SEC. 379. Reconfining persons discharged upon writ.

380. Concealing persons entitled to writ of deliverance. 381. Innkeepers and carriers refusing to receive guests and

§356. Practice of medicine, etc., without license.— Repealed. Ch. 647 of 1887

§357. Acts of intoxicated physicians.-A physician or surgeon, or person practicing as such, who, being in a state of intoxication, administers any poison, drug or medicine, or does any other act as a physician or surgeon, to another person, by which the life of the latter is endangered, or his health seriously affected, is guilty of a misdemeanor.

See 200, supra.

$358. Willfully poisoning food, etc.-A person who willfully mingles poison with any food, drink or medicine, intended or prepared for the use of human beings, and a person who willfully poisons any spring, well or reservoir of water, is punishable by imprisonment in a state prison not exceeding ten years, or in a county jail, not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment. See § 217, sub. 2, 218, sub. 1, supra.

§359. Overloading passenger vessel.-A person navigating a vessel for gain, who willfully or negligently

receives so many passengers, or such a quantity of other lading on board the vessel, that by means thereof it sinks or is overset or injured, and thereby the life of a human being is endangered, is guilty of a misdemeanor. See197, supra.

§ 360. Unauthorized pressure of steam.-A person who applies, or causes to be applied, to a steam boiler a higher pressure of steam than is allowed by law, or by the inspector, officer or person authorized to limit the pressure of steam to be applied to such boiler, is guilty of a misdemeanor. See § 198, supra.

§ 361. Generation of unsafe amount of steam.— A captain or other person having charge of the machinery or boiler of a steamboat, used for the conveyance of passengers, in the waters of this state, who from ignorance or gross neglect, or for the purpose of increasing the speed of the boat, creates, or causes to be created, an undue and unsafe pressure of steam, is guilty of a misdemeanor. See § 198, supra.

§ 362. Mismanagement of steam boilers.—An engineer or other person having charge of a steam boiler, steam engine, or other apparatus for generating or employing steam, employed in a railway, manufactory, or other mechanical works, who, willfully or from ignorance or gross neglect, creates or allows to be created such an undue quantity of steam as to burst the boiler, engine or apparatus, or cause any other accident whereby human life is endangered, is guilty of a misdemeanor.

See 198, supra.

§363. Fictitious copartnership names.-A person who transacts business, using the name, as partner, of one not interested with him as partner, or using the designation "and company," or "& Co." when no actual partner or partners are represented thereby, is guilty of a misdemeanor. But this section does not apply to any case, where it is specially prescribed by statute that a partnership name may be continued in use by a successor, survivor, or other person.

O'Toole v. Garvin, 1 Hun, 93; Swords v. Owen, 43 How. Pr., 184.

§ 364. Offenses against trade-marks.—A person who, knowingly, in a case where provision for the punishment for the offense is not otherwise specially made by statute:

1. Falsely makes or counterfeits a trade-mark; or

2. Affixes to any article of merchandise, a false or counterfeit trade-mark, knowing the same to be false or counterfeit, or the genuine trade-mark, or an imitation of the trade-mark of another, without the latter's consent; or

3. Sells, or keeps or offers for sale, an article of merchandise to which is affixed a false or counterfeit trademark, or the genuine trade-mark, or an imitation of the trade-mark of another, without the latter's consent; or

4. Has in his possession a counterfeit trade-mark, knowing it to be counterfeit, or a die, plate, brand or other thing for the purpose of falsely making or counterfeiting a trademark; or

5. Makes or sells, or offers to sell or dispose of, or has in his possession with intent to sell or dispose of, an article of merchandise with such a trade-mark as to appear to indicate the quantity, quality, character, place of manufacture or production, or persons manufacturing or producing the article, but not indicating it truly; or

6. Who knowingly sells, offers or exposes for sale, any goods which are represented in any manner, by word or deed, to be the manufacture or product of any person, firm or corporation, other than himself, unless such goods are contained in the original packages and under the labels, marks or names placed thereon by the manufacturer who is entitled to use such marks, names, brands or trademarks; or

7. Who shall sell or shall expose for sale any goods in bulk, to which no label or trade-mark shall be attached, and shall by representation, name or mark written or printed thereon, represent that such goods are the production or manufacture of a person who is not the manufacturer;

Is guilty of a misdemeanor. [A'MD CH. 45 OF 1889.]

