Jordan v. O'Connor

17 N.Y.S. 462, 1891 N.Y. Misc. LEXIS 661

• Court: The Superior Court of the City of New York and Buffalo
• Decided: September 29, 1891
• Status: Published

Opinion

McAdam, J.

The plaintiff owns a collection of specimens, numbering 2,500, valued at $50,000, which has for 20 years been on exhibition in this city and London under the name of “Dr. Kahn’s Museum of Anatomy” and “Dr. Kahn’s Anthropological Museum. ” The defendant Strassburger is the owner of about 100 models, which he has offered at a private sale for $400, and is now offering at auction by means of advertisements and circulars describing them as “lately forming the major part of Dr. Kahn’s celebrated museum of anatomy;” and the object of the suit is not to enjoin the sale,.but to restrain the defendants from selling the Strassburger models as part of Dr. Kahn’s collection, on the ground that such a sale would deceive the public, and cause the plaintiff irreparable damage, by deteriorating the value of his property. The facts are not denied, and the plaintiff, on equitable principles, is entitled to the relief prayed for. To illustrate: It is evident that the owner of an inferior lot of horses would not be allowed to auction off the" animals as forming the major part of Bonner’s, Lorillard’s, Belmont’s, or other well-known stables, if the statement was without truth, for the reason that it would injure the proprietors of these stables, the scope and extent of which would be incapable oí proof in an action by them for damages. Next, it would deceive the public, induce persons to buy who otherwise might not, and to offer prices-becoming the celebrity of the stables to which the horses were fraudulently represented to belong. The same rule would apply to works of art, and the like, where the celebrity of the artist, collector, or owner lends character and value to the subject of the sale. By analogy, see Hoíf. Prov. Bern. 236 et seq. Property offered at auction must be truthfully described. Any other mode is fraudulent, and may be denominated a “Peter Funk” sale, with all that term implies. The auctioneers have evidently been imposed upon, and they are made parties to apprise them of the true state of facts. The motion to continue the temporary injunction must be granted.