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He states that complainant, while in England (where she says her child was born), and after her return in 1897, adopted the name of Oram for herself and child to deceive the people and the public into the belief that she had been married to defendant, and inasmuch as the conversations of defendant's sister and brother-in-law specifically inquiring as to his marriage were made because of reports they heard as to his marriage, the criticism of defendant's counsel that the defendant's admissions as to the marriage, set out in one or more of the affidavits, although they show admissions of a marriage, do not show a marriage to complainant, is too technical. That any other marriage than one with complainant was rumored, or was referred to or recognized by the family, must, in the situation of all the affidavits, be shown by the defendant. Besides these verbal admissions, with the family recognition following, it further appears that after the father's death, his children, with their wives and the husband of the daughter, united in the execution and acknowledgment of a deed, and that defendant and complainant were described therein and executed and acknowledged the same as Thomas W. Oram and Laura Jane Oram, his wife.
On the entire affidavits, and in the absence of any sufficient explanation by defendant of his specific admissions of the marriage, complainant has shown such a prima facie case of recognition of the marriage relation to defendant after the alleged ceremony, as to entitle her to an allowance pendente lite for the expenses of her suit to establish the marriage. As to counsel fee and expenses of suit, the additional reason appears in the statements of defendant's affidavit and answer, that in the fall of 1899, he refused complainant's application for further support, basing it on his denial of their marriage, and declared that she would have to prove it in court. The complainant had then but little means and is now without means to undertake a litigation in which the truth or falsity of her claim is to be ascertained. It would seem from defendant's declarations made in 1899, his subsequent continued refusal to support or have any dealings with complainant, and from his present defence, that the actual marriage to complainant, on which the suit is based, is to be vigorously contested, and to prove it will probably involve on
complainant's part an expense which she personally cannot bear. A denial of means to carry on her suit might, and probably would, deprive her of the right to a trial of her claim, and in view of the status of the case as to the defendant's admissions and acts in reference to his marital relation to complainant, she is entitled to a full hearing of the claim and to have from the defendant a contribution toward the preparation of the cause.
Alimony pendente lite must, however, be denied, because of the long delay of complainant in filing the bill. For over ten years the complainant has received no support from defendant for herself or her child, and has been supported by her own small means aided by the members of her own family. In view of defendant's denial under oath of the marriage ceremony sworn to by complainant only, and also of the statement in his affidavit (which has not been denied by complainant) that in or about September, 1899, he finally refused to support her further, because he denied her claim to be his wife, and challenged her to prove the claim in court, the status as to support which has been continued for over ten years, should not be changed pending the trial of the cause.
The legal principles controlling decision on the application are, I think, clear. Where a bill for alimony is based on an actual marriage, and on application by the wife for temporary alimony and expenses, the actual marriage set up is denied by the alleged husband, the wife must establish by evidence other than her own affidavits, facts so corroborating her claim, as to make a reasonably plain case of the existence of the marriage relation, in the absence of sufficient explanation or proofs by the alleged husband. Proof of the full or conclusive character which might be necessary on final hearing is not required, but the mere uncorroborated denial of the marriage by the defendant under oath, is not of itself and under all circumstances sufficient to deprive the alleged wife of support until the trial and aid in the expenses of the suit. In Brinkley v. Brinkley (1872), 50 N. Y. 184, &c., the cases and authorities are fully examined. In our own courts, Vreeland v. Vreeland (Chancellor Zabriskie, 1866), 18 N. J. Eq. (3 C. E. Gr.) 43, states the general rule that where there is a controversy as to the existence in
fact of the marital relation the ex parte affidavit of the wife is not sufficient for an order for temporary alimony and expenses, where the evidence on the point of marriage is conflicting and contradictory, and where there was no proof that the complainant was ever acknowledged or treated as defendant's wife openly or publicly for any period. But the statement that where the fact of marriage is denied, cohabitation as man and wife must be proved, if intended to exclude any other kind of proof, is, I think, too broad, and, as a statement of law, was certainly obiter.