See Code, Cr., Proc, § 56; Low v. Hall, 47 N. Y., 104.

§ 365. "Article of merchandise" defined.-The expression "article of merchandise," as used in this title, signifies any goods, wares, work of art, commodity, compound, mixture, or other preparation or thing, which may be lawfully kept or offered for sale.

$366. "Trade-mark" defined.-A "trade-mark" is a mark used to indicate the maker, owner or seller of an article of merchandise, and includes, among other things, any name of a person, or corporation, or any letter, word, device, emblem, figure, seal, stamp, diagram, brand, wrapper, ticket, stopper, label, or other mark, lawfully adopted by him, and usually affixed to an article of merchandise, to denote that the same was imported, manufactured, produced, sold, compounded, bottled, packed, or otherwise prepared by him; and also a signature or mark, used or commonly placed, by a painter, sculptor, or other artist, upon a painting, drawing, engraving, statue, or other work of art, to indicate that the same was designed or executed by him.

§ 367. "Affixing" defined.-A trade-mark is deemed to be affixed to an article of merchandise, when it is placed in any manner in or upon either

1. The article itself; or

2. A box, bale, barrel, bottle, case, cask, or other vessel or package, or a cover, wrapper, stopper, brand, label, or other thing, in, by, or with which the goods are packed, inclosed, or otherwise prepared for sale or disposition.

§ 368. Trade-marks deemed "counterfeited ".—An imitation of a "trade-mark" is that which so far resembles a genuine trade-mark as to be likely to induce the belief that it is genuine, whether by the use of words or letters, similar in appearance or in sound, or by any sign, device or other means whatsoever.

§ 369. Refilling or selling stamped mineral water bottles, etc.-Any person engaged in making, bottling, packing, selling or disposing of milk, ale, beer, cider, mineral water or other beverage, may register his title as owner of a trade-mark by filing with the secretary of state and the clerk of the county where the principal place of business of such person is situated, a description of the marks and devices used by him in his business, and in case the same has not been heretofore published according to the laws existing at the time of publication, causing the same to be published in a newspaper of the county, three weeks daily, if in the city of New York or Brooklyn, and weekly if in any other part of the state; but no trademark shall be filed which is not and cannot become a lawful trade-mark or which is merely the name of a person, firm or corporation unaccompanied by a mark sufficient to distinguish it from the same name when used by another person. After such registration the use without the consent of the owner of the trade-mark, so

described, or the filling of any bottle, siphon, barrel, vessel or thing for the purpose of sale, or for the sale therein, of any article of the same general nature and quality which said bottle, siphon, barrel, vessel or other thing before contained, without the obliteration or defacement of the trade-mark upon it, when such trade-mark can be obliterated or defaced without substantial injury to the bottle, siphon, barrel, vessel or other thing so as to prevent its wrongful use, shall be deemed a misdemeanor. [Am'd ch. 513 of 1885.]

Mullens v. Peo., 24 N. Y., 399.

§ 370. Keeping such bottles with intent to refill or sell them.-Any person engaged in the business of buying and selling bottles, siphons, barrels or other vessels or things, who shall, with intent to defraud the registered owner of a trade-mark, knowingly sell or offer for sale any bottle, siphon, barrel, vessel or other thing to any person, who he has reason to believe wrongfully intends to use the trade-mark upon it, or to fill such bottle, siphon, barrel, vessel or other thing in violation of section three hundred and sixty-nine, shall be deemed guilty of a misdemeanor.

§ 371. Search for bottles.-Whenever a registered owner of a trade-mark, or his agent, makes oath before a magistrate that he has reason to believe and does believe, stating the grounds of his belief, that a bottle, siphon, barrel, vessel or other thing to which is affixed a trade-mark belonging to him is being used or filled, or has been sold or offered for sale, by any person whomsoever, in violation of the preceding sections, then the magistrate may issue a search warrant to discover the thing and cause the person having it in possession to be brought before him and may thereupon inquire into the circumstances, and if on examination he finds that such person has been guilty of the offense charged, he may hold the offender to bail to await the action of the grand jury, and the offender shall also be liable to an action on the case for damages for such wrongful use of such trade-mark at the suit of the owner thereof, and the party aggrieved shall also have his remedy according to the course of equity to enjoin the wrongful use of his trade-mark, and to recover compensation therefor in any court having jurisdiction over the person guilty of such wrongful use.