the control of such court for the purposes of the case as hereinbefore provided. If the ship shall have already been libeled, or sold, the proceeds shall represent the same for the purposes of these rules." Under this rule the shipowner who has suffered from any loss or destruction by the masters and others of any property shipped on his vessel or from any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred without his privity or knowledge, and who therefore deems himself entitled to the benefit of the statute, may file with the District Court for the proper district a libel or petition setting forth the facts and circumstances under which the loss occurred and on which he claims a limitation of liability. This the libelant did in the case at bar. It filed a petition for limitation of liability in this district, which was the natural and proper thing to do, because the Thames Towboat Company is a Connecticut corporation, its principal place of business is at the port of New London, and the tug Bess, according to claimant's libel, was at the port of New London at the time the libel was filed. An appraisal of the Bess was made, and its liability was limited to the appraised value, to wit, $25,000. A bond was filed for that amount with sufficient sureties and approved by this court, and an order went forth for the issue, service, and publication of a monition citing all persons to appear who claim damage by reason of the loss. A temporary injunction was issued, restraining the commencement of any new suits or actions against the petitioner or his vessel and causes of action arising out of this loss, and also restraining the further prosecution of the libel commenced in the Eastern district of New York. In accordance with White v. Island Transportation Co., 233 U. S. 346, 34 S. Ct. 589, 58 L. Ed. 993, and Strong v. Holmes (C. C. A.) 238 F. 554, the petition in the case at bar was properly filed. Judge Rudkin, speaking for the Circuit Court of Appeals, Ninth Circuit, on page 556, said: "The District Court of any jurisdiction in which the owner or owners may be sued has jurisdiction of the limitation proceedings." It may even be filed before any suit is brought against the owner. Ex parte Slayton, 105 U. S. 451, 26 L. Ed. 1066. There the ship was not libeled, nor was the owner sued. The vessel was bound on Lake Michigan from Grand Haven to Chicago, and she sunk. Some portions of the wreck were washed ashore in Michigan. The libel for limitation of liability was filed in the District Court for the Northern District of Illinois. A trustee was appointed, and portions of the wreck and pending freight were transferred to him. The Supreme Court held that the District Court for the Northern District of Illinois had jurisdiction. In the case of the Rochester (D. C.) 230 F. 519, Judge Hazel held that the owner, notwithstanding the release of the vessel by an undertaking, was entitled to limitation of liability, citing The City of Norwich, 118 U. S. 468, 6 S. Ct. 1150, 30 L. Ed. 134. In Re Morrison, Petitioner, 147 U. S. 14, on page 33, 13 S. Ct. 246, 253 (37 L. Ed. 60), Mr. Justice Blatchford, said: "Under rule 57 in admiralty [now rule 54] prescribed by this court (130 U. S. 705), the Dimock not having been libeled to answer for the loss resulting from the collision, and no suit therefor having been commenced against her owner, the proceedings were instituted lawfully in the District Court in Massachusetts, that being the district in which the instituted, and she being at that time subject vessel was at the time the proceedings were to the control of that court for the purposes of the case, as provided by rule 54 (137 U. S. 711) and rules 55 and 56 (13 Wall. 13).” The authorities cited by counsel for damage claimant have had careful examination, but the facts in the cases cited are not similar to those in the case at bar. It seems clear on reason and authority that this court has jurisdiction of the subjectmatter and exclusive jurisdiction of the vessel as it was in this district, its home port, where the petition to limit liability was filed. It also has jurisdiction of the petitioner, as it is a Connecticut corporation. The damage claimant's motion to dismiss for lack of jurisdiction is denied. Decree accordingly. 21 F.(2d) 575 UNITED STATES v. BOSCARINO et al. 19 Sander street, Rochester, on an affidavit District Court, W. D. New York. April 29, of Major Hart, a prohibition agent. 1927. 1. Searches and seizures 3(4)-Facts, as distinguished from conclusions, must be alleged to justify issuance of search warrant (Const. Amend. 4). Under the Fourth Amendment to the Constitution of the United States, facts must be alleged upon which search warrant is issued, as distinguished from conclusions. 2. Intoxicating liquors 246-Private dwelling held immune from search for liquor without evidence of sale of liquor therefrom (National Prohibition Act [27 USCA § 39]). Private dwelling house, as such, held immune from search for liquor without evidence of sale of liquor therefrom, in view of National Prohibition Act, tit. 2, § 25 (27 USCA § 39 [Comp. St. § 101382m]), and search warrant authorizing such search must be vacated. 