business by the use of this label. At the trial of the action, proof was given from which it is contended that the court would have been warranted in finding that these allegations had been sustained, but it was not definitely acted upon by the court, for the complaint was dismissed at the close of the plaintiff's evidence, on the motion of the defendants. This motion was made on the ground that the allegation that the plaintiff was a corporation, which the answer denied, had not been proved; that no cause of action had been proved; "that there was no such similarity between the plaintiff's trade-mark, or label, and the defendants', as would warrant a court of equity granting an injunction in the absence of proof that people had been deceived." The justice presiding then responded: "My impression is that, in the absence of such proof, you have not made out a case, and I therefore dismiss the complaint." It was alleged in the complaint that the plaintiff was a corporation organized and doing business under and by virtue of the laws of the kingdom of Norway and Sweden. The denial of the defendants was: "Upon information and belief they deny that plaintiff ever was or now is a corporation." This denial would be wholly insufficient to require proof of the existence of the plaintiff as a corporation, if it had been alleged to have been created under the laws of this state; for, by section 1776 of the Code of Civil Procedure, it has been enacted that such proof need not be given, unless the answer is verified, "and contains an affirmative allegation that the plaintiff or the defendant, as the case may be, is not a corporation." This was not an affirmative allegation within this section, and would not have entitled the defendants to insist upon this proof, if the plaintiff had been alleged to have become incorporated under the laws of this state. But the absence of that allegation was not important as long as it was alleged that the plaintiff was created a corporation under the laws of the kingdom of Sweden and Norway; for, by section 1779 of this Code, it has been further declared that "an action may be maintained by a foreign corporation, in like manner and subject to the same regulations as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law." To dispense with proof of the corporate existence of the plaintiff, in the absence of this affirmative allegation of an answer, was a regulation of the action in the case of a domestic corporation. It defined and prescribed the course of proceeding in the action; and, as there was no specific provision requiring a foreign corporation to make proof of its corporate existence under this denial, it follows that proof of the plaintiff's incorporation could not be exacted, without some regulation requiring it that would be an invidious, as well as unwarranted, destruction, needlessly embarrassing to the course and transactions of trade and business, so largely, at the present time, carried on in the commercial world, by means of corporations formed under the laws of other states of this Union and of foreign countries. As there is no such regulation as required this proof, there was no ground presented for the dismissal of this complaint because of the absence of this evidence.

To maintain this, or any other action, for the use of the trade-mark of another, the law does not exact a perfect or complete simulation or resemblance. But what has been made necessary is that there shall be such an imitation of the plaintiff's trade-mark, by the defendants, as is calculated to, and probably will, deceive purchasers into the belief that, in buying the defendants' articles, they are really obtaining those manufactured, or dealt in, by the plaintiff, and, in that manner, induce them to purchase the defendants' productions, for those of the plaintiff. The law to that extent intends to afford the plaintiff protection against the artful and ingenious wrongs of rival dealThis was so clearly stated in Colman v. Crump, 70 N. Y. 573, as to justify a repetition of what was there said by Judge ALLEN, for it is specially applicable to and states the principle governing this case. It was then said that "a party may have a property in-that is, an exclusive right to use

ers.

a name, symbol, figure, letter, form, or device, to distinguish goods manufactured and sold by him from those manufactured and sold by others, or to indicate when, or by whom, or at what manufactory, the article to which it is affixed is manufactured. This property right the courts will protect by injunction, and, for its invasion, the law gives compensation in damages. It is an infraction of that right to print, or manufacture, or put on the market for sale, and sell for use upon articles of merchandise of the same kind as those upon which it is used by the proprietor, any device or symbol, which, by its resemblance to the established trade-mark, will be liable to deceive the public, and lead to the purchase and use of that which is not the manufacture of the proprietor, believing it to be his. It is not necessary that the symbol, figure, or device, used, or printed, and sold for use, should be a fac simile-a precise copy-of the original trade-mark, or so close an imitation that the two cannot be distinguished, except by an expert, or upon a critical examination by one familiar with the genuine trade-mark. If the false is only colorably different from the true, if the resemblance is such as to deceive a purchaser of ordinary caution, or if it is calculated to deceive the careless and unwary, and thus to injure the sale of the goods of the proprietor of the trade-mark, the injured party is entitled to relief." Id. 578. And it may be added that the action will not necessarily be defeated by such points of difference as will be observable by placing the labels, or trade-marks, side by side, if the general appearance and prominent features prove to be so far identical as to induce dealers not having them both present to accept the defendants' for the plaintiff's. And these principles have the approval and support of many other authorities. Munro v. Beadle, 8 N. Y. Supp. 414; Tobacco Co. v. Maller, 6 N. Y. Supp. 389. And it was not in the least impaired, or undermined, by what was decided in Morgan's Sons v. Troxell, 89 N. Y. 292, where the attributes of resemblance were too slight to produce the deception of even the "unwary."

