Mackenzie v. Soden Mineral Springs Co.

18 N.Y.S. 240 | N.Y. Sup. Ct. | 1891

Truax, J.

A motion having heretofore been made on behalf of the plaintiff for an order of injunction during the pendency of this action, or until the further order of the court, now, on reading and filing the complaint herein, verified the 17th day of July, 1891, and the affidavits of Simon Sterne, verified the 16th day of June, 1891, Clarence C. Eiee, M. D., verified the 17th day of June, 1891, Morell Mackenzie, verified the 30th day of June, 1891, and of Norbert Heinsheimer, verified the 9th day of July, 1891, in support, and the ■affidavits of Moritz Eisner, verified the 22d day of June, 1891, and of Joseph Mendelson, verified the 23d day of June, 1891, in opposition, from which it .satisfactorily appears to me that the plaintiff demands and is entitled to ■an injunction against the said defendants restraining the commission and ■continuance of all acts which during the pendency of the action would produce injury to the plaintiff, to-wit, publication of certain advertisements, circulars, and wrappers of a certain proprietary medicinal preparation known as “Soden Mineral Pastilles," which advertisements, circulars, and wrappers contain copies of alleged letters of plaintiff commending said mineral pastilles, and from using the name of plaintiff without his consent as a guaranty of the merit of said medicinal preparation, and that the commission or continuance of this act would produce injury to the plaintiff, in that the plaintiff ■would thereby suffer damage to his professional standing and income as a ■physician, and an infringement of his right to the sole use of his own name, •and that such use of plaintiff’s name and reputation, contrary to his wish, is, under the circumstances in the complaint and affidavit detailed, misleading ■and prejudicial to the public interest, and the plaintiff having given an un-dertaking in the sum of $500, as required by law, and after hearing Simon Sterne, Esq., of counsel for the plaintiff, and Melville Egleston, Esq., of counsel for defendant Eisner & Mendelson Company, on motion of Simon Sterne, Esq., attorney for the plaintiff, it is hereby ordered that the defendant the Eisner & Mendelson Company and the defendant the Soden Mineral Springs Company, Limited, their agents, attorneys, servants, and all others acting in ■aid or assistance of said defendants, and each and every of them, be and they are hereby restrained, prohibited, and enjoined, under the penalties of the Jaw prescribed, from publishing any letter or part of a letter written or alleged to have been written by plaintiff, and from publishing or advertising ■any statement or opinion at any time expressed or alleged to have been expressed by plaintiff, regarding Soden Mineral Pastilles, or any other medicinal preparation, and from in any manner using or publishing plaintiff’s name .in their (defendants’) business, or in furtherance or aid thereof, during the pendency of this action, and until the final judgment herein shall have been duly entered, except that the said defendant the Eisner & Mendelson Company may, during the pendency of this action, and until the entry of final Judgment herein, publish true and correct extracts from the published writings of Sir Morell Mackenzie, the plaintiff, or writings by him authorized by him to be published, giving the date and source of such publication, but without using the signature of the plaintiff, or a pretended fac simile thereof, and ■only in such a way as not to convey the impression that the said extracts had been addressed in the form of a letter to the defendants, or either of them; ■and that the defendant the Eisner & Mendelson Company pay to the plaintiff’s attorney $10, costs of this motion.