Commercial Union Assurance Co. v. Smith — 40 N.Y. St. Rep. 758

Majority

p. 758

The Commercial Union Assurance Company, Limited, App’lt, v. Morris H. Smith et al. and The Commercial Union Life Ins. Co., Resp’ts.

(Supreme Court, General Term, First Department,

Filed October 16, 1891,}

Headnote

Appeal—Trade name.

This action was brought to restrain the defendants from using the name Commercial Union. The complaint was dismissed, but defendants agreed to and have abandoned the use of such name.. Held, that as there was no longer any real controversy between the parties the question involved was but an abstract one and the appeal should be dismissed.

(Barrett, J., dissents.)

Appeal from a judgment rendered at special term dismissing the complaint upon the merits.

The action was commenced by plaintiff, an English corporation carrying on insurance in several branches of fire, life and marine insurance, but only carrying on the business of ñre insurance in this state, the laws, as construed by the insurance department, permitting foreign insurance companies to engage in only one class of business. Defendant sought to organize a corporation under the name of the Commercial Union Life Insurance Company of New York, for the purpose of insuring lives, and plaintiff thereupon requested the superintendent of the insurance department to reject the proposed name, on the ground that it would conflict with that of plaintiff.

Plaintiff then brought this action, alleging it would suffer damage if defendant were permitted to use the name Commercial Union, and obtained, and served with its summons and complaint, a temporary injunction, which was vacated. Upon the trial the complaint was dismissed.

William Allen Butler, for app’lt; Henry G. Willcox, for resp’ts.

I think we ought to dismiss this appeal. There is no longer any real controversy between the parties. The purpose of the action was to prevent the defendants from using the name or title of Commercial Union as the designation of a life insurance company to be organized to do business in the state of Hew York. The plaintiff failed in the court below, nevertheless, as appears from the statements of counsel made in the course of their arguments before us, the defendants have concluded to abandon and have abandoned the use of the name which the plaintiff sought to enjoin them from using. An injunction having become needless to protect the plaintiff, it is unnecessary to inquire whether the plaintiff made out a case for an injunction upon the trial Appellate courts may properly refuse to pass upon abstract questions where no actual relief is really sought. People ex rel. Geer v. Com. Council of Troy, 82 N. Y., 575 ; Grow v. Garlock, 29 Hun, 598 .

Appeal dismissed, without costs.

Van Brunt, P. J., concurs.

(dissenting.)—The question presented is not, in my judgment, an abstract one. It involves a genuine issue, none

Dissent

p. 759

the less so because we are told by counsel that since the judgment the defendant has abandoned the use of the name sought to be enjoined.

The defendant may resume its original position to-morrow and the plaintiff will be barred by the judgment appealed from.

And, further, the complaint was dismissed below upon the merits, with costs. By our refusal to consider- the appeal the plaintiff will have to pay these costs.

I think it is our duty to decide the case and I am, therefore, constrained to dissent from the dismissal of the appeal.