Burrow v. Marcean

67 Misc. 656, 124 N.Y.S. 810

Opinion

O’Gorman, J.

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 S'arony, 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, 134 N. Y. 24; Hegeman v. Hegeman, 8 Daly, 1.

Complaint dismissed, with costs.