Fishbein v. Yanover

272 A.D.2d 938

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 30, 1947
• Status: Published

Opinion

In an action to restrain respondent and others from the use of a business name similar to plaintiffs’ business name in the conduct of retail bakery stores situated within a block or two of plaintiffs’ store, order denying plaintiffs’ motion for an injunction pendente lite reversed, with $10 costs and disbursements, and the motion granted on condition that within ten days after the entry of the order hereon plaintiffs file an undertaking in the sum of $1,000, with corporate surety, conditioned for the payment of any damages which respondent may sustain by reason of the granting of the temporary injunction, in the event that the respondent prevail on the trial or the complaint be dismissed. On the showing in the record it sufficiently appears that the plaintiffs and their predecessor first appropriated the business name in the area affected and that the respondent’s use of the name within a block or two thereof will confound the purchasing public, unduly affect plaintiffs’ business, and cause unfair competition; and that the motion should have been granted. This decision should not be read as anticipating the findings and conclusions to be made after a plenary trial. Hagarty, Acting P. J., Carswell, Adel, Nolan and Sneed, JJ., concur.