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Burrow v. Marcean

124 N.Y.S. 810 Court N.Y. Sup. Ct. English

Delivered by O’GORMAN, J.

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p. 810
(67 Misc. Rep. 656.)
BURROW v. MARCEAN et al.
(Supreme Court, Special Term, New York County.
May, 1910.)

Headnote

Trade-Mabks and Tbade-Nahes (§ 33[1] )—What Constitutes—Assignability.
The photograph business is in the nature of a profession as distinguished from a trade or mercantile pursuit, and the name “Sarony,” used as a tradn-mark, was personal to the photographer and not assign
p. 811
able, and a printer who is not a photographer, holding himself out as “Sarony,” is perpetrating a fraud, and equity will not relieve him.
[Ed. Note.—For other cases, see Trade-Marks and Trade-Names, Cent. ' Dig. § 37; Dec. Dig. § 33.*]
Action by Ernest M. Burrow against Theodore Marcean and others. Motion to dismiss complaint granted.
See, also, 124 App. Div. 665 , 109 N. Y. Supp. 105 , 126 App. Div. 910 , 110 N. Y. Supp. 1124 .
Allen & Sabine, for plaintiff.
M. Goodman (Morgan J. O’Brien, of counsel), for defendants.

The evidence prescribes a clear case of unfair competition which would justify equitable relief if the plaintiff’s own conduct were free from criticism, but the photographic business is in the nature of a profession or calling as distinguished from a trade or mercantile pursuit, and the trade-mark “Sarony” being personal to Napoleon Sarony, because of his personal skill and artistic excellence, was not assignable. When the plaintiff, who is a printer and not a photographer, holds himself out as “Sarony” and “the original Sarony,” he is perpetrating a fraud upon the public, and in such a case equity will withhold relief. Prince v. Prince, 135 N. Y. 24 , 31 N. E. 990 , 17 L. R. A. 129 ; Hegeman v. Hegeman, 8 Daly, 1 .

Complaint dismissed, with costs.

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