The question of the nature and effect of the alleged husband's admissions and conduct as corroborating the wife's claim of an actual marriage depends upon the special circumstances of each case, and distinct and specific admissions of the marriage, not denied or explained by the defendant on the application for alimony, may, for the purposes of alimony pendente lite and counsel fee, be as effective, I think, as cohabitation. Where an actual marriage is admitted, but the lawfulness of it is questioned, other considerations may be involved, and many of the cases cited are of this character.
The allowance of counsel fee for the purpose of aiding the wife in bringing her cause to trial as one which she was entitled to present fully, while the application for alimony is denied, has been followed in other courts. Mann v. Mann, cited 2 Am. & Eng. Encycl. L. (2d ed.) 103; affirmed, 75 N. Y. 614. In this case there was no reason for the refusal other than the doubtful outcome of the wife's case, and not as here the specific reasons of laches.
I will hear counsel on the amount to be allowed for counsel fee, before signing order, if desired.
Corbett Bros. Co. v. Reinhardt-Meding Co.
CORBETT BROTHERS COMPANY
[Decided May 7th, 1910.)
1. Where manufacturers of ribbons adopted a trade-mark consisting of a monogram of three letters, the form of which was necessarily liable to a certain degree of imitation in general effect, if the general form or idea of the monograms was adopted, its protection as a trade-mark must, to some extent, depend on the liability of a purchaser to be deceived on close inspection.
2. Numbers used by manufacturers of ribbon to designate the width of the ribbon were the common property of the trade and not the subject of a trade-mark, but a series of arbitrary numbers used to indicate the precise color or shade of the ribbons and used to indicate the origin of the goods was a proper subject of protection as trade-marks against unlawful competition.
3. Where a bill of sale of the assets of a partnership included all contracts, obligations, and everything in any way pertaining to the business of the partnership, it was effective to convey to the purchaser the partnership's trade-marks.
Heard or bill, answer, replication and proofs.
Mr. Edward Q. Keasbey, for the complainant.
Mr. William B. Gourley, for the defendant.
EMERY, V. C.
The bill in this case is filed l;y the complainant, a company engaged in the manufacture and sale of silk ribbons, against the defendant, a company engaged in similar business, to restrain the alleged infringement of complainant's trade-marks, and also to restrain alleged unfair competition.
Complainant company is the successor and assignee of a partnership formerly composed of four persons, one of whom was C. A. Reinhardt, one of the officers and organizers of the defend
Corbett Bros. Co. v. Reinhardt-Meding Co.
ant company, and complainant's claim to relief is based partly on the fact that Reinhardt's assignment of his interest in the property and everything pertaining to the business of the firm included the trade-marks in question. Both companies manufacture a high grade of silk ribbons and sell only to jobbers or retailers, and the general style of putting up the ribbons for sale in the inarket, and designating the manufacturer, and also the kind, quality and color of the ribbons, is one adopted by all manufacturers, and is substantially as follows:
The ribbons are rolled or wound upon cylindrical blocks about two inches in diameter, of the various widths or thickness required, and when so wound are called "bolts. Both sides of the circular block on which the ribbons are wound are covered with paper, and upon these are shown within a large circle the marks or signs indicating the manufacturer, the general style or character of ribbon, the pattern of the ribbon, the width, and also the color. The style of ribbon is usually indicated by descriptive words, such as "belting," "satin taffeta," &c., and the pattern or weare of ribbon, by the word "pon," meaning pattern, followed by a number-each manufacturer having his own numbers for his patterns. The manufacturer of the goods is directly indicated by a trade-mark proper in the centre of the label, on the same side with the above marks. In the case of both parties to this suit, it is a small monogram in the centre of the label, and in each case composed substantially of three principal letters superimposed; in complainant's monogram the letters C. B. C.; in the defendant's, R. M. C. In both of the monograms the letter “C” has a striking elongated shape; the letter “B” of one and “R”. of the other occupy similar positions with reference to the elongated “C.” The letter “M” worked into the centre of defendant's monogram is unlike anything in complainant's monogram, and is suificient to distinguish it, on a careful inspection, if such test is important in the case. The question of singilarity is one to be decided in this case mainly by inspection, for both parties sell to jobbers or retailers, and not to the public, and there is no evidence that the jobbers or retailers have been, or are likely to be, deceived into purchasing defendant's goods for complainant's by any similarity in the monograms. There is undoubtedly a general