82 N.J. Eq. 204 | New York Court of Chancery | 1913
The final decree in this case enjoins the defendant from engaging in the enterprise of a yacht club under its corporate title, and from using a certain pennant, the former being so near alike in sound and appearance, and the other in appearance, to the corporate title and pennant of the complainant, as to mislead the public to the detriment of the complainant’s undertaking. The decree also directs a writ of injunction restraining the defendant in the language of the decretal injunction. The issuance of the. writ was stayed by the filing of a notice of appeal, as provided by rule 150 of this court, Application is now made non obstante for the writ. It is resisted on the ground that the enforcement of the writ will destroy the subject-matter of the appeal. This plea is not available on this motion.
Following the broad doctrine laid down in Pennsylvania Railroad Co. v. National Docks Railroad Co., 54. N. J. Eq. (9 Dick.) 647, which led to much confusion of the bar and occasioned considerable construction by the bench, before it was confined to its proper scope as illustrated by the chancellor in Ashby v. Yetter, 78 N. J. Eq. (8 Buch.) 173, the legislature, in 1902, defined the status of an injunction pending on appeal and fixed the practice as follows:
“No appeal taken from an order or decree granting an injunction shall suspend or modify the operation of the injunction without an order of the chancellor or of the court of errors and appeals for that purpose, and such suspension or modification shall extend only so far as may be necessary to preserve the subject of the appeal, and shall not in any case be allowed to destroy the right established or protected by the order or decree appealed from.” 1 Comp. Stat. p. 451.
The provisions of rules 118 and 150 of this court, that process shall not issue on a final decree within ten days of the filing thereof, and not thereafter, if within the ten days an appeal shall be taken, unless otherwise ordered by this court, or the court of errors and appeals, are concordant with the statutory regulation. These merely give to a defeated litigant opportunity to accommodate himself to the situation created by the decree, and to a review thereof by the appellate court, if he is dissatisfied.
It is objected that the issuing of the writ will destroy the subject-matter of the appeal. This is a misconception. A compliance with its admonitions may have that effect, but the defendant may have relief by pursuing the course herein indicated.
Treating the objection as available at this time, I regard it as being without merit. To prevent the defendant, pending an appeal, from using an identifying title and pennant inhibited by the decree, will not destroy the subject-matter of the appeal. The defendant, as a eorjiorate body, and its enterprise as a yachting club, and its pastimes and pursuits are not interfered with. The