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and 120 New York State Reporter empt from levy and sale under an execution. Paine first appeared before the referee on April 13, 1903, at which time he applied for an adjournment. The referee thereupon asked him if the order served upon him contained the usual stay, to which Paine's counsel replied that it did. Upon April 16th Paine reappeared before the referee, at which time he testified that he had upon that morning made an assignment of all his property for the benefit of his creditors, and that his counsel, Mr. Galloway, was the assignee. An attachment was thereupon issued, and Paine was arrested for a contempt of court. Paine gave bail, and upon the hearing on the return of the attachment he denied the alleged contempt, and interrogatories were thereupon settled, to which he was directed to reply. One of these interrogatories was as follows: "Did the value of your property so transferred by you to Mr. Galloway exceed the sum of $2,500? If you say 'No' to this interrogatory, annex to your answer a schedule of all the property so transferred by you,

and state in connection with each piece of property what its value was.

To which said Paine made answer in substance as follows: That the value of the property assigned by him did not exceed the sum of $2,500, that he assigned property of no value not exempt from seizure on execution, and that he could not make a schedule of the property so assigned. The judgment creditor was informed that in February, 1903, Paine had loaned to one Qualey $2,000 or more, and that the same had not been repaid to Paine at the time of the assignment, and that Qualey was solvent, and abundantly able to repay the same. Qualey refused to make affidavit to such facts, but stated that they were true. The appellant contends that the truth as to these facts should be ascertained, in order to punish Paine for a contempt of court, he having testified that he had not assigned anything of value. Thereupon the appellant made an application for an order to take Qualey's deposition before a referee, under section 885 of the Code of Civil Procedure. This application was made before Mr. Justice Blanchard, before whom the contempt proceedings were pending. The motion was denied, the learned judge stating: “The plaintiff has the right, under section 2280 of the Code of Civil Procedure, to produce affidavits or other proofs contradicting any answer, and I do not believe that any such purpose would be served by a reference." The order entered thereon provided that the denial of the motion should be without prejudice to any application which the relator might make herein on further papers. Subsequently the plaintiff made the motion in the proceeding first above entitled at Special Term, and the motion was again denied; not for want of power, but in the exercise of discretion. Some question having been raised as to whether the motion could be granted in a special proceeding under the provision of section 885 of the Code of Civil Procedure, the plaintiff thereafter made a motion upon a different set of motion papers, entitling the same as in an action wherein the judgment creditor was made relator, and upon these papers a motion was made for the same relief, and disposition of such motion was the same as in the other proceeding. The appeals herein are from the orders denying the motion entered in each case. No leave was necessary to make the first motion, as the order of Mr. Justice Blanchard reserved in the party the right to make the same, and no leave was necessary in the second case because it was made upon different papers, and in an action differently entitled; but we think it was proper to deny the motion in each case. The plaintiff is undoubtedly entitled to procure the deposition of Qualey, and the facts which appear show that his deposition is material in the contempt proceeding. His testimony, however, could be taken directly in the proceeding itself, and the witness could be compelled to appear before the court upon such proceeding either by subpoena or order under the provisions of section 2280 of the Code of Civil Procedure. That section authorizes a party upon the hearing for contempt and on the return to the interrogatories to produce affidavits or other proof, and all that was necessary for the plaintiff to do was to take steps for the production of Qualey in court upon that proceeding when this testimony could be given.

It follows that the orders should be affirmed, with $10 costs and disbursements in each case.

INGRAHAM, MCLAUGHLIN, and LAUGHLIN, JJ., concur. VAN BRUNT, P. J., concurs in result.

WOOLWORTH v. KLOCK. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. CHANGE OF VENUE-ACTION FOR LIBEL.

The only question of fact in an action for libel being that of damages, it not being alleged that the libel was published in the county where the action was brought, and all the witnesses except plaintiff being residents of the county in which the paper containing the libel was published, change of venue should be granted to such county. Appeal from Special Term, New York County.

