendant is bound to obey the process of the court at his peril, the language of the injunction should be so clear and explicit that an unlearned man can understand its meaning without the necessity of employing counsel to save him from subjecting himself to punishment for a breach of the injunction. Laurie v, Laurie, 9 Paige, 235; Sullivan v. Judah, 4 id., 444. And again, that to sustain a proceeding for contempt, the order should be clear and explicit in its terms. Re Cary, 10 Fed. Rep., 625-6. And also that a writ of injunction ought to be sufficiently explicit upon its face, by defining the. property or matter enjoined, so that a party may be clearly advised of what he is not to do. Moat v. Holbein, 2 Edw. Ch., 188; Clark v. Clark, 25 Barb., 76.

And further, that if the order disobeyed be capable of a construction consistent with the innocence of the party of any intentional disrespect to the court an attachment should not be granted. Weeks v. Smith,3 Abb. P. R , 211. And again “the injunction must clearly specify all the acts which the defendant is restrained from doing, and the circumstance of the vagueness of the injunction is to be taken into consideration in any proceedings to punish a defendant for the violation of its provisions. Lyon v. Botchford, 25 Hun, 58.

Applying these principles, the order appealed from cannot be sustained, inasmuch as it does not clearly appear that the use of the words mentioned or any of them in advertising was prohibited. The effect of such a procedure is to announce the manufacture but not to designate the plaster, by name applied or affixed, a porous plaster.

For these reasons the order appealed from is reversed, but without costs.

Van Brunt, P. J., and Daniels, J., concur.  