46 N.Y.S. 165 | N.Y. App. Div. | 1897
Dissenting Opinion
Plaintiff and defendant are domestic corporations. The former was organized in January, 1895; the latter in February, 1896; and both are engaged in the manufacture and sale of mill and grain-cleaning machinery, at Silver Creek, in the county of 'Chautauqua. Charles E". Howes is the president of the defendant, and has been since its organization. It was organized with a capital stock of $100,000, $63,300 of which had been .actually paid *in and
Charles 27. Howes is the president of the defendant, and had a right to use his own name as a part of the business name of the defendant, unless it be clearly shown that, by such use, he was seeking to avail himself of the business reputation or standing of the plaintiff, or by such means to impose upon the public, including the customers of the plaintiff, and cause them to believe that the product of defendant was the product of the plaintiff. This rule applied with equal force to the use of the words “grain cleaner.” Those words truthfully indicate the business of the defendant. They are the only words which would truthfully express that business. They are general and descriptive terms, universally recognized and applied to the kind of machines manufactured by^the defendant. The plaintiff certainly is not entitled to the exclusive use of those two words. Others may employ them with as much truth as the plaintiff, in designating their business. The plaintiff is engaged in the manufacture of grain cleaners, it is true; but it does not use those words in its corporate name. Its chief objection is to the name “Howes” in the name assumed by defendant. The defendant, having a right to transact the business of manufacturing grain-cleaning machinery, has the right to use an appropriate name, and cannot be required to invent a new one. “The cogency of this reasoning is only to be affected by considerations which would lead to a conclusion that the similarity between the titles of the two corporations was such as to mislead the public or produce confusion.” In re United States Mortg. Co., 83 Hun, 573, 32 N. Y. Supp. 11.
This was the situation which confronted the learned justice who granted this order: It became incumbent upon him to compare the two names, to examine the complaint and answer and the affidavits of the respective parties, and decide whether the similarity between the titles of the two corporations would mislead the public or produce confusion. The decision of the learned justice was favorable to the contention of the plaintiff. A critical examination of the record in this case impels me to a different conclusion from that reached by the special term. The answer denies explicitly and positively the grounds alleged in the complaint, on which the equitable claim of the plaintiff is based. The allegations of the complaint, the statements contained in the affidavits of the plaintiff upon which it founds its claim for injunctive relief, are fully and fairly met by the answer and opposing affidavits of the defendant; and the right of this plaintiff to have a final judgment against this defendant is not so clear and transparent as to entitle it, at this time, to injunctive relief. It has not made it appear that the danger is so great, or that the apprehended mischief is so formidable, that the court would be authorized to summarily close the business of this defendant. The greatest caution under such circumstances as here exist should be exercised by the court in granting such a remedy. Here, by the order of the court,
The order appealed from should be reversed, and the temporary injunction order vacated, with costs and disbursements.
Lead Opinion
Order affirmed, with $10 costs and disbursements.
Concurrence Opinion
A cause of action is not stated in the complaint. Besides, this court held in the Warsaw Waterworks Case (40 FT. Y. Supp. 28) that, all the equities of the complaint being denied in the answer, an injunction suspending -the business of the defendant should not be granted pending the action. That rule is an old one.