185 N.E. 109 | NY | 1933
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *306 In respect to the first and second counterclaims, we think that they set up sufficient facts to constitute causes of action to restrain acts of unfair competition; that they were properly interposed, notwithstanding the fact that they seek to restrain the plaintiff from interfering with its sales of "other products" than suppositories, since such interference is "connected with the subject matter of the action." In respect to the third and fourth counterclaims, they present facts which might properly call for declaratory judgments in respect to the question whether or not the interpleaded defendant held the trade-mark and trade-mark rights for the benefit of the public, so that neither the plaintiff nor the other defendants had exclusive rights to the use thereof.
The order of the Appellate Division should be reversed, and that of the Special Term affirmed, with costs in this court and in the Appellate Division. All of the questions certified are answered in the affirmative except question seven, which is answered in the negative.
POUND, Ch. J., CRANE, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur; LEHMAN, J., dissents.
Ordered accordingly. *309