Booth v. Jarrett

Van Brunt, J. In or about the year 1868 the plaintiff, at the corner of Twenty-third street and Sixth avenue, in the city of Hew York, built a theater, which he called “ Booth’s theater.” From February, 1869, to the 30th of January, 1873, the plaintiff managed the said theater and obtained a great reputation for the said theater under the name of “ Booth’s theater.” On this last mentioned date the plaintiff executed a release to Junius B. Booth, of the theater in question, under the following designation: “All those certain premises situate on the southerly side of Twenty-third street, between Fifth and Sixth avenues, and known as Booth’s theater, in the city of Hew York.” On the 7th day of April, 1874, the said Junius B. Booth assigned this lease [172] to the defendants. In the month of November Edwin Booth executed a mortgage to Oakes Ames upon the theater, in which mortgage the premises are described by metes and bounds, to whieh description is added the words, “ being the premises known as Booth’s theater, in the city of New York.” A mortgage was also given to Simon Worm ser on the said premises, which was foreclosed, and the premises conveyed to Oliver Ames, in February, 1876, by the same description. Hr. William H. Pritchard having been duly appointed receiver of said premises in the action to foreclose the Wormser mortgage, by direction of the court executed an agreement by which the defendants were accepted as tenants of the property known as Booth’s theater, upon the terms and conditions set forth in the said lease to Junius B. Booth, excepting certain 'modifications contained in said agreement, and since the execution of this agreement up to the present time the defendants have been carrying on the theatrical business at said theater, designating the same on their hand-bills and bill-boards as “ Booth’s theater,” but representing themselves as the lessees and managers. The plaintiff claiming that by the use of the name of “ Booth’s theater ” the public will be misled into believing that he is still the manager of this theater, and that they will be deceived into going to the theater, supposing that plaintiff still acts there, and that he will be injured thereby, brings this action to restrain the defendants from the use of the name of “ Booth’s theater.” I am unable to see how the injunction asked can be granted. The plaintiff has built a public building and christened it “ Booth’s theater.” He has acquired for that under that name a reputation as a place of public amusement. Having thus increased the value of the premises by that reputation, he has mortgaged and leased them under the name he had given them, and there is no doubt from the manner in which the premises are described in the lease to Junius B. Booth that one of the inducements to the lease was the public reputation which Booth’s theater had acquired as a place of public amusement. [173] The defendants have succeeded to, all these rights, and one of them, seems to me is the name by which the plaintiff has conveyed these premises. It is to be borne in mind that there is no attempt upon the part of the defendants to conceal the fact that they are the lessees and managers of this theater. What, under these circumstances, does the use of the name “ Booth’s theater” indicate to the public? Nothing more, I imagine, than that this theater was built by the plaintiff; that this is the theater which he named upon its construction “ Booth’s theater,” and the place of amusement which had become known to the public tinder that name. The facts developed in this case are far from bringing it within the principles laid down in the case of Howe agt. Searing (19 How. Pr. R., 14), relied upon by the plaintiff as an authority to support his claim in this action. In that case the assignees of Howe conducted the whole business in his name, and the court upheld the injunction on the ground “that it was against public policy to allow a business to be conducted under any other name than that of the actual parties doing it.” It seems to me that the plaintiff, by his acts, has affixed his name to the theater, so that his grantees and their successors have the right to call this building “ Booth’s theater,” the name which he has given it. The motion for an injunction must be denied, with ten dollars costs.