N. Y. Rep.J

Opinion of the Court, per FINCH, J.

in the four children, subject to the charge upon it of the widow's annuity and the necessary postponement of the ultimate possession. At that date, therefore, the plaintiff's husband became seized of an undivided fourth part of the real estate, subject, it may be conceded, to the lien upon it of the widow's annuity in case of deficiency. The plaintiff's right of dower, therefore, attached and became consummate upon the death of her husband in May, 1888.

Before that date two of testator's children had died. Robert S., the youngest son, who came of age in March of 1876, died in August of that year, leaving a last will by which he gave to his sister Martha one-fifth of all his estate absolutely, and the remaining four-fifths to his mother for life, with remainder over to his brother George. Martha died intestate and without issue in July of 1877, and her whole estate vested in George and the remaining sister, Mary A. Townsend, subject to the life estate of their mother. At that date the whole real estate became vested in those two children, subject to the possible charge of the widow's annuity and to her life estate in four-fifths of one-quarter which came from Robert, and her life estate by descent in the property of Martha. To the extent of two shares or one-half of the land any charge of the annuity upon it became necessarily merged, since taking the income as owner she could not have also a lien upon it as legatee. Such lien was lost in the title. Thereafter a new arrangement was made in the nature of a partition. The widow conveyed her life estate to the two surviving children; they quit claimed to each other a specific half to be held in severalty, and the lien of the widow for her legacy of $1,500 was by agreement charged, one-half upon the lands of each, she at the same time selling and conveying to the children for $5,000 her interests outside of the annuity. The plaintiff's husband thereby became seized of two of the original quarter shares which passed under the will, but charged with the lien of the widow for one-half of the annuity. On his death the plaintiff became entitled to dower in both quarters, and the only remaining question is one of priority between the

Opinion of the Court, per FINCH, J.

[Vol. 147.

annuitant and the dowress. As to the one-quarter which the son took directly from his father, it is to be observed that the findings show a sufficient amount of personal property at the death of the testator to furnish the necessary income. The annuity did not thus become a charge upon the land by force of the original devise, but gained its hold after the dower had attached in behalf of the plaintiff by reason of the subsequent stipulation between the parties. That arrangement, of course, could not affect the wife's right, and so as to onequarter of the original devise, which became one-half of her husband's ownership, her right had priority and preference over that of the annuitant. But as to the other quarter which was acquired by the conveyances made, which by agreement subjected the title as it passed to the lien of a proportionate part of the annuity, the preference and priority belong to the legatee. The husband took the estate and the necessary seizin incumbered by the annuity and the right of the dowress was subordinate to the existing incumbrances. That was the conclusion of the General Term. The attack upon it now proceeds upon the theory that the annuity became a charge upon the whole real estate of the testator and followed it through all its changes to its ultimate destination and so took precedence of the after accruing dower. While it is admitted that there was no deficiency of personal assets for the payment of the annuity at the death of the testator and so no liability of the land, it is insisted that when the trust ended and the estates devolved there was such a

deficiency and the lien arose. There is no finding of any such fact and no request to find it, and we are not at liberty to search the evidence to discover a fact for the purpose of reversing the judgment. Indeed, a broader view of the situation is possible. The only definite complaint of the annuitant is over the alleged loss of some arrears of the annuity which her counsel would make good at the expense of plaintiff's dower. But the time to collect them if they existed has come and gone. The voluntary partition and the contract which followed it was intended plainly for a final settlement

between the parties, leaving nothing at large or undetermined. While the defendant in making her conveyance was careful to reserve her rights under the will, she followed that by a new arrangement which took her annuity out of the operation and protection of the will and furnished for it an entirely new sanction dependent upon a voluntary contract. When she made that agreement, which for the first time divided the annuity and charged it in separate proportions upon the lands in severalty, she knew perfectly well whether or not there were any unpaid arrears, and if there were that the occasion and purpose required them to be asserted and provided for. Either they had no existence, or were merged in the price which she received for her life estates, or were waived and abandoned, since the only charge upon the land for which she stipulated, and which she claimed was for the annuity thenceforward. When it is recalled that the plaintiff's husband willed all his property to the annuitant, leaving the plaintiff with no provision but her dower, the demand that such dower should be diminished by past arrears, unclaimed and unasserted when the final settlement was made, seems to me to have no equity behind it. On the whole case, and taking into view all its complications, I think the conclusion of the General Term was right.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.

DAVID S. BROWN et al., Appellants, v. JOHN H. DOSCHER,

Respondent.

TRADE MARK-IMITATION OF WRAPPER. An action cannot be maintained to restrain, as an infringement of a trade mark, the use by another of wrappers or forms of packages similar to those used by the plaintiff, where it appears that the brands, marks and names displayed upon each are amply sufficient to distinguish them in the general market and that nothing has been imitated which could legally be appropriated as a trade mark. Reported below, 73 Hun, 107.

