The plaintiffs’ right to maintain this action'lsjbased on the theory ' that the use of the label by defendants is an unfair and dishonest competition in trade on their part, In other words, the plaintiffs in effect claim that the defendants, by the use of the label, are fraudulently attempting to sell their goods ás the goods of the plaintiffs. To entitle-.the .plaintiffs -.to recover they must riot' only allege in their complaint, but they must prove upon the trial, that the resemblance of the labels is not only calculated to, but that the same does in fact) deceive the ordinary buyer. This is precisely what the Court of Appeals declared in Fischer v. Blank (138 N. Y. 252) was necessary to be established to entitle a' plaintiff to recover in an action of this character. Judge Maynard, in delivering the opinion of the court-in that case, in which all of the judges, concurred,'said “ the true test, we think, is whether the resemblance is such that it-is calculated to deceive, and does in fact deceive the ordinary buyer-making his-purchases under the ordinary conditions- which .prevail in the conduct of the particular traffic to which the controversy relates.” In the case now before us no proof -whatever was pre- - sen ted to' the Special Term that- any one had in fact been deceived by the defendants’ use óf the label, and we have no right in the absence of proof to, infer that.'.they will be. . .
-For this reason the learned justice at Special Term was right in denying the motion.
- Order reversed, with ten' dollars costs and disbursements, and motion granted, with ten dollars costs to abide event.