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

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.