G & G Wholesale Grocers, Inc. v. Three G Wholesale Grocers, Inc.

256 A.D. 950, 10 N.Y.S.2d 203, 1939 N.Y. App. Div. LEXIS 5594

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1939
• Status: Published

Opinion

In an action to restrain defendant' from acts of unfair competition in conducting its business in such a manner as to deceive the public because of its imitation of plaintiff’s name and advertising, judgment, as resettled, unanimously affirmed, with costs. The facts warrant the conclusion that the defendant attempted to and did represent his wares as those of plaintiff. (Neva-Wet Corp. v. Never Wet Processing Corp., 277 N. Y. 163, 168; Cash, Inc., v. Steinbook, 220 App. Div. 569.) The contract conferred no right upon the retiring partner to deceive the public by simulating plaintiff’s name and style of doing business, and, even if it did, such a provision would be void as against public policy. We have examined the judgment roll and particularly the original judgment, defendant’s notice of motion for resettlement and affidavit and memorandum in support thereof, which are not printed in the record, and find that it was defendant who objected to an injunction restraining the use of the words “ Three G Wholesale Grocers, Inc.,” and procured resettlement of the judgment in its present form on the ground that it was entitled to use the words “ Three ” and “ Wholesale Grocers.” It may not, therefore, complain of the form and scope of the judgment, as resettled. Present — Hagarty, Carswell, Davis, Adel and Close, JJ.