Action by Frank W. Woolworth against Jay É. Klock. From an order denying a motion to change the place of trial from the city and county of New York to Ulster county, defendant appeals. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

A. T. Clearwater, for appellant.
Joseph B. Handy, for respondent.

PER CURIAM. This action is brought to recover damages for the publication of a libel in defendant's newspaper, published at Kingston, in the county of Ulster. The publication of the libel is admitted, and the answer in all essential respects is a plea in mitigation of damages, and such is the question which will be litigated upon the trial. The action is transitory in its nature, and there is no averment in the complaint that the libel was published in the city and county of New York. Whatever damages the plaintiff has sustained from this publication would seem to be limited to such as he has sustained in the locality in which the paper was published and circulated; and the witnesses upon and 120 New York State Reporter such subject, save the plaintiff, are shown to reside there. Within the ruling of this court in Rogers v. Butler, 71 App. Div. 613, 75 N. Y. Supp. 536, the proper place for the trial of the action would seem to be the county of Ulster.

The order should therefore be reversed, with $10 costs and disbursements, and the motion granted.

RONCORONI V. GROSS et al. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. TRADE-MARK-USE OF FOREIGN WORDS.

A manufacturer cannot obtain an exclusive right to adopt as a trademark a phrase of a foreign language, fairly describing the manufactured

article. 2. LABEL-RIGHT TO EXCLUSIVE USE.

A manufacturer will be restrained from using a label in imitation of the label of another manufacturer of the same product, so as to induce the public to believe that they are purchasing the product of the latter when

they are purchasing the goods of the former. Appeal from Special Term.

Action by Piotro Roncoroni against Rudolph Gross and another, doing business under the firm name of the American Conserve Company. From an order granting a temporary injunction restraining defendants from using certain words as a designation of tomato preserves and from using a certain label, defendants appeal. Modified.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

J. J. Lesser, for appellants.
Louis Steckler, for respondent.

INGRAHAM, J. By an order entered at Special Term the defendant was enjoined and restrained from using “the words 'Conserva Di Tomate' as a designation of any tomato preserves or paste, or other product manufactured, sold, or dealt in by them, or either of them," and, further, from in any manner using or imitating the label of the plaintiff, and from that order the defendants appeal. It appears that the word “tomate” is an Italian word for the tomato, only used in a small territory situated in the north of Italy, and is not the Italian name for tomatoes except in that locality; that the Italian word for tomato is "pomidora,” but that in the United States the word "tomate” has been generally understood by Italians to refer to the tomato and that the phrase "Conserva Di Tomate," adopted by the plaintiff to designate the contents of the cans manufactured and sold by him, would indicate that the article was a preserved tomato. The defendants originally produced and sold the article manufactured by them under the name of "Conserva Di Pomidoro," and some time before the commencement of this action changed the name to “Conserva Di Tomate," the same name under which the plaintiff's product had been manufactured and sold in the market. It would seem to be clear that, as this name adopted by the plaintiff was Italian for "preserved tomato," the plaintiff could not acquire by its use in describing articles manufactured and sold by him a trade-mark, so that others could not use the same phrase as describing the articles manufactured and sold by them. It is the Italian for the article that the plaintiff manufactured and sold, and it is now well settled that no one can acquire a trade-mark by the use of words of a foreign language which correctly describes the article manufactured any more than a trade-mark can be acquired in the words of the English language which properly describe such product. It is quite clear that the plaintiff could not, by calling this article “preserved tomatoes,” acquire the exclusive right to use that phrase, nor could he, by adopting the Italian words which are a translation of the English words describing the character of what he manufactures, acquire a trade-mark in the Italian words. Caswell v. Davis, 58 N. Y. 223, 17 Am. Rep. 233; Barrett Chemical Co. v. Stern, 176 Ñ. Y. 27, 68 N. E. 65. The words used by the plaintiff are descriptive. They are the Italian for “preserved tomatoes” used in a portion of Italy and among Italians in the United States; and, though there is another Italian name for tomato in more general use than that adopted by the plaintiff, still the word "tomate," more closely resembling the English name of the vegetable, is none the less a name which describes the vegetable from which the plaintiff's product is manufactured; and the name, taken as a whole, is a fair description of the manufactured article. This is not the case where an entirely arbitrary name, having no relation to the quality or nature of the article manufactured, has been invented by the plaintiff, but is an Italian phrase, which fairly describes the manufactured article, and I think the plaintiff can obtain no exclusive right to call the manufactured article by this name. The affidavits, however, disclose a clear attempt by the defendants to imitate the plaintiff's label, which entitled the plaintiff to an injunction restraining the defendants from such imitation as will induce the public to believe that they are purchasing the plaintiff's goods, when in reality they are purchasing goods prepared and manufactured by the defendants.

