255 A.D. 827 | N.Y. App. Div. | 1938
Order affirmed, with ten dollars costs and disbursements. Memorandum: Defendant-appellant’s motion to move the place of trial from Oneida county to New York county was denied. The action is to restrain alleged unfair business competition, particularly in the use of a trade name so similar to plaintiff’s that it is calculated to deceive customers. The five witnesses, in New York, whom defendant says he will call, are customers who Will testify that defendant was not guilty of deceitful conduct in his dealing with them. This is purely negative testimony and does not meet the issue. Plaintiff’s case does not depend upon proof that any customer was actually deceived. The question will be whether or not defendant’s practices and choice of a trade name are such as are reasonably calculated to deceive. (Colman v. Crump, 70 N. Y. 573; Ford Motor Co. v. Cady Co., 124 Misc. 678; affd., with modification, 214 App. Div. 838.) All concur. (The order denies defendant’s motion for change of venue.) Present — Sears, P. J., Crosby, Lewis, Cunningham, and Taylor, JJ.j