Edward & John Burke, Ltd. v. Bishop, No. 47

No. 47 | 2d Cir. | Mar 23, 1906

PER CURIAM.

The real controversy in the case is between the complainant and the firm of W. A. Ross & Co., and the bill of complaint shows this by the averments, which otherwise would be wholly irrelevant, that such firm is the importer of the competing bottled stout, is doing, business at the same city with the complainant, and that the stout dealt in by defendant is purchased by him of that firm. The action is defended by W. A. Ross & Co.

Ross & Co. have been selling Guinness’ stout in bottles dressed in the capsules and labels in controversy, in competition with the complainant, notoriously, extensively, and under claim oí right, since 1893. In 1896 the complainant brought suit in this court against the firm to enjoin such competition. After proofs had been taken in part, the complainant abandoned the further prosecution of the suit, and in February, 1901, obtained the consent of the defendants to discontinue it, and formally dismissed the action. No application for an injunction pendente lite was made. The complainant took no further proceedings against the firm. The present action was commenced in March, 1904.

Treating the case as though Ross & Co. were the defendants, it is one for the application of the rule that a party cannot invoke the stringent remedy of preliminary injunction who has been guilty of long and unexcused laches in asserting his rights. Having delayed for more than 10 years to ask for such a remedy, it is fair to assume that -the complainant will not suffer material injury by being required to wait until the controversy is heard upon its merits.

It is suggested, as excusing the laches, that, as both the complainant and Ross & Co. were aliens, the former suit would have failed for want of jurisdiction. While this may be true, the suggestion does not appear to have occurred to either party while the suit was pending; but the parties contested upon the merits of the controversy, and, if complainant was really influenced by it, there was no reason why the controversy could not have been carried on in the state courts.

We are of the opinion that a preliminary injunction should not have been ordered, and the order is accordingly reversed.