
    Eugene Guilhon et al., Plaintiffs and Respondents, v. Santiago Lindo, (who was impleaded with another,) Defendant and Appellant.
    1. In an action brought to enjoin the defendants from infringing plaintiffs’ trade mark, an answer alleging that the defendants had sold only a very small and specified quantity of merchandise bearing the label complained of, and that the same was sold to the plaintiffs’ agent at their request, and that the use of the label was accidental, without intent to defraud plaintiffs or imitate their label, and did not represent the article to be the plaintiffs’, is not frivolous.
    2. In action of this nature the judgment cannot direct the damages to be assessed by a Sheriff’s Jury. The proofs must be taken by the Court or a Referee.
    3. Where, in such a case, judgment is ordered for frivolousness of defendant’s pleadings, the judgment should either be in the form proper where nothing is left to be ascertained but the amount of damages, or it should simply adjudge the pleading frivolous and leav| the plaintiff to apply to the Court for the relief he seeks.
    Before all the Justices.)
    Submitted, April 28, 1862;
    decided, May 10, 1862.
    This action, as is stated in the foregoing report of another appeal therein, was brought to restrain the infringement of a trade mark adopted by the plaintiffs in the sale of wine.
    The complaint charged that the defendant, Santiago Lindo, fraudulently put up and offered for sale, and now offers for sale under the name and trade marks of the plaintiffs’, an article in imitation of the St. Julien Claret Wine of the plaintiffs’, with intent to deceive and defraud the public, and the buyers and consumers thereof, &c., under the belief that it is the genuine wine or liquor of the plaintiffs’, to their great injury, and that their profits have been greatly diminished, if not destroyed. The demand for relief was for an injunction, and 5,000 dollars damages.
    To the above charges, Santiago Lindo answered, that at the commencement of the action he had sold only two boxes of wine, containing 24 bottles, and that to the plaintiffs’ agents, Valerio & Fassin, at their request, and that the use of the said , label was purely incidental and accidental, and caused by a third party, without any intent or knowledge of defendant to injure or defraud the plaintiffs, or to imitate or counterfeit their said label, and did not represent said wine or said label to be the plaintiffs’. The answer also denied that the plaintiffs have sustained the damages alleged under their said complaint, or any damage whatever, and alleges that since the commencement of this action, defendant has wholly discontinued the use of the said label.
    The answer further stated that defendant did not know that any such persons as plaintiffs exist, and that the plaintiffs’ agent named in the complaint had not any legal power or authority to commence this present action.
    The plaintiffs moved for judgment on the answer as frivolous; and the motion was heard at Special Term, before Mr. Justice White, ^on the 27th of February, 1862, and granted. The order entered, directed plaintiffs’ damages to be assessed by a Sheriff’s Jury. The defendant appealed from the order to the General Term.
    
      John Cook, for defendant, appellant,
    insisted that the denials in the answer took material issues, which defendant had a right to raise; and that the allegations as to plaintiffs being fictitious persons, or the suit being brought without authority, were sufficient; or, if not, that the answer was not frivolous, but the remedy was a demurrer, or a motion to- strike out; and that the issues should-be tried, and not sent before a Sheriff’s Jury to assess-damages.
    
      H. D. Sedgwick, for plaintiffs,-respondents.
    I. The? questions as to the existence of the plaintiff, and’ the authority for bringing this suit, are not properly pleaded, do not relate to the cause of action, and raise no issue, in form or in fact.
    II. The answer admits- the plaintiffs’ cause of action against him. (Code, §§ 2, 218, 219, 220; Williams v. John
      
      son, 2 Bosw., 1; Amoskeag Man. Co. v. Spear, 2 Sandf. Ch., 603, 611; Coats v. Holbrook, Id., 586; Taylor v. Carpenter, 11 Paige, 293; Partridge v. Menck, 2 Barb. Ch., 101; Clark r. Clark, 25 Barb., 76; Gillott v. Kettle, 3 Duer, 624; Lemoine v. Gauton, 2 E. D. Smith, 343; Dale v. Smithson, 12 Abbotts’ Pr., 237; Blofeld v. Payne, 4 Barn. & Adol., 410; 24 E. C. L. R., 87; Davis v. Kendall, 2 R. I. R., 566.)
    2. The only defense suggested by the answer is matter going in mitigation of damages. Such matter does not enter into the cause of action, is not traversable, and (except by statute in the case of actions of slander, [Code, § 165,]) never raises an issue in the cause. It should be tried by a Sheriff’s Jury, which is the proper tribunal for the computation and assessment of damages.
    The order for judgment on account of the frivolousness of the answer, and directing the plaintiffs’ damages to be so assessed, was, therefore, right, and should be affirmed with costs. (Code, §§ 168, 149, 247; Bates v. Loomis, 5 Wend., 134; Gilbert v. Rounds, 14 How. Pr., 47; Lane v. Gilbert, 9 Id., 150; Saltus v. Kipp, 5 Duer, 646; Rosenthal v. Brush, 1 Code R., [N. S.,] 228; Connoss v. Meir, 2 E. D. Smith, 314; Hackett v. Richards, 3 E. D. Smith, 13.)
    II. That a portion of the relief claimed is equitable does not affect the question. Ho distinction exists under the Code as to the procedure in reference to an insufficient answer, whether the cause of action is legal or equitable. Ho exception is made. (Code, Preamble, and § 247.)
    And the rule was similar in equity. (Story’s Eq. Pleadings, §§ 852, 649.)
    The disposition of the issue, as to each defendant is, or may be, separate, although there can be but one final decree in the cause, which will be settled and entered after the issues are severally disposed of.
   By the Court — Bosworth, Ch. J.

Is the answer frivolous ?

It avers that, up to the time this suit was brought, only two boxes of wine (of 24 bottles each) had been sold, and that these were sold to the plaintiffs’ agent, at their request; that the use of the label was accidental, “ without any intent or knowledge of this defendant to injure or defraud the plaintiffs, or to imitate or counterfeit their said label, and did not represent the wine or the label to be that of the plaintiffs.”

This denies all fraudulent intent, and, if true, is substantially an answer to the' claim for damages. These allegations, if true, are material on the question of costs.

That part of the order which directs the damages to be assessed by a Jury is clearly wrong. (Oode, § 246, sub. 2.) The proofs must be taken by the Oourt, or a reference be ordered. (Id.) It is not an action to recover money only, or specific real or personal property with damages for withholding it, nor is the examination of a long account involved. It is only in these actions that damages can be assessed by a Sheriff’s Jury. (Id.)

The Oourt should either have pronounced the proper judgment, leaving’ nothing to be ascertained but the amount of the damages; or else it should have simply adjudged the answer frivolous, and then left the plaintiff to apply for the relief demanded by the complaint, as prescribed by section 269 of the Oode. (12 How. Pr., 342.)

Order reversed.  