Appollinaris Co. v. Venable

• Decision Date: 29 November 1892
• Citation: Appollinaris Co. v. Venable, 136 N. Y. 46, 32 N. E. 555 (N.Y. 1892)
• Parties: APPOLLINARIS CO., Limited, v. VENABLE et al.
• Court: New York Court of Appeals Court of Appeals

136 N.Y. 46

32 N.E. 555

APPOLLINARIS CO., Limited,

v.VENABLE et al.

Court of Appeals of New York.

Nov. 29, 1892.

Appeal from supreme court, general term, first department.

Action by the Appollinaris Company, Limited, against George W. Venable and another for an injunction. From a judgment of the general term (18 N. Y. Supp. 535) affirming a judgment for defendants dismissing the complaint and dissolving the preliminary injunction, and ordering a reference for defendants' damages, plaintiff appeals. Reversed.

Henry Melville, for appellant.

J. Albert Englehart, for respondents.

ANDREWS, J.

The sole question on this appeal is whether an order, made on the application of the defendants after the commencement of the action, to punish the plaintiff for contempt for interfering to prevent the execution of a commission to take testimony, issued upon the application of the defendants, by which order plaintiff was adjudged guilty of the contempt charged, and which directed as a punishment that the plaintiff's complaint should be dismissed, and the temporary injunction granted at the commencement of the action should be dissolved, followed by an actual dismissal of the complaint, and a dissolution of the injunction in pursuance of the order, constituted a breach of the undertaking of the sureties given on the issuing of the preliminary injunction to pay the defendants in the action such damages, not exceeding the sum mentioned in the undertaking, ‘as they may sustain by reason of the injunction, if the court finally decides that the plaintiff was not entitled thereto.’ The object of the action was to procure a judgment restraining the defendants from the infringement of a trade-mark. The right to a temporary injunction depended upon the same facts as did the final relief sought in the action. The interference of the plaintiff which constituted the contempt was a protest made on its behalf, addressed to the American consul at Cologne, against his acting as commissioner under the commission issued to him, on the ground that by the regulations of the German government a commission to take testimony in that jurisdiction, issued from our courts, could not be legally executed by a foreign consul, and that the oath taken by witnesses, and the evidence given under the commission to such consul, would be extrajudicial. The law seems to be as claimed by the plaintiff, but the court properly held that this did not justify the plaintiff in interfering to prevent the execution of the commission....