| N.Y. App. Div. | Feb 23, 1984
Judgment of the Supreme Court, New York County (Albert M. Rosenblatt, J.), entered on December 3, 1982, which, following a nonjury trial, adjudged that plaintiffs, as sellers, conveyed the trade name “Tuesday’s” as part of the assets of Tuesday’s Restauranteurs, Inc., when they conveyed without restriction all of their right, title and interest therein to Never on Tuesday, Inc., as buyer, that the circumstances here do not justify the grant of equitable relief and that, in lieu of any equitable relief, plaintiffs are awarded $35,000 to compensate them for having conveyed the unfettered use of the name “Tuesday’s”, is modified, on the law and the facts, to the extent of vacating the award of $35,000 and otherwise affirmed, without costs or disbursements. The trial court determined, and the evidence in this case demonstrates, that when plaintiffs, as sellers, conveyed the stock of Tuesday’s Restauranteurs, Inc., to Never on Tuesday, Inc., as buyer, they transferred without restriction all of the corporate assets, including its trade name. The sellers’ failure to obtain at closing a restrictive covenant with regard to the name “Tuesday’s” constituted a waiver of their right to object to defendant’s use of that trade name. The court, having appropriately found that plaintiffs were not entitled to any equitable relief,