(Argued November 27, 1895; decided December 10, 1895.)

147 647

169 478

APPEAL from judgment of the General Term, of the Supreme Court in the first judicial department, entered upon an order made November 17, 1893, which affirmed a judgment in favor of defendant dismissing the complaint upon the merits entered on a decision of the court on trial at Special Term.

This action was brought to restrain the use by defendant of an alleged infringement of plaintiffs' trade mark and wrapper

on soap.

The facts, so far as material, are stated in the opinion.

Rowland Cox for appellants. On the face of the wrappers the plaintiffs were entitled to an injunction. (L. M. Co. v. T. M. Co., 138 U. S. 537; Munro v. Tousey, 129 N. Y. 38; Fischer v. Blank, 138 N. Y. 244; T. A. Vulcan v. Myers, 139 N. Y. 364; Von Mumm v. Frash, 56 Fed. Rep. 830; Coates v. M. T. Co., 149 U. S. 562; Reddaway v. B. Co., L. R. [2 Q. B.] 640; A. M. Co. v. Spear, 2 Sandf. 599; 138 N. Y. 252; 139 N. Y. 367; Higgins v. H. S. Co., 144 N. Y. 462; 32 Fed. Rep. 97; 23 Hun, 632; Coleman v. Crump, 70 N. Y. 573; S. Co. v. Loog, L. R. [8 App. Cas.] 18; L. R. [18 Ch. Div.] 612; Lever v. Goodwin, L. R. [36 Ch. Div.] 1; Brown v. Mercer, 5 J. & S. 285; Read v. Richardson, 45 L. T. [N. S.] 54.) The defense of alleged misrepresentation cannot be sustained. (Fischer v. Blank, 138 N. Y. 244; Koehler v. Sanders, 122 N. Y. 65; I. O. T. Co. v. Scott, 33 La. Ann. 76; Fleischman v. Schuckmann, 52 How. Pr. 96; Hegeman v. Hegeman, 8 Daly, 22; Pillsbury v. P., etc., Co., 64 Fed. Rep. 841; Siegert v. Abbott, Cox's Manual of T. M. Cas. [2d ed.] 718; 128 U. S. 520.)

John Henry Hull for respondent. The plaintiffs came into court with unclean hands. The principle of equity being, "He that hath committed iniquity shall not have equity.” (Bispham's Principles of Equity [4th ed.], $ 42.) Where a plaintiff seeks the aid and assistance of a court of equity, he must be free from fraud or misrepresentation in the article which is sought to be protected against one who unlawfully

N. Y. Rep.]

Opinion of the Court, per BARTLETT, J.

obtained possession of the same and sells it as the genuine. (L. C. Co. v. A. L. C. Co., 11 H. L. Cas. 523, 543; Palmer v. Harris, 60 Penn. St. 156; Fetridge v. Wells, 4 Abb. Pr. 144; 13 How. Pr. 385; Morgan v. McAdam, 36 L. J. Ch. 228; 15 L. T. [N. S.] 348; Patridge v. Menk, 1 How. App. Cas. 547; Seabury v. Grosvenor, 53 How. Pr. 192; Heath v. Wright, 3 Wall. Jr. 141; Hobbs v. Francais, 19 How. Pr. 567; Laird v. Wilder, 2 Bush [Ky.], 131; Helmbold v. II. T. H. M. Co., 53 How. Pr. 453; Cheavin v. Walker, L. R. [5 Ch. Div.] 850; Perry v. Truefit, 8 Beav. 66; Holloway v. Holloway, 13 Beav. 209.) There is no such resemblance in the wrappers as is calculated to deceive even the careless and unwary. (Harrington v. Libby, 12 Official Gazette, 184; Gillott v. Easterbrook, 47 Barb. 455; Faber v. Faber, 3 Abb. [N. S.] 115; Popham v. Cole, 66 N. Y. 74.)

BARTLETT, J. Since 1888 the plaintiffs have manufactured a cheap laundry soap in octagonal cakes, put up in an original wrapper and called "Blizzard Soap."

The defendant manufactured a cheap laundry soap in octagonal cakes, put up in a wrapper and called "Leader Soap."

The plaintiffs insist that the defendant has been guilty of an infringement of their trade mark and wrapper.

The General Term, after an examination of the wrappers and a review of the evidence, agreed with the trial judge that the defendant's wrapper did not so resemble that of the plaintiffs as to deceive the ordinary buyer.

After a careful examination of this record and an inspection of the wrappers and packages submitted by counsel we are of opinion that no infringement was established, and that the complaint was properly dismissed.

The plaintiffs' wrapper consists of the words "Blizzard Soap" in white upon a dark ground, presenting the appearance of letters covered with snow, while preserving their general form, and the field or ground represents the air as filled with falling snow. The words "Blizzard Soap" are displayed