Union Paper Collar Co. v. Metropolitan Collar Co.

Brady, J. I consider the case of Lefferts v. Brampton (24 Howard Pr. 257), decided by the general term of this court, conclusive of the defendants’ right to the inspection [172] (demanded. In that case it was held that if facts and circumistanees are shown which warrant a preswnption that the book ■or document sought contains evidence which will prove, or tend .to prove, some fact which the party applying has to establish, ■the application for a discovery should be granted. In this mase, if the defendants can prove by the plaintiffs’ books that the Union collar was not sufficiently distributed by sales to have acquired any value as an article of merchandise, it cannot ¡be said that such fact may not tend to establish their defense, in ■connection with proof of their use of the trade mark at or about the same time. It would not be absolute proof against the plaintiffs’ claim, but would tend to affect it to the advantage ■ of the defense interposed in this action which is twofold : 1. That the trade mark had not become the symbol of a paper collar well known and valuable as an article of mer-chandise. 2. That -the defendants have the right to such mark by -prior or cotemporaneous use and sales by which their manufacture became them.celebrity and valuable. Order granted.