Kram v. Shyev

107 N.Y.S. 539 | N.Y. Sup. Ct. | 1907

Giegerich, J.

This is an application for an order restraining the defendant from listing the name of the plaintiff in any combination with his own name in any directory, or otherwise employing the plaintiff’s name in connection with the business carried on by the defendant. The plaintiff and the defendant, up to June 1, 1903, were copartners dealing in bonnet wire under the firm name “ Kram & Shyev,” on which day the defendant purchased the good-will and assets of the business, and for some time thereafter he used as a business sign the following: “ Joseph Shyev, Successor to Kram & Shyev,” and also used the same style upon his stationery. About a year after the dissolution he discontinued all reference to the former firm of Kram & Shyev, both upon his signs and stationery, using his own name alone; but he did continue to have inserted in the telephone directory the following: “Kram & Shyev, Bonnet Wire/’ with his street and telephone number added. He claims that this is only for the convenience of a few customers of the old firm who might occasionally forget the change in the name of the business. The plaintiff carries on a business in the same line and in the telephone directory his name appears third from that of the old firm name, with a designation of the same line of business, namely, bonnet wire. That the defendant, as purchaser of the good-will and assets of the copartnership, would be entitled to continue to use the firm name upon compliance with the statute (Laws of 1897, chap. 420, §§ 20, 31) is established by Slater v. Slater, 175 N. Y. 143. On behalf of the defendant it is insisted, first, that the acts complained of do not constitute a continuance of the copartnership name within the meaning of the statute; and, second, even if they do, the plaintiff is not entitled to complain, as the sections of the statute in question were enacted solely for the benefit of persons giving credit to the assumed firm. This does not seem to be the fact, however. In Slater v. Slater, just cited, the court observed that the purchaser is required by the statute to make the real facts a matter of public record from which it will appear who the members of the firm are and that no legal liability can attach to the survivor from any dealings between the purchaser of the firm name and third parties or the public. The court further observed that the survivor eordd not be held liable in any sense for the debts or obligations of the parties who transact business under the firm name, and thát the principal purpose of the statute .was to render such a result impossible. From this I think it is apparent that the outgoing partner is so interested in the matter that, for the purpose of being freed from any liability that might otherwise attach .to him in favor of third persons who deal with the plaintiff under the old firm name, he is entitled to insist that the defendant shall either cease hereafter to list his telephone and business number under the style of the former firm or comply with the statute. If proof is submitted within five days after the publication of this memorandum of such compliance the motion will he denied, without costs; otherwise it will he granted, with ten dollars costs.

Ordered accordingly.