Whiting Mfg. Co. v. Joseph H. Bauland Co.

New York Supreme Court

Whiting Mfg. Co. v. Joseph H. Bauland Co.

56 N.Y.S. 114, 28 N.Y. Civ. Proc. R. 230

CourtNew York Supreme Court

DecidedNovember 6, 1898

StatusPublished

Cited by1 cases

This text of 56 N.Y.S. 114 (Whiting Mfg. Co. v. Joseph H. Bauland Co.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Whiting Mfg. Co. v. Joseph H. Bauland Co., 56 N.Y.S. 114, 28 N.Y. Civ. Proc. R. 230 (N.Y. Super. Ct. 1898).

Pincite

Opinion

PRYOR, J.

Plaintiff contends that the be susupon 1, § 604, of the Code. The argument, however, is fallacious. Plainly, the subject of the action is not the sale of the silverware, but plaintiff’s right to the trade-name; and the violation of the right consists, not in the sale of the silverware, but in the infringement of the trade-name. The disposition, therefore, pendente lite, of the stock of silverware, Will not impair the effect of a judgment enjoining the use of the trade-name. If the injunction is to be upheld, it may be by virtue of section 603 of the Code. But “preliminary injunctions, which, in effect, determine the litigation, and give the same relief which it is expected to obtain by the judgment, should be granted with great caution, and only when necessity requires.” Bronk v. Riley, 50 Hun, 489, 492, 3 N. Y. Supp. 446; Grill v. Wiswall, 82 Hun, 281, 31 N. Y. Supp. 470. That the public will be misled, and the plaintiff injured, by the use of the same “F. M. Whiting Company,” is not so clear, upon the proofs, as to authorize an injunction before trial. Association v. Haynes, 26 App. Div. 279, 283, 49 N. Y. Supp. 938.

Motion denied, with costs.

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PRYOR, J.

Plaintiff contends that the be susupon 1, § 604, of the Code. The argument, however, is fallacious. Plainly, the subject of the action is not the sale of the silverware, but plaintiff’s right to the trade-name; and the violation of the right consists, not in the sale of the silverware, but in the infringement of the trade-name. The disposition, therefore, pendente lite, of the stock of silverware, Will not impair the effect of a judgment enjoining the use of the trade-name. If the injunction is to be upheld, it may be by virtue of section 603 of the Code. But “preliminary injunctions, which, in effect, determine the litigation, and give the same relief which it is expected to obtain by the judgment, should be granted with great caution, and only when necessity requires.” Bronk v. Riley, 50 Hun, 489, 492, 3 N. Y. Supp. 446; Grill v. Wiswall, 82 Hun, 281, 31 N. Y. Supp. 470. That the public will be misled, and the plaintiff injured, by the use of the same “F. M. Whiting Company,” is not so clear, upon the proofs, as to authorize an injunction before trial. Association v. Haynes, 26 App. Div. 279, 283, 49 N. Y. Supp. 938.

Motion denied, with costs.

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Bluebook (online)

56 N.Y.S. 114, 28 N.Y. Civ. Proc. R. 230, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whiting-mfg-co-v-joseph-h-bauland-co-nysupct-1898.

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