Kuh v. Barnett — 25 N.Y. St. Rep. 902

Majority

p. 902

Joshua Kuh, App’lt, v. Clarence Barnett, etc., Resp’t.

(New York Superior Court, General Term,

Filed August, 1889.) .

Headnote

Injunction—Complaint—Improper verification—When vacated.

On an application for a preliminary injunction, many of the allegations of the complaint were made upon information and belief, and it was verified by plaintiff’s attorney, the affidavit stating “that the source of deponent’s information are plaintiff’s statements to him.’’ One of the affidavits accompanying the complaint was made by plaintiff’s agent and sworn to before the' plaintiff's attorney. Held, that the injunction was properly vacated.

Appeal from ail order made at special term, vacating a preliminary injunction which had been granted at special term.

Alfred Jaretzki, for app’lt; William G. Oppenheim, for resp’t.

The plaintiff obtained a preliminary injunction upon the complaint and certain affidavits. It was alleged in the complaint that the plaintiff was engaged in the business of selling men’s and boy’s clothing and furnishings, at 596 Broadway, in the city of New York; that he had hired the premises at a large expense and had stocked them with a large stock of merchandise, and that he had advertised, at a considerable cost and expense, his said place of business in certain of the daily newspapers of the city of New York; that he had caused to be displayed upon said premises large and prominent signs, calling the attention of the public to the character of the business conducted by him, and to the number of plaintiff’s place of business; that he had used no name, sign or designation in connection with said business or place of business, except the number of the premises, to wit, the number 596; that said number had become generally known to the public as designating the place where the plaintiff’s merchandise was sold; that the said number had become a valuable property and trademark; that the defendants are engaged in, and are conducting a business similar to that of the plaintiff at No. 532 Broadway, in said city, within a short distance of plaintiff’s above mentioned premises; that the defendants have no name upon their said place of business; that prior to the time that

p. 903

plaintiff commenced business as aforesaid,'the defendants had displayed in front of their place of business the number 532; that after plaintiff had advertised his business as aforesaid, the defendants, with the intent to take advantage of plaintiff’s advertising, and with the further intent of deceiving and defrauding the public, removed their number 532 from its position, and exhibited hibited and displayed, and have ever since exhibited and displayed the number 596, the said number being in large white letters on a sign-board painted red in exact imitation, design, coloring and size of the sign-board displayed in front of plaintiff’s s'aid premises. The complaint was verified by the attorney, for the plaintiff. These allegations were, in substance, repeated in the two affidavits on which with the complaint, the preliminary injunction was granted. One of these affidavits was made by the attorney for the plaintiff; the other was made by the “ agent of the plaintiff.”1 It was stated in the verification of the complaint “ that the source of deponent’s information are plaintiffs’ statements to him.”

It is apparent, on reading the complaint and the affidavit of plaintiff’s attorney, that many of the allegations contained in them were made, and from the nature of the case, must have been made, on information and belief. The grounds of the belief, and the source of the information, are plaintiff’s statements.” This court has held that a provisioned remedy should not be granted on affidavits that are made on information and belief. Martin v. Gross, 22 N. Y. State Rep., 439; also, 19 id., 56, and p.,. 879.

It may be that we can infer that the agent of the plaintiff has sufficient knowledge to enable him to make an affidavit, but his affidavit could not be used to sustain the preliminary injunction, because it was sworn to before the attorney for the plaintiff.

The rule not to allow an affidavit taken before the attorney in the action to be read, is an old rule of the king’s bench. See Tidd’s K. B. Pr., 451. That has often been followed in this state. Taylor v. Hatch, 12 Johns., 340 ; In re Cross, 2 Chan. Suits, 3; Anon., 4 How., 290 ; Bliss v. Molter, 58 How. Pr., 112 ; Murray v. Hefferan, 2 Law Bull., 67.

We think the rule a good one.

The order appealed from is affirmed,' with costs.

Freedman, J., concurs.