3. Criminal law 394-Evidence of seizure of liquor under illegal search warrant will be suppressed. Where search warrant was illegal, evidence of seizure of liquor thereunder will be suppressed, since it can afford no basis for unlawful possession or manufacture. 4. Intoxicating liquors 248-Affirmation of affiant for warrant authorizing search of outbuildings for liquor held to contain sufficient statement of facts (National Prohibition Act [27 USCA]). Affirmation of affiant for search warrant, stating he had reason to believe certain outbuildings contained alcohol in violation of National Prohibition Act (27 USCA [Comp. St. § 101384 et seq.]), referring to odor and fumes coming therefrom, and stating that man was observed rolling alcohol container from building, held to contain sufficient statement of facts. 5. Intoxicating liquors 249-Warrant authorizing search of premises, identified by street and number, for liquor, authorized search of outbuildings not accorded protection guaranteed to private dwellings. Warrant authorizing search of premises identified by street and number, which were dwelling houses, held to authorize search for liquor in outbuildings which were not entitled to protection guaranteed by Constitution to dwell ings. The affidavit was filed with the commissioner, and a copy was attached to the warrant directed against No. 19 Sander street, and, as to the other warrants, sufficient references are made to the facts. The Bay street premises consist of two stores, a meat market, and an importer's store, with an entrance to an upper flat around the corner of the building at No. 5 Sander street. The defendant Alfio Boscarino and his family concededly occupied the upper flat and a bedroom downstairs. There is a garage and barnlike building in the rear, connected with No. 19 Sander street by another structure. The facts upon which probable cause was based for believing that the indicated adjoining premises on Sander street, buildings to the rear of the Bay street building, were used for violation of the National Prohibition Act (27 USCA [Comp. St. § 101384 et seq.]), are: That on August 14, 1926, as the affiant passed the Bay street building, he smelled fumes of alcohol coming from the rear, and at the same time observed five or six five-gallon cans, commonly used, he swore, as alcohol containers, standing inside the screen door at No. 5 Sander street. On August 16th, at about 1 o'clock in the early morning, he again visited the locality, watched the premises, remaining until 4 o'clock, and observed that the rear of part of the Bay street building was lighted and the shades drawn, and that a truck was standing in the rear and a man removing cans from the truck into the building; that a touring car passed slowly along the street several times, "apparently patrolling the block." He again detected the odor of cooking denatured alcohol, coming this time from a barnlike structure in the rear of No. 19 Sander street, said to be owned by Mrs. Boscarino, a 22-story frame building used as a private dwelling (see testimony before commissioner). On August 17th, in the forenoon, he again visited the locality, saw a stationary truck at the rear building, and a man rolled a black drum, commonly used as an alcohol container, out of a separate building in the rear of No. 15 Sander street, located a few feet from the main building. That he had several years' experience in investigating alcohol and corn whisky cases, and that the odor of alcohol and fumes of cooking denatured alcohol were familiar to him. The warrant directing search of No. 15 Sander street specifies the visit of Major Hart to the premises on August 14th, and the odor of fumes emitted from the side door of No. 258 Bay street, together with the presence of the alcohol containers. The ford no basis for unlawful possession or These were the material facts upon which the affiant based his belief that the rear buildings were used for violation of the National Prohibition Act, and upon which the warrant was issued. Following the search and seizure, there were hearings before the United States commissioner, on motion to vacate the warrants on the ground that there was no probable cause for their issuance, and that the premises searched were private dwellings. Facts were developed at the hearing which may properly be considered. Steele v. U. S., 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757. [1] For convenience, the validity of the various warrants will be considered separately. The rooms at No. 5 Sander street are not used for business purposes but solely for dwelling, and have no connection with the stores fronting on Bay street. It does not appear that there are any entrances from either of the stores leading to the dwelling apartments. It is, of course, axiomatic that, under Amendment 4 of the Constitution of the United States, facts must be alleged upon which the warrant is issued as distinguished from conclusions. Though conclusions were injected as to some features, the facts incorporated in the information, and