*861Action for an injunction restraining defendants from engaging in unfair competition with plaintiff in the manufacture of lipsticks, the solicitation of its customers, and the imitation of plaintiff’s lipstick containers. Appeal by defendants from an interlocutory judgment. Interlocutory judgment modified by adding thereto a provision for the dismissal of the complaint as to defendant Constantine Tsirkas, without costs; by inserting after the words “ defendants ” or “ defendants and each of them,” wherever they appear in the judgment, the words “ (other than defendant Constantine Tsirkas);” and by inserting before the word “ containers ” in the fourth line of the third decretal paragraph, the words “ black and gold.” As so modified the judgment is unanimously affirmed, with costs to respondent, payable by appellants other than Constantine Tsirkas. Findings of fact and conclusions of law inconsistent herewith are reversed and new findings and conclusions will be made. From the record it clearly appears that the defendant corporation is using plaintiff’s formula in the manufacture of its lipstick, and the Special Term was justified in granting an injunction. The injunction, however, should not run against Constantine Tsirkas, as there is no proof whatever to implicate him. He does not own any stock in the defendant corporation, is not a director or officer thereof, and has never been employed by it. The fact that he owns stock in the plaintiff corporation and is a brother of the other two individual defendants is not material. The red or pinkish-red containers may not be mistaken for those of the plaintiff. They are of different sizes, different degrees of thickness, and in clear letters bear the name “ Zande.” Present — Lazansky, P. J., Hagarty, Carswell, Davis and Adel, JJ. Settle order on notice.
