69 N.Y. 212 | NY | 1877
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *214 Both the Special and General Terms have decided that the words and letters on the altered sign are so arranged as to deceive the public, and were so intended. The initial letters "J.S." being placed over the word Devlin, and flanked by the No. of the store of defendant, it is said violates the injunction not to use the defendant's christian and surname, in a manner calculated to deceive, and requiring that they must be conjoined. The facts will *215 justify this inference and in such a case the general rule is for this court to adopt the conclusions of the court below. The initials are not strictly conjoined to the surname, and it is probable that "Devlin's clothing" is still the distinguishing feature of the sign which the defendant was forbidden to use, and that from the situation of the initials between the figures on the top of the sign they would not or might not be understood to have been intended as a part of the name. The defendant may have intended to comply with the injunction, but the courts below think that he has failed to do so, and within the rule adverted to we feel constrained to follow their finding of fact, but as we concur with the learned judge, who delivered the opinion at General Term, that the decision "sails very close to the wind," we are inclined to affirm the order without costs to either party as against the other in this court.
All concur except EARL, J., dissenting.
Order affirmed.