
    FREDERICK C. LINDE and others, Appellants, v. JOSEPH McJ. BENSEL and others, Respondents.
    
      Complaint in an action to restrain the me of a trade-ma/rk — when it states facte sufficient to constitute a cause of action.
    
    Appeal from a judgment entered at Special Term, dismissing the complaint herein upon the pleadings and the opening of counsel ; and also from an order granting an additional allowance.
    The court at Special Term said : “ There is ho finding of facts, or conclusions of law, by the court below in this case. No part of the opening of counsel is given. The dismissal of the complaint must, therefore, be regarded as made upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because we must assume that the counsel, in his opening, stated substantially the same facts alleged in the complaint. On carefully examining the complaint,-we are of the opinion that this ground cannot be sustained. The complaint alleges that the defendants wrongfully printed and used, and continued -to- use tobáceo sample tickets in imitation of the plaintiffs’ tobacco sample tickets, with intent to defraud and deceive the public and buyers and dealers in tobacco ; and that said false tobacco sample ticket is calculated to'deceive producers and dealers in tobacco, and actually has, and still does mislead many of. them to buy tobacco sampled by the defendants, as tobacco sampled by the plaintiffs, greatly to the damage and prejudice of the plaintiffs.
    “ If these allegations, taken in connection with the allegation of ownership of the sample ticket in the plaintiffs, and of the wrongful use of the similitude or imitation thereof by. the defendants, had been proved on the trial, they would, if unanswered in any form, have entitled the plaintiffs to a recovery of some damages, or to some relief. , It is not necessary for us to determine whether the plaintiffs would or would not probably have succeeded in their action upon the trial; They were entitled to put- in .their evidence tending to establish these various facts; and, if they had shown evidence fully sustaining the allegations of their complaint, they would have made at least a prima facie cause of action that called for the consideration of the court, and for some answer or defense on the part of' the defendants. ' '
    “We think'the court below erred in' its summary disposition of the case upon either of the grounds suggested by the learned counsel, and for that reason we must reverse the judgment and order a new trial, with costs to abide the event.”
    
      Edward S. Clinch, for the appellants.
    
      W. W. Goodrich, for the respondents.
   Opinion

Pee Curiam.

Present — Davis, P. J., Brady and Barrett, JJ.

Judgment reversed, new trial ordered; costs to abide event.  