Charles W. Briggs et al., Appellants, v. James Vick, Respondent

Charles W. Briggs et al., Appellants, v. James Vick, Respondent. (Submitted January 12, 1875; decided May term, 1875.) This action was brought to restrain defendant from circulating or distributing a publication called “Tick’s Floral Guide for 1.872,” with a clause therein alleging that defendant had obtained the first prize for pansies at the New York State fairs, and at every exhibition where he had shown them. It appeared upon the trial, and was found by the court, in substance, that the parties were rival florists, doing business at Rochester; that at the New York State agricultural fair, for the years 1870 and 1871, premiums were awarded for the first and second best collections of pansies; that the first premiums for both years were awarded to plaintiffs, and the second to defendant. The complaint alleged that the statement so contained in defendant’s publication was “ falsely and fraudulently put forth by the defendant for the purpose of deceiving the public,” and injuring the plaintiffs in their business. It was also alleged and claimed that plaintiffs have a “property and interest” in the recommendation and credit of the State. Agricultural Society in being awarded the first premium, which defendant had no right to appropriate or to deteriorate by fraud or falsehood. Defendant’s answer denied any intent to injure plaintiffs, and alleged, in substance, that the objectionable statement was made through inadvertence. There was no finding that the publication was made with any fraudulent intent, or that it was sent to any of plaintiffs’ customers, or that they had sustained any injury on that account. Held, by Reynolds, C., who wrote the opinion, that the action could not, in any event, be maintained; as to this the other members of the commission expressed no opinion, but all concurred that, conceding the action was maintainable, it was necessary that it should appear affirmatively that defendant not only intended to injure plaintiffs, but that such result had followed; and that in the absence of findings to that effect a judgment in favor of defendant could not be disturbed. Daniel Wood and Henry H. Selden for the appellants. Hd/wa/rd Ha/rris for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for affirmance. All concur. Judgment affirmed.