
    John Jameson & Son, Ltd., Appellant, v. John Reilly, Respondent.
    (Supreme Court, Appellate Term, First Department,
    May, 1915.)
    General Business Law, § 367 — refilling bottles bearing trade-mark — action to recover penalty — pleading.
    In an action to recover a penalty for the violation prescribed by section 367 of the General Business Law for filling any bottle of the kind described therein with, or selling or offering to sell therefrom, any article or substance other than the original contents, the complaint need not allege a publication of the description, specimen or facsimile of the trade-mark or label or other private mark as provided in said section.
    Appeal by plaintiff from a judgment dismissing the complaint at the opening of the trial in the Municipal Court of the city of New York, borough of Manhattan, first district, on the ground that the. complaint failed to set forth facts sufficient to constitute a cause of action.
    Kiernan & Moore (Maurice J. Moore, of counsel), for appellant.
    Winslow, Keenan & Budd (H. Irwin Keenan, of counsel), for respondent.
   Pendleton, J.

The action is brought to recover the penalty of $100 for each violation prescribed by section 367 of the General Business Law for refilling bottles; that is, for putting or placing in a bottle of the kind described, and selling or offering to sell therefrom, a substance other than the original contents placed therein by plaintiff. The complaint failed to allege a publication of the description, specimen or facsimile of the trade-mark or label or other private mark, as provided in that section, and the complaint was, therefore, dismissed.

This was error. The statute provides penalties in three classes of cases:

(1) For filling any bottle with, etc., or selling, or offering to sell therefrom, any article or substance other than the original contents.

(2) For removing, defacing or obliterating any brand, trade-mark, etc., impressed, stamped or blown into the substance of the vessel or receptacle.

(3) For using, trafficking, etc., or refusing to return any vessel, etc., branded or stamped, etc.

In the first case publication is not required. In the last two it is. This case belongs to the first class, and publication was not required. In Haslinghuis v. Hencken, Harren & Co., 143 N. Y. Supp. 1094, this question was apparently not considered.

Guy and Bijur, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  