Hyperlawhypertext legal database Blumenthal v. Strauss 23 Abb. N. Cas. 339

← Cases

Blumenthal v. Strauss

23 Abb. N. Cas. 339 Court N. Y. Supreme Court, General Term, First Department ; English

Delivered by Brady, J.

Contents

Majority

p. 339
BLUMENTHAL v. STRAUSS.
N. Y. Supreme Court, General Term, First Department ;
May, 1889.

Headnote

Partnership ; use of term ‘1 successors ” to dissolved firm.] Plaintiff and defendants, having been copartners in business, dissolved their firm, plaintift selling and assigning to defendants all “his right, title, estate and interest in and to the assets of said firm of any and every nature, kind and description,” including an unexpired lease of the premises occupied by the firm. In an action brought to enjoin defendants from describing themselves on their signs, stationery, etc., as “ successors to” the dissolved firm—Held, sustaining an injunction pendente lite, that the transactions between the parties had not expressly or impliedly authorized such use of the old firm name, and in the absence of such authority, its use was without right and would be enjoined. Í
Appeal from order restraining the defendants during the pendency of the action from using or displaying the name of the plaintiff or any part thereof in connection with the business carried on by the defendants, or from maintaining the same upon their signs, or from in any manner representing, describing or holding themselves out as being
p. 340
the successors in business of the late firm of which the plaintiff and defendants had been members.
The action was brought by Sigmund Blumenthal against Adolph Strauss and Morris Strauss. The parties had been, partners, forming the firm of Strauss, Blumenthal & Company, which had been dissolved, the plaintiff selling and1 assigning to defendants “all and singular his right, title,, estate and interest in and to the assets of the said firm of Blnmenthal, Strauss & Co., of any and every nature, kind5 and description, to have and to hold the same to and for their sole and absolute use forever.” Among the assets so-conveyed was the unexpired lease of the premises occupied' by said firm.
The plaintiff thereafter entered a new firm, which engaged in a similar business to that carried on by the late-firm.
The defendants formed a new firm of Adolph Strauss- & Company, and continued the business in the premises which had been occupied by the late firm, retaining the sign used by it, upon the outside of the building, adding above it the words “ Adolph Strauss & Company, successors to,” and made similar use of the unused stationery of the old firm.
The complaint prayed for an injunction to restrain such use of plaintiff’s name, and defendants’ holding themselves-out as successors of the late firm.
Julius J. Frank, for defendants and appellants.
I. Plaintiff’s papers do not show a case warranting an injunction.
II. The copartnership name was-a trade mark, and passed to defendants in the general sale of the partnership effects (Lindley on Partn. 167; 1 Collyer on Partn. 287 ; Browne on Traders, § 530 ; Banks v. Gibson, 34 Beav. 566; Hazard v. Caswell, 93 N. Y. 259 ; Hegeman v. Hegeman, 8 Daly, 1 ; Barber v. Conn. Mut. Life Ins. Co., 15 Fed. Rep. 312 ; Dimon v. Hazard, 32 N. Y. 65 ; Merry:
p. 341
v. Hoopes, 111 Id. 415 ; Menendez v. Holt, 128 U. S. 514 ).
III. Defendants have a right to describe themselves as successors (Adams v. Adams, 7 Abb. N. C. 292 ; Flegenheimer v. Lahres, N. Y. Daily Register, Feb. 25, 1887 ; Morgan v. Schuyler, 79 N. Y. 490 ; Van Wyck v. Horowitz, 39 Hun, 237 ).
Hamilton Wallis, for plaintiff and respondent.

Prior to December 24, 1888, the parties to this action were copartners, carrying on business at 444 Broadway, in this city, under the firm name of Strauss, Blumenthal & Co. It appears that on the day mentioned the firm was dissolved, the plaintiff conveying to the defendant all and singular his right, title, estate and interest in and to the assets of the said firm of any and every nature, kind and description. The plaintiff subsequently formed a copartnership with one Boas, and dealt in many of the ■same goods as those also dealt in by the firm of Strauss, Blumenthal & Co. The defendants have since the dissolution continued the business at No. 444 Broadway, and continuing the old sign of the firm on the outside of the building, added to it another sign containing the words, “ Adolph Strauss & Co., Successors to.” And it appears that they •also used the stationery of the old firm, changing it by ■stamping thereon the same words.

It will have been observed that nothing in the transfer in its whole scope grants in any form the right of using the ■plaintiff’s name, or the right to declare themselves ^ the successors of the old firm Indeed, from the fact that the plaintiff purchased a part of the stock in trade of the old firm, the indication was of an intention to conduct a kindred business. There is nothing in the facts and circumstances, •duly and closely considered, which justifies the conclusion that by the agreement of dissolution the plaintiff designed to grant, or that the defendants expected to acquire by it,

p. 342
the right to assert that they were the successors to the business of the old firm or of the members of the old firm. And, in the absence of such an agreement, express or implied, there is no right so to employ the name of one of the partners on dissolution, or so to assert in reference to the whole business, since the decision of the court of appeals in Morgan v. Schuyler (79 N. 7. 490), a decision-which has not been questioned.

That is a kindred case, and it was said, in considering the question, that it was evidently not the intention of the parties that the defendant in conducting his business was in any manner to use the plaintiffs name, either in combination or as Morgan & Schuyler, or in subserviance to it,: by advertising himself the successor to that firm. And, also,, that it was not claimed that there was any express contract to that effect, and that none could be implied either from the language of the agreement actually made or from any fact or circumstance connected with it. The language of the transfer in this case is no broader than in that. The-learned justice in the court below considered that adjudication decisive, and in this we think he was right. An examination of the cases cited by the appellant does not justify a contrary conclusion. They relate to the good will of a. business and" to the right to its trade marks, upon an agreement kindred to that involved in this case.

It is not deemed necessary to go into a detailed statement of these various cases; but it is considered sufficient to state the general proposition that none of them involves the precise question here discussed, and which was presented to and disposed of by the court of appeals, as already-stated.

For these reasons it is thought that the order appealed from should be affirmed with costs and disbursements.

Van Brunt, F. J., and Daniels, J., concurred.

Cases cited