13 N.Y.S. 720 | N.Y. Sup. Ct. | 1891
The parties were engaged as copartners, prior to the 29th day of December, 1889, carrying on the essential oil and chemical and extract business, in the city of New York. The firm name was that of Rosenheim & Rosenfield, and they used and employed in their business the name of “The R. & R. Chemical Works.” This firm was dissolved on the day just stated, and an agreement was made by which the plaintiff took the entire stock of goods and merchandise and accounts of the firm then on hand, with power to collect and receive the debts due to the firm. A further agreement was made between these parties on the 29th of the same month for the dissolution of the firm and the regulation of their conduct in future business, carried on by each of them; audit was thereby agreed that the defendant sold and conveyed “to the said Rosenheim all his interest of every kind and nature in and to the said firm, good-will of said firm, all and every trade-mark in any way owned or acquired by the said firm of Rosenheim & Rosenfield, hereby intending to sell and convey all my interest, both at law and in equity, which I heretofore had, and now have, in the said firm of Rosenheim & Rosenfield, including, as aforesaid, all trade-marks and good-will of the said firm.” And the agreement contained the further stipulations or covenants that “it
The further objection has also been taken that so much of the agreement as by its terms transfers to the plaintiff the exclusive.right to employ this phrase in his future business was made in violation of section 363 of the Penal Code, forbidding any person from using in his business “the name as partner of one not interested with him as partner, or using the designation ‘ and company,’ or ‘ & Co.,’when no actual partner or partners are represented thereby, ” and declaring the act to be a misdemeanor; but this objection has no foundation in the facts of the case, for the phrase, “The R. & R. Chemical Works,” although identical in its two initial letters with the initial letters of the surnames of the parties, do not, as they have been used, and as it was intended by the agreement with the plaintiff they might be used, indicate that the business since carried on by him is that of a partnership with any other person. In their use, with exceptions stated to have been inadvertent and unintentional, they have been made to follow the name of the plaintiff as “sole proprietor,” of the R. & R. Chemical Works, which on its face carries the information that the use is not by a firm, but by an individual only; and no person, from a circular or advertisement in that form, could by any possibility be misled or induced to believe that the plaintiff was engaged in business with another person as a member of any business firm. The words, on the contrary, “sole proprietor,” clearly expressed the fact to be that the business was solely that of himself, and that the statute was in no respect violated. It is highly penal in its provisions, and cannot be extended, by the construction of its words, to include this case, which is not within them, or within any fair significance which can be assigned to them. Gay v. Seibold, 97 N. Y. 472; Lauferty v. Wheeler, 63 How. Pr. 488. The plaintiff was not personally engaged in the manufacture of the articles in which he dealt under these terms, neither was the firm itself, while it existed; but they were manufactured by and obtained from Maas & Waldstein, who were the manufacturers. They appear to have been well-known articles in the trade, and were dealt in by the firm, and the plaintiff as its successor, as such; and in those