When the evidence is such as to present the question whether the resemblance of the one symbol, or trade-mark, to the other is such as will probably deceive purchasers, then it is not necessary that further proof should be added that purchasers have in fact been deceived, by the defendants' simulation. The facts required to maintain an action to enjoin the infringement of a trademark, were fully examined and discussed in Manufacturing Co. v. Trainer, 101 U. S. 51, and among the points accepted by the court, is the conclusion that it "is not necessary to show that any one has in fact been deceived, if the imitation is such as to prove that it is calculated to deceive ordinary purchasers using ordinary caution." Id. 63. But the defendants had precluded themselves from resting upon the objection that proof had not been given that persons had been deceived into the belief that their label was that of the plaintiff, for its agent was asked, “After that match was placed upon the market by the defendants, what effect, if any, did it have upon your trade of the Vulcan match?" and, "Did the placing upon the market of the Vulture match have any effect upon the sales of the Vulcan match through you?" These questions were not correct in point of form, but that deficiency in them could well have been removed, if they had been objected to on that ground. But they were not. The objections were made in the most general form. They were each only "objected to by defendants' counsel." And this objection was sustained, and the evidence excluded, and the plaintiff excepted. These exceptions were well taken, for the plaintiff was at liberty to prove, if that could be done, that its sales had been reduced by placing the defendants' matches, in this manner, upon the market. And these general objections did not warrant the exclusion of the evidence expected to be obtained by these questions, (Bergmann v. Jones, 94 N. Y. 51;) but as it had been so excluded, the defendants could not make the absence of this proof a ground for dismissing the complaint. A very decided effort has been made to sustain this dismissal, on the ground that the differences between the labels were such as to

prevent the plaintiff from maintaining the action; but that position is not tenable, for it did not enter into the disposition of the case at the trial. The learned presiding justice, on the contrary, dismissed the action, because of the absence of proof that the plaintiff was a corporation, and that people had been deceived by the defendants' label. As has already been seen, this proof was not required to be made, and the defendants, by their own conduct, had prevented themselves from insisting that the latter fact should be sustained by evidence, even if that could be otherwise held to be necessary. There are important features of difference as well as resemblances in these labels, as will be seen by their inspection; but, whether the plaintiff's label has been unlawfully infringed by the defendants, is not a question now to be determined. The matches were shown to be exhibited for the purposes of sale, by the single box, although sold in packages. These boxes were each accompanied with the plaintiff's label, and there is reason to believe that the defendants' matches were sold in the same general manner with their labels. The following are the labels, each attached to the same wooden background:

And followed by a fold presenting these appearances, friction space, and words:

PLAINTIFF'S LABEL.

DEFENDANTS' LABEL.

FRICTION SPACE FRICTION SPACE

MANUFACTURED

IN

AT

TOAHOLM

SWEDEN

PARAFFIN MATCHES

PLAINTIFF'S LABEL.

But as the complaint was dismissed for the causes which have been stated, and without considering whether there was any unlawful simulation of the plaintiff's label by the defendants, that question is not now presented for decision by the appeal. It is enough that the case was dismissed because of the absence of proof, on the facts which have been mentioned, and that these defects were unimportant. Whether the case did, or did not, as the evidence was given, so present this fact of resemblance between the labels, as to entitle the plaintiff to maintain the action, was not decided or considered at the trial, and therefore it has not been brought by the appeal before this court to be reviewed. Place v. Hayward, 117 N. Y. 487, 23 N. E. Rep. 25. But, as the case was disposed of, the judgment cannot be sustained. It should therefore be reversed, and a new trial ordered, with costs to the plaintiff to abide the result.

SABERSKI v. VELOSKY et al.

June 23, 1890.)

(Supreme Court, Special Term, New York County. SPECIFIC PERFORMANCE-EXCHANGE OF LAND-DEFICIENCY IN QUANTITY. After plaintiff and defendant had entered into an agreement for an exchange of real estate it was discovered that defendant's property was deficient in quantity. Held, that specific performance of the contract, with compensation to plaintiff for the deficiency, would not be enforced.

Action by Rosa Saberski against Anna Velosky and others for specific performance of a contract to exchange real estate.

S. M. Roeder, for plaintiff. Levy & Levy, for defendants.

BEACH, J. By a written agreement, dated September 10, 1889, the plaintiff and defendants agreed to an exchange of real properties owned by them respectively in this city. That of the defendants was described as being 25 feet wide, and it is but 24. The plaintiff brings suit to enforce a specific performance, with compensation to her for the deficiency of one foot. There is a divergence in the evidence upon the subject of what was said about the dimensions of defendant's lot when the contract was executed. From the peculiar mention of its depth in the agreement, in connection with the oral testimony upon defendant's behalf, I am inclined to conclude that the defendant's contention upon the point is correct. The defendant's lot is wholly covered in width by a building, and there can be no doubt that the plaintiff viewed it with particularity enough to be aware of that fact. There are reasons, apparently well established by authority, which, in my opinion, prevent the rendition of a decree, conforming to the relief prayed in plaintiff's bill of complaint. The foundation of the jurisdiction of this court to decree specific performance is the inadequacy of the remedy at law. Fry, Spec. Perf. § 12, p. 48, with numerous adjudications given in note. In this case I have no doubt that a court of law can afford the plaintiff an adequate remedy through an action for damages. The contract is one for an exchange of realty, and the defendants being unable to perform, by no act of theirs, the inability constitutes a perfect defense in equity. Id. § 658, pp. 389, 390, and note; Beck v. Allison, 4 Daly, 421; Sternberger v. McGovern, 56 N. Y. 12. The reason of the rule is that a decree would, in substance, call upon the party to perform a contract which he did not make. In the case at bar, the agreement was for an exchange, the values and money to be paid, specifically fixed, for the barter. To compel the defendants to make compensation in money would for them create an obligation they had never assumed, nor intended to assume. The words of the court in Sternberger v. McGovern, supra, state the principle, and also answer the authorities cited on plaintiff's behalf: "The counsel cites numerous authorities showing that, when a vendor is unable to perform the entire contract, the purchaser may, if he chooses,