#### The Humphreys Homœopathic Medicine Company, Respondent, *against*Beatson J. Bell *et al.,*Appellants.

(Decided May 18th, 1888.)

A proprietary right may exist in an original and peculiar method or form of preparing, wrapping, boxing, and packing articles of merchandise, and may be protected by injunction, at the suit of one who invented and first employed such method or form, against a close and intentional imitation, likely to mislead the public.

Defendant had been the business manager of a corporation whose business was the preparation and sale of certain medicines ; but he had had nothing to do with the compounding or putting up of such medicines. Held, that he should be restrained, at the suit of the successor of such corporation in the business, under a similar name, from advertising himself, in his subsequent business operations, as “late manager ” of the former company.

*7Appeal from a judgment of this court entered upon the decision of the court at a trial without a jury.

The action was brought to restrain defendants from imitating plaintiff’s methods of putting up, packing, and preparing for sale certain veterinary specifics and medical preparations, and to restrain the defendant Bell from describing himself, in his advertisements, as the “ late manager ” of a company which had been plaintiff’s predecessor in business under a similar name.

The facts are stated in the opinion.

*Thornton, Earle, & Kiendl,*for appellants.

*B. F. Ryan,*for respondent.

Larremore, Ch. J.

The learned judge who tried this case at the equity term, in his opinion there *rendered,*has carefully considered both of the important points involved. These are: first, the question of the similarity between the plaintiffs’ and defendants’ boxes of veterinary specifics, and the alleged imitation of plaintiff’s medical preparations by the defendants; and second, the matter of the defendant B. J. Bell’s describing himself habitually in his business advertisements, as the “ Late Manager of Humphreys Specific Medicine Company.”

With regard to the first of these subjects of controversy, we think that the cases cited by Judge Daly establish the general principle that, outside of the question of the infringement of a specific trade-mark, there is a proprietary right, which may be asserted in a court and protected from violation by an injunction, if necessary, in any original and peculiar method or form of preparing, wrapping, boxing, and packing articles of merchandise, which, as matter of fact, has been invented and first employed by the plaintiff and has not been in common use by the public. In the case of *Woollam*v. *Ratcliff (1*Hem. & Mill. 259), cited by Judge Daly, it was held that, in regard to the packing of merchandise in “ a bundle similar to that of complainant, the wrong does not *8lie in the resemblance in any one particular, but in the accumulation of resemblances.” The grounds for an injunction in such a case are, as in trade-mark cases, twofold, to wit: first, that of protection to the plaintiff in his exclusive right; and second, that of the protection of the public from imposition by the palming off of goods different from or inferior to those usually furnished by the plaintiff. The learned judge-at special term, after a careful review of the evidence, and an actual inspection of the cases of medicine and the contents thereof, furnished by the plaintiff and the defendants respectively, has reached the conclusion that one is a close and intentional imitation of the other ; and that by reason of the similarity between the" boxes externally, “ the arrangement and number of the bottles of ointment, medicator, pamphlet, and labels on the bottles and inside the cover of the box,” there is danger that the public will be misled, and that persons intending to purchase the plaintiff’s preparations may be induced to purchase the defendants’ instead. We see no reason to question or disturb this finding of fact. It is one which, in the nature of things, must depend largely on an ocular examination of the original article and its alleged infringement, and the printed evidence in the case is sufficient and ample to sustain the judge’s finding.

We also concur with the learned judge’s disposition of the second question above referred to. A large part of the evidence offered by the defendants tended to show that the defendant Beatson J. Bell had actually been the manager of the-plaintiff corporation, or its predecessor of a similar name, and that, therefore, he was justified in describing himself as such manager in his subsequent business operations. But such evidence, even if taken as true, would not establish anything further than that said defendant had been the business manager of such corporation. The testimony shows that said defendant, while in the employ of plaintiff, had to do with book-keeping, general management of finances, engagement and discharge and direction of traveling salesmen and other employes, and attending to the corporation’s advertising. The business and financial department of such a cor*9poration as the plaintiff, while of course important, is necessarily not its most essential branch; it is rather an adjunct to the main purpose of its formation. It does not appear that said defendant had anything to do with the management of the laboratory or the preparation of any of the remedies or medicine prepared by the Humphreys Homoeopathic Medicine Company. For this reason it is not a truthful statement for Mr. Bell to describe himself as “ Late manager of the Humphreys Specific Medicine Company.” As Judge Daly remarks in his opinion: “ But with that branch of the business on which alone the reputation of the company depended, the compounding of medicines and putting up of specifics, he had no concern whatever, as Doctor Humphreys, the president of the company and the originator of the system of specifics, had exclusive charge of"it. ”

A decision of Judge Dugro at the special term of the Superior Court *(Colton*v. Deane, 7 N. Y. St. Repr. 78) is in point in the present discussion. That was an action brought for an injunction against a woman, who described herself in business advertisements as “ Colton’s late assistant.” It seems that the duties actually performed by said woman were not the assisting of the dentists in extracting teeth but only in the administration of gas under instructions from the operator ; and that the plaintiff therein testified that this service could be performed by any child after an experience of a couple of weeks. The learned judge remarked: “ Colton’s business consisted in extracting teeth with the aid of gas. The extraction of teeth was the main work. This required a dentist, and for this work he had several dentists in his employ. The work of Miss Wolfsbruck was such as required very slight experience, for it seems the menial servant sometimes did it. Colton’s business establishment was well known throughout the community as a place where teeth would be painlessly extracted. And by holding herself forth to the public as ' Colton’s late assistant,’ Miss Wolfsbruck was impliedly claiming that she had assisted at said establishment in the extraction of teeth, while such was not in fact her duty in said place. ”

*10This case in the Superior Court was closely analogous in principle to the case at bar, and I concur with the views of the learned judge there expressed. There, as in the present case, a permanent injunction was granted against the use of the false designation or description.

The judgment appealed from should be affirmed, with costs,

Allen and Bookstaver, JJ., concurred.

Judgment affirmed, with costs.