109 N.Y.S. 105 | N.Y. App. Div. | 1908
The complaint alleges that one Mapoleon Sarony prior to the 9th. of Movember, 1896, was engaged in the-business under the trade name of “ Sarony ” of taking, making and vending photographic portraits for compensation, and that his work became widely and most favorably, known in the community and enjoyed the highest artistic reputation; that in consequence thereof the said Sarony had established an extensive and highly profitable' patronage and business from the public at large of very great commercial value, and the trade name “ Sarony ” had become known fai;. and wide as the symbol of photographic portraiture by said Mapoleon Sarony, and was widely and" extensively advertised ; that on the 9th day of Movember, 1896, the said Sarony died ; that his last will and testament was admitted to probate by the surrogate and letters testamentary were issued to his executor, Otto Sarony; that the said Otto Sarony,
1 think this complaint sets forth a good cause of action, based as' it is upon unfair competition in business. There can be no question, under these facts alleged, but that Napoleon Sarony when lie died had established a business to which there was^a good will attached, which included the use of the name “ Sarony,” and which became an asset of his estate. His executor, Otto Sarony, transferred that to the plaintiff’s assignor, and the estate received, it must be assumed, the value of the use of the name “ Sarony ” as a trade mark. The plaintiff, therefore, acquired the property right to use the name “ Sarony ” as a part of his business. It was a right attached to his business which he had purchased, and lie is entitled to be protected in the enjoyment of that property as against any one using'the name “ Sarony ” without authority. The defendant Marceau then procured from the executor of' Napoleon Sarony an agreement, authorizing him to use the name “ Sarony ” in the business of making photographs. The object of this transaction is perfectly apparent. It was not an attempt of a man to transact business in his own name, or to transfer to another the good will of an ' established business. Otto Sarony did not intend to go into business using his own name, and defendant Marceau was in the photographic business. Marceau, not satisfied with doing business under ' his own name,/wished to conduct it under the name of “ Sarony,” and the only object lie could have was thus to secure some Of the business of the plaintiff. The executor of Napoleon Sarony, having-got all he could from the plaintiff’s assignor for the use of the name, seemed to have no objection to selling again to another the same right, which' would necessarily seriously impair or tend to destroy what he had sold as executor to the plaintiff’s assignor; and the desire of the defendant Marceau to acquire the right to use the name could only be for the purpose of getting away from the plaintiff or his assignor the benefit which had accrued to them by reason
I think, therefore, the judgment should be reversed, with costs, the demurrer overruled, with costs, with leave to the defendant to withdraw the demurrer and to answer.
Patterson, P. J., McLaughlin, Clarke and Scott, JJ., ' concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.
See Penal Code, § 363b, added by Laws of I960, chap. 216.— [Rep,