
    FABER against D’UTASSEY.
    
      Superior Court, First District;
    
    
      Special Term, April, 1871.
    Frivolous Pleading.—Answer in Trademark Case.
    In an action for damages for infringement of trademark, an answer denying knowledge of plaintiff’s ownership of the trademark, and any intention to do wrong, and averring a single sale of the simulated article, is not frivolous; these allegations being important on the question of damages.
    Eberhard Faber brought this action against Frederick George D’Utassey and Henry T. Bragg, for damages for the infringement of a trademark; and on the separate answer of the defendant Bragg, as being frivolous, moved for judgment against him.
    
      John S. Washburn, for the plaintiff.
    
      A. H. Dana, for the defendants.
   Brady, J.

The answer in this case is not frivolous. It denies knowledge and information sufficient to form a belief whether the plaintiff is the owner of the trademark claimed. • It avers a single sale of the simulated pencils, and that to the plaintiff or his agent, denies any intention to do wrong, averring the receipt of the pencils sold from abroad without having ordered'them. These averments are important to the plaintiff on the question of damages, assuming that they do not constitute any defense.

If the plaintiff is satisfied that the defendant’s statements are true, it seems to me this litigation may be arrested at once, on his stipulating not to sell any other of the simulated articles, which I think, from the answer, he would be willing to make; but if the plaintiff be not satisfied, the action must of course proceed. This being an equity case, I have taken the liberty to make the suggestion herein contained.  