Kramer & Kramer, of New York City (Charles L. Hoffman, of New York City, of counsel, and Henry A. Friedman, of New York City, on the brief), for appellant.

Bandler & Haas, of New York City (John F. Collins, of New York City, of counsel, and Harry S. Bandler, of New York City, and Edward S. Rogers, of Chicago, Ill., on the brief), for respondent.

PAGE, J. The action is brought to restrain the defendant from using the name of Wallack Brothers in its business, or in any way using said name of Wallack so as to be likely to deceive or mislead the public into believing that the defendant's business is plaintiff's business, or a branch thereof, in the business of ready-made clothing, hats, haberdashery, or either of them, and from using on ready-made clothing, hats, or haberdashery labels which have on the same, "Wallack Brothers."

The plaintiff has been doing business under the name of Wallach Brothers since 1887. They have established a reputation in the sale of ready-made clothes, advertising all of such clothes, however, as "Hart, Schaffner & Marx Clothing."

The defendant, together with his brother, started a business in 1906 in New Haven, Connecticut, under the name of Wallack Brothers. They featured mainly custom work and tailoring, but also offered for sale ready-made clothes imported from England. They had worked up a large business, especially among the Yale College students and the students of other universities and preparatory schools in the country, selling their custom-made goods and their imported suits; but their trade was exclusively in goods, made and ready-made, of an entirely different grade from those sold by the plaintiff, and more expensive. In 1916 they moved to New York City and there opened a place at No. 9 East Forty-Fourth street, from which they sold the same class of goods, all of their ready-made goods being imported goods, and they featured mainly their custom trade. In 1917 the defendant's brother left the firm and transferred his interest therein to the defendant, William Wallack. A proper certificate was filed in the county clerk's office, as required under section 440 of the Penal Law (Consol. Laws, c 40).

William Wallack thereafter continued the business under the same name that he had theretofore used, both in New Haven and New York, to wit, the firm name of Wallack Brothers. While they were in New Haven the firm, of which the defendant was a member, made regular exhibits in New York City at different show rooms and hotels, in which they presented their goods to the trade; but it was not until 1916 that they moved their principal office from New Haven to 9 East Forty-Fourth street, New York City. On or about September 1, 1921, the defendant changed the location of his store from 9 East FortyFourth street around the corner to Madison avenue, between FortyThird and Forty-Fourth streets. During the war they made a specialty of soldiers' clothing. After this change in location the defendant enlarged somewhat its sale of ready-made clothes. They were, however, of a different quality and of a different grade entirely, and much

(192 N.Y.S.)

more expensive, than the clothes of Hart, Schaffner & Marx, which were being sold by the plaintiff.

[1] While there is evidence in the case of some confusion of names, there is little evidence presented in the record of financial harm to the plaintiff by reason of the conducting of the defendant's business under the name of Wallack Brothers. It is very clear that the name was not adopted with the intention of diverting business from the plaintiff to the defendant, and that there is really no competition between them, as each appeals to a different class of customers. This injunction in effect is most drastic. The defendant for many years has been conducting its business under the name of Wallack Brothers, and by this injunction order is compelled to change entirely the conduct of its business before the issue is tried, so that the defendant is practically largely to be put out of business in this interim before it may establish its right to use the name upon the trial of the action. This in our judgment is not the purpose of a temporary injunction. Without evidence of substantial loss to the plaintiff, this injunction should not have been granted before the trial of the action, especially in view of the doubt existing as to the plaintiff's right to the ultimate remedy.

[2] It is claimed that the defendant is illegally using this partnership name under section 22 of the Partnership Law (Consol. Laws, c. 39), which, under Laws 1919, c. 408, is made section 82 of the Revised Partnership Law. But that section was not passed to aid a competitor. It was passed partly for the benefit of creditors and partly for the benefit of the partner whose name is being used without his consent. See Kram v. Shyev, 57 Misc. Rep. 112, 107 N. Y. Supp. 539. It is held in Black v. New York Life Ins. Co., 70 Misc. Rep. 532, 127 N. Y. Supp. 409, that the section works no forfeiture or disability, and the legal standing of one ignoring it remains unchanged, and that the statute contains no provisions to make its prohibition effective, and that the right of a person to do business under a certain name will not be made a vice, nor will a prohibition of its use work a disability by implication. It is further held in Zimmerman v. Erhard, 83 N. Y. 74, 38 Am. Rep. 396, that the provision, as contained in chapter 281 of the Laws of 1833, is highly penal and will not be extended.

"It was intended to prevent the use of the name of a person not interested in a firm, and thus inducing a false credit to which it was not entitled."