later adduced at the hearing before the commissioner, with relation to the emitted fumes of alcohol from the entry to Alfio Boscarino's dwelling, the containers behind the screen door, of the kind wherein alcohol is commonly transported, no doubt created a belief that intoxicating liquor was unlawfully possessed. [2, 3] The important question, however, is whether a private dwelling, used as such, was not immune from search without evidence of sale of liquor therefrom. Section 25 of title 2 of the National Prohibition Act (27 USCA § 39 [Comp. St. § 10138/2m]) provides "that no search warrant shall issue to search any private dwelling occupied as such, unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose, such as a store, shop, saloon, restaurant, hotel, or boarding house." The apartments in question concededly were neither used for dealing in intoxicating liquor, nor was any part used for any business purpose, and therefore the search warrant was illegal and must be vacated and the evidence of seizure suppressed, since it can af [5] The question narrows down to this, Was the search of the rear buildings forbidden because the premises identified by street and number were dwelling houses? The private dwellings concededly were not searched. The search of the separate rear buildings revealed large quantities of alcohol in drums, distilled alcohol in cases and bottles, fit for beverage purposes, instrumentalities of one kind or another, for manufacturing colored distilled spirits, including heaters, tanks, boilers and stills. The buildings searched were obviously used for the fabrication of distilled spirits to be used for commercial purposes. These outside buildings did not come within the curtilage of the private dwellings, in view of their use, and therefore cannot be accorded the same protection guaranteed by the Constitution to private dwellings, and I hold that the searches and seizures at Nos. 15 and 19 Sander street were not unreasonable. Several adjudications are relied upon by defendants, but I think that they are distinguishable. In Temperani v. U. S., 299 F. 369, it was 21 F.(2d) 577 ruled, in the Ninth Circuit, that odor com- MOLINE PRESSED STEEL CO. v. DAVIS & ing from a garage underneath a one-story VOETSCH, Inc. 1927. dwelling, did not justify an arrest for an of- District Court, S. D. New York. April 29, fense committed in the presence of the officers, it appearing that the offender was not present in the garage when the search was made. In U. S. v. Yahrstorfer (memorandum decision, not for publication), a decision by this court, the warrant was against the entire premises; the barn in the rear not being designated as the place to be searched. The government's contention that the warrant authorized the searches of the rear outbuildings comes within the principle announced in Monaghan v. U. S., 5 F.(2d) 424. There the Circuit Court of Appeals for the Fifth Circuit upheld the search of a shed or outhouse on premises occupied as a dwelling house; the charge being the liquor was unlawfully manufactured on the premises, and ruled that it did not constitute an invasion of a private dwelling, occupied as such, to search the rear shed, inasmuch as the affidavit aimed at, and the warrant authorized, the search, not of a private dwelling, but simply the shed or outhouse which, in its opinion, was searchable under the general provision of section 25 of title 2. This decision, I think, has application to the instant case. And in U. S. v. Goodwin (D. C.) 1 F.(2d) 36, the learned court said that, where probable cause is shown for believing that liquor is unlawfully manufactured in a private dwelling, the burden is on the party seeking to quash the warrant to show that the dwelling was not used for the purpose charged. In U. S. v. Mitchell (D. C.) 12 F. (2d) 88, the search of an attachment at the back of defendant's residence was upheld, and that the children of the accused had at times slept in the lean-to part did not make it a private dwelling, used and occupied as such, and the lean-to of the main building was not immune from search. It is not necessary to pass upon the correctness of the two last-mentioned decisions, since the private dwellings in question were not invaded, the search being limited to rear buildings. Other adjudications cited by defendant are not so close, and accordingly may be passed without remark. An order may be entered holding that the search and seizure of the private home of the defendants in the Bay street house, or at No. 5 Sander street, was illegal, and the evidence must be suppressed; but, as to Nos. 15 and 19 Sander street, the motion to quash is denied. Bundle of books and papers seized must be returned. 21 F. (2d)-37 1. Trade-marks and trade-names and unfair competition 93(3)-Evidence held not to show that defendant's toys intentionally simulated plaintiff's products to deceive public. In suit for unfair competition in sale of sheet metal toys made in replica of automobile trucks, express wagons, tank trucks, steam derricks, etc., evidence and affidavits held not to show that defendant simulated plaintiff's products to deceive ordinary observer into belief that in purchasing defendant's toys he was purchasing plaintiff's toys, any similarity resulting from nature of articles themselves. 2. Trade-marks and trade-names and unfair competition 70(1)—That unpatented toys were novel and became associated by public with plaintiff as source held not to entitle plaintiff to prevent others manufacturing and selling similar toys. That sheet metal toys manufactured by plaintiff were of novel construction and were much stronger than the toys previously on the market, and that because of their novelty such toys became associated in the public mind with plaintiff as source, held, in absence of patent rights, not to give plaintiff any right to prevent others from manufacturing and selling similar toys, where there was no attempt to palm off such toys as plaintiff's product. In Equity. Suit by the Moline Pressed Steel Company against Davis & Voetsch, Inc. On plaintiff's motion for preliminary injunetion. Motion denied. Weill, Wolff & Satterlee, of New York City (George I. Haight, of Chicago, Ill., of counsel), for plaintiff. Edward A. Kenney and Lucius B. Weymouth, both of New York City, for defend ant. THACHER, District Judge. This is a motion for preliminary injunction in a suit for unfair competition in the sale of toys. The plaintiff, since 1921, has been engaged in manufacturing and selling throughout the United States toys which are made in replica of automobile trucks, express wagons, tank trucks, steam derricks, etc. It is claimed that these toys, strongly constructed of sheet metal and designed to be operated or drawn by hand, were first introduced on the American market by the plaintiff, and that because of the novelty and strength of their construction there has been an increasing demand for such toys, which became known to the purchasing public as the product of the plaintiff's manufacture. They have been sold under the distinctive trade-name "Buddy L.'" Prior to March, 1924, the defendant, from similarity of construction, are even a jobber of toys, was engaged in selling toys for the plaintiff on commission; but at or about that date differences arose between the parties, and their relations were severed. Thereafter the defendant made arrangements with another toy manufacturer for the manufacture of similar toys, which it has sold under the distinctive trade-name "Sturditoy." [1] Suit is founded upon a charge of unfair competition, in that the defendant's toys are . constructed and painted in simulation of the plaintiff's toys, so as to lead the ordinary purchaser to believe that in purchasing them he is purchasing genuine "Buddy 'L'" toys, made and sold by the plaintiff. Claim of simulation is rested upon four types, namely, an express wagon, a tank truck, a dump truck, and a steam shovel. Upon the motion, a "Buddy "L'" and a "Sturditoy" of each type were submitted as exhibits. While certain features of construction are common to the "Buddy 'L'" and the "Sturditoys," visual comparison at once discloses that the features which distinguish the defendant's toys from those of the plaintiff in each case are quite sufficient to remove from the mind of the ordinary purchaser any impression that the toys are the product of the same manufacturer. Thus, while the two express wagons have black hoods and red frames and wheels, the bodies are of strikingly different colors and one is marked "Buddy 'L' Line" while the other is marked "American Railway Express." Furtherfore, the defendant's toy bears the legend, "Sturditoys, Made by Pressed Metal Co., Pawtucket, Rhode Island," and at the top of the radiator the name "Sturditoy" is prominently displayed. It appears from the defendant's affidavits that this model was actually copied from an American Railway Express truck. In the two oil tanks and in the two dump carts the hood and driver's seat are in black and the frame and wheels are in red; otherwise, there is no similarity apparent upon casual inspection, except such as would necessarily result in making two replicas of the same thing of about the same size. In the one case the oil tank is prominently marked "Sturdy Oil Co.," and in the other "Buddy 'L' Tank Line." Except for similitude in the coloring of the hood, the driver's seat, frame, and wheels, which are in black and red, the defendant's dump cart is quite distinctive in the coloring of its body, and has prominently displayed thereon "Sturditoy Construction Co." The steam shovels, aside more distinctive in appearance, and in the Such similarities as have been shown are not in dressing the articles for sale, but in the articles themselves. To enjoin the defendant from doing what is complained of would engross the business for the benefit of the plaintiff, who is entitled to no monopoly. The principles controlling decision in this case have been too often declared to require further discussion. Meccano, Ltd., v. Wanamaker (C. C. A.) 250 F. 450; John H. Rice & Co. v. Redlich Mfg. Co. (C. C. A.) 202 F. 155, 44 L. R. A. (N. S.) 1057; Miller Rubber Co. v. Behrend (C. C. A.) 242 F. 515. Motion denied. |