The order must be modified by striking out the provision restraining the defendants from using the words “Conserva Di Tomate” as descriptive of the product sold, but continuing the injunction so as to restrain the defendants from using the label a copy of which is annexed to the complaint, or any other label in imitation of that of the plaintiff, and the order appealed from, as thus modified, is affirmed, without costs to either party on this appeal. All concur.

RONCORONI V. GROSS et al. (Supreme Court, Appellate Division, First Department. March 11, 1904.) 1. ORDERS-How DESIGNATED.

Orders which are orders of the court should be styled as orders of the

court, and not as orders of the justice directing their entry. 2. CRIMINAL CONTEMPT-ORDER ADJUDGING ONE GUILTY-SUFFICIENCY.

Under Code Civ. Proc. $ 11, providing that, where a person is committed for contempt for a willful disobedience of the lawful mandate of a court, f 2. See Contempt, vol. 10. Cent. Dig. $ 208.

and 120 New York State Reporter "the particular circumstances of his offense" must be set forth in the mandate of commitment, an order adjudging one guilty of violating an injunction, which contains a general statement of the disobedience, but

fails to set forth the particular circumstances, is fatally defective. Appeal from Special Term.

Action by Peter Roncoroni against Rudolph Gross and another, doing business under the firm name of the American Conserve Company. From an order adjudging defendants guilty of a criminal contempt in disobeying an injunctional order, they appeal. Reversed.

Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ.

Edward Hymes, for appellants.
Louis Steckler, for respondent.

VAN BRUNT, P. J. Throughout the papers in this case the orders are spoken of as being the orders of the justice who directed their entry. It will be observed that they were not judges' orders, but orders of the court, and should have been styled as such, they not being orders of the justice, but of the court over which he presided. On the 30th of November, 1903, an order was entered in this action enjoining and restraining the defendants during its pendency and until the further order of the court from in any manner using the words “Conserva Di Tomate” as a description of any tomato preserves or paste. etc. It being claimed by the plaintiff that the defendants violated this injunction, on the 11th of December, 1903, an order to show cause was procured requiring them to show cause why they should not be punished as and for a contempt of court because of the violation of the injunction above mentioned. Upon the hearing of this motion evidence amply sufficient to justify the conviction of the defendants of such violation was presented to the court, and thereupon an order was entered granting the motion, and ordering that the defendants, and each of them, be punished as and for a criminal contempt in disobeying the order entered herein on the 30th of November, 1903, and fining the defendants the sum of $100. From this order the defendants have appealed, and the only question which it is necessary to consider upon this appeal is as to the sufficiency of the order adjudging the defendants guilty of contempt; it being claimed that it does not comply with the provisions of the Code in reference to criminal contempts, in that it fails to set out or describe the act or acts constituting the alleged contempt. This objection seems to be well taken. Section 8 of the Code of Civil Procedure defines criminal contempts, under the third subdivision of which section the acts of the defendants would fall; section 9 provides for the punishment for criminal contempts; section 10 provides for the punishment for such contempts when committed in view of the court; and section ii specifies the requisites of commitment. It is as follows: "Where a person is committed for such a contempt, the particular circumstances of his offence must be set forth in the mandate of commitment.” In the case at bar there is a general statement of disobedience of the order of the 30th of November, 1903, but the particular circumstances which constituted such disobedience are nowhere set forth in the order appealed from. The requirements,

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