Jenner v. Shops

67 Misc. 159

• Court: New York Supreme Court
• Decided: March 15, 1910
• Status: Published

Opinions

Seabury, T.

The statutes (Partnership Law, § 22; Penal Law, § 924), against which the defendant claims the contract offends, are highly penal in character and are to be strictly construed. The name “Tenner & Company” wias a lawful name. If the plaintiff’s intestate assumed to do business under that name without an actual partner, that act was illegal; but that fact did not render the use of this name illegal. Any one authorized to use this name could do so, lawfully, by complying with the provisions of the statute. The prohibition of the statute is aimed not at the name but against the practice of doing business under such a name by one who has no actual partners. If Tenner did business under this name in violation of the provisions of the statute, he made himself liable to the penalty prescribed by the statute; but he did not forfeit the right to this name or the right to do business under it, provided he should comply with the provisions of law. Upon the death of Tenner the name passed to his estate as a part of the good will of his business. As such it was a valuable asset which the plaintiff had the right to sell. When the defendant bought this name he did not purchase anything which was itself illegal, nor did he purchase permission to violate the law of the State.

Without the consent of the plaintiff he could not have used the name “Tenner & Company.” With the consent of the plaintiff he could only do business under the name by complying with the provisions of the statute. Having obtained the plaintiff’s consent to use this name upon his promise to pay for it. he now seeks to avoid his obligation by showing that the plaintiff’s intestate committed a'misdemeanor by not complying with the provisions of the statute when he used the name. If the plaintiff’s intestate committed a misdemeanor, he laid himself open to the penalty which the statute prescribed; but the law does not visit that penalty upon his - estate. The plaintiff or her assignee has the right to use the name, provided the name is used in accord with the requirements of law. The defendant’s resistance to this claim is an obvious attempt to get something for nothing, and to avail himself of the alleged illegal act of the plaintiff’s intestate as a pretext under which he may repudiate his lawful agreement.

The judgment rendered -against the defendant is right and should be affirmed, with costs.

Lehmas, J., concurs. .