Prest-O-Lite Co. v. Brockner — 147 N.Y.S. 147

Majority

p. 147

(162 App. Div. 75)

PREST-O-LITE CO. v. BROCKNER.

(Supreme Court, Appellate Division, First Department.

April 17, 1914.)

Headnote

Appeal from Appellate Term, First Department.

Action by the Prest-O-Lite Company against Norman M. Brockner, doing business as Brockner Auto Supply Company. From an order affirming a judgment of the Municipal Court for plaintiff, defendant by leave of the Appellate Term appeals.

Determination of the Appellate Term and judgment of the Municipal Court reversed, and complaint dismissed.

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and HOTCHKISS, JJ.

Howard Gans, of New York City, for appellant.

Keyes Winter, of New York City, for respondent.

This action and Prest-O-Lite Company v. Ray et al., 147 N. Y. Supp. 138 , were tried together, and most of the material facts are the same in each.

In this case it appeared that the Searchlight Gas Company’s labels on the tanks sold by the defendant completely covered the word “Prest-O-Lite” appearing on the body of the tank, and it was represented by the employe of the defendant, who exchanged the tanks for the defendant in this instance, that he was delivering to the purchaser “a Prest-O-Lite,” and, on being asked where the name “Prest-O-Lite” appeared, he scratched off the label and revealed it. The decision of the case, therefore, is controlled by the views expressed in the opinion in the companion case to which reference has been made, and on the authority of the decision in that case the determination of the Appellate Term is reversed, with costs to appellant, and the judgment of the Municipal Court is reversed, and the complaint is dismissed with costs. •

INGRAHAM, P. J., and SCOTT, J., concur. McLAUGHLIN and HOTCHKISS, JJ., dissent.