McElfatrick v. McElfatrick — 198 N.Y. 546

Majority

p. 546

William H. McElfatrick, Individually and as Surviving Partner of the Firm of J. B. McElfatrick & Son, and as Executor of J. B. McElfatrick, Deceased, Respondent, v. Margarette E. McElfatrick, Individually and as Executrix of J. B. McElfatrick, Deceased, Appellant, Impleaded with Another.

Headnote

McElfatrick v. McElfatrick, 129 App. Div. 906 , modified.

(Argued March 4, 1910;

decided March 22, 1910.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered

p. 547

December 26, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to restrain the defendant from using the name J. B. McElfatriclc in connection with any business.

Jerome H. Buck and Edward A. Alexander for appellant.

I. M. Dittenhoefer for respondent.

Judgment modified by striking out the words “ from in any way using the name of J. B. McElfatriclc or,” and also the words “ or from making the said name J. B. McElfatriclc part of any business name,” so that the judgment as modified shall read as follows: “ That the plaintiff, William II. McElfatriclc, individually and as sole surviving partner of the firm of J. B. McElfatriclc & Son, and as executor of the last will and testament of J. B. McElfatriclc, deceased, do have and recover judgment against the defendant enjoining and restraining her from doing business as architect or builder under the name of ‘ J. B. McElfatriclc,’ or from in any way using the said name ‘ J. B. McElfatriclc ’ in connection with said business,” -and as thus modified affirmed, without costs of this appeal to either party; no opinion.

Concur: Cullen, Ch. J., Gray, Edward T. Bartlett, Werner, Willard Bartlett and IIisoook, JJ. Absent: Chase, J.