
    People v. Elfenbein.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 21, 1892.)
    Trade-Marks—Devices on Bottles—Criminal Prosecution.
    Using bottles having pasted thereon a lithographed label containing the name of the original owner is not a violation of Laws 1887, o. 377, § 2, as amended by Laws 1888, e. 181, which makes it unlawful for any person or corporation to use, without the owner’s consent, the bottles, boxes, etc., of another, with the owner’s name or other “marks or devices branded, stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, ” etc.
    Appeal from court of sessions, Erie county.
    Moses Elfenbein was.convicted of a violation of Laws 1887, c. 377, as amended by Laws 1888, c. 181, entitled “An act to protect the owners of bottles, boxes, syphons, and kegs used in the sale of soda water, mineral or areated waters, porter, ale, eider, ginger ale, milk, cream, small beer, lager beer, weiss beer, beer, white beer, or other beverages.” Defendant appeals. Be-versed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      Emory P. Close, for appellant. Tracy C. Becker, for respondent.
   Macomber, J.

The appellant was convicted before the police justice of the city of Buffalo on the 9th day of April, 1892, for violation of the above-mentioned act. This conviction was affirmed on appeal to the court of sessions, and from the judgment of the last-named court this appeal is taken. There was found in the defendant’s possession a bottle, like a quart bottle, often used for Apollinaris water, and it was claimed that the same was a violation of the rights of one Anthony Young, who was engaged in the manufacture, bottling, and selling of mineral waters. The name of Anthony Young was upon a label which had been lithographed and pasted on the bottle with common paste. There was no stamp or cut of the name made into the glass itself. The only question, therefore, in this case, is whether or not the possession and use of bottles of this kind, with a printed or lithographed label pasted upon them, containing the name of the origi nal owner, are a violation of this statute. The first section of the statute is as follows: “Sec. 1. Any and all persons and corporations engaged in manufacturing, bottling, or selling soda waters, mineral or areated waters, porter, ale, beer, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer, or other beverages in bottles, syphons, or ltegs, witli his, her, or its name or names or other marks or devices branded) stamped, engraved, etched, blown, impressed, or otherwise produced upon such bottles, syphons, or kegs, or the boxes used by him, her, or it, or them, may file in the office of the clerk of the county in which his, her, or its or their principal place of business is situated, and also in tlie office of the secretary of state, a description of the name or names, marks, or devices so used by him, her, it, or them, respectively, and cause such description to be printed once in each week for three weeks successively in a newspaper published in the county in which said notice may have been filed, aforesaid, except that in the city and county of New York, and the city of Brooklyn, in the county of Kings, such publication shall be made for three weeks, successively, in two daily newspapers published in the cities of New York and Brooklyn, respectively.” The second section renders it unlawful for any person to fill such bottles with any of the materials above mentioned, or with other beverages, or with medicines, compounds, or mixtures so marked, or to deface, erase, obliterate, cover up, or otherwise remove or conceal any such name, or sell, buy, give, take, or otherwise dispose of the same, without the written consent of, or unless the same shall have been purchased from, such person or persons. By the fourth section of the act search warrants may be issued, and possession of the property taken whicii shall be found to be held or used in violation of the act, and such property shall be turned over to the owner thereof. This conviction caiínot be upheld. The statute does not cover the case of printed or lithographed labels. A piece of paper thus pasted upon glass bottles is not in any sense branded, stamped, engraved, etched, blown, or impressed upon the glass itself. But counsel for the people rest their argument almost exclusively upon the meaning of the following expression, “or otherwise produced upon such bottles, syphons, or kegs, or boxes,” etc. The meaning of the word “produced,” it is argued, is any method of bringing forth to view any matter or thing. This definition undoubtedly is correct, so far as it goes, but it is not applicable, as it seems to us, when taken in connection with the preceding words of the statute, “branded, stamped, engraved, etched, blown, impressed.” All of these words are aptly chosen to indicate a permanent and inerasable name or mark upon the bottle, kegs, or boxes in which the stuff named is contained. The expression, “or otherwise produced upon such bottles, syphons, or kegs, or boxes,” etc., is not satisfied, and the crime against the defendant made out, by proving that he pasted the printed or lithographed label upon the particular vessel mentioned. In this instance, Young’s name was not “produced upon” the bottle. It had been produced elsewhere, and at other times, before the same were pasted upon the bottle. The expression, “or otherwise produced upon such bottles,” etc., relates to the same means of engraving upon the bottles, etc., as the other preceding words indicate, namely, someth! ngthat is developed out of the surface of the bottle by engraving, etching, or blowing, or other like means, whereby an inerasable impression is produced. If this view be correct, whatever may be the other questions contained in the case, it follows that the conviction cannot be upheld, and that consequently the judgment appealed from should be reversed.

Judgment of the court of sessions of Erie county, affirming the judgment of the police court of the city of Buffalo, reversed, and the defendant discharged, All concur.  