After the passage of the section it was held that a violation of the statute was no defense to an action on an insurance policy on property used in the business carried on under the prohibited designation, and that the assignee of an insurance policy whose firm name violates this section may nevertheless recover on the policy. Black v. New York Life Ins. Co., supra.

If the defendant is unlawfully using that name, it works no disability as against the plaintiff, who must establish its right of action. based upon an injury done to the plaintiff itself, and that injury must be substantial, especially in the case of a temporary injunction.

We are of the opinion that the order granting the temporary injunction should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

(200 App. Div. 184)

VAUGHN v. BUENA VISTA OIL CO. et al.

(Supreme Court, Appellate Division, Third Department. March 8, 1922.) Master and servant 388-Increase in compensation to children on remarried widow's death effective from time of death.

Where widow receiving compensation remarries and becomes entitled to two years' compensation in one sum, under Workmen's Compensation Law, § 16, subd. 2, the increase of the compensation due the deceased's children to 15 per cent. of his wages under such statute, providing for such increase to take effect "at the time" of the death of the surviving wife, is effective from her death, though she dies within the two years after her remarriage for which she has received compensation in a lump

sum.

Appeal from State Industrial Board.

Proceeding under the Workmen's Compensation Law by Herbert W. Vaughn and another for compensation for death of Charles W. Vaughn, deceased, opposed by the Buena Vista Oil Company, employer, and the Etna Life Insurance Company, insurance carrier. Award for claimants by the State Industrial Board, and the employer and insurance carrier appeal. Affirmed.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, KILEY, VAN KIRK, and HINMAN, JJ.

William H. Foster, of Syracuse, for appellants.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents.

COCHRANE, P. J. The deceased employee lost his life November 27, 1919. An award of 30 per cent. of his average wages was made to Maude Vaughn, his widow, and of 10 per cent. to each of their two minor children. On June 30, 1920, the widow remarried. On September 19, 1920, she died. On her remarriage under the statute (Workmen's Compensation Law [Consol. Laws, c. 67] § 16, subd. 2, as amended by Laws 1916, c. 622) she became entitled to "two years' compensation in one sum." The same statute further provides:

"In case of the subsequent death of such surviving wife (or dependent husband) any surviving child of the deceased employee, at the time under eighteen years of age, shall have his compensation increased to fifteen per centum of such wages."

The award appealed from makes such increase to the two children effective from the death of their mother. The appellants contend that, the mother on her remarriage having received two years' compensation in advance or having become entitled to the same, the increased compensation to the children should not be made effective until the expiration of such two years. The statute does not say so. Its plain reading is that the increase begins "at the time" of the "subsequent death of such surviving wife." It is true that in a case like this, where the widow dies within two years after her remarriage, there is a period during which the increased percentage is being paid to the children, as

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(192 N.Y.S.)

well as the full 30 per cent. to the widow. But the statute limits the extent of liability by providing:

"That the total amount payable shall in no case exceed sixty-six and twothirds per centum of such wages."

On the other hand, in the much more numerous cases where the remarried widow outlives the two-year period the employers are essentially benefited, because the payment of 30 per cent. to the widow then ceases and the employer is only required to make an additional payment which cannot exceed 15 per cent. to each child. The statute is rather awkwardly constructed, but I think its purpose is reasonably plain, and that no other interpretation can be placed thereon in respect to the question now under consideration without doing violence to its phraseology.

The award should be affirmed, with costs. All concur.

(200 App. Div. 190)

GOLDBERGER v. GOLDBERGER et al.

(Supreme Court, Appellate Division, Third Department. March 8, 1922.) Master and servant 361-Repairs to family residence by father, employing son injured, held not for "pecuniary gain," within Compensation Law.

Where father, who, together with the mother and two children, owned all of the stock of a corporation and occupied a building owned by the corporation as a residence, entered into a contract with the corporation to keep the building in repair, a son, who was injured while proceeding with a truck to procure painting materials for the building, was not entitled to compensation on the theory that the father, as his employer, was engaged in the business of construction, repair, and demolition of buildings, and that the employment was therefore hazardous, under Workmen's Compensation Law, § 2, group 42, in the absence of a showing that the father, in making repairs, was engaged in the construction, repair, and demolition of buildings for pecuniary gain, within section 3, subd. 5, and not merely in making repairs for the convenience, enjoyment, or comfort of the family; such repairs not being for pecuniary gain within the statute.

Appeal from Award of State Industrial Board.

Proceeding under Workmen's Compensation Law, by Louis Goldberger, for compensation for injuries, opposed by B. M. Goldberger, employer, and the Etna Life Insurance Company, insurance carrier. From an award of the State Industrial Board for the claimant, the insurance carrier appeals. Award reversed, and matter remitted to the State Industrial Board.

Argued before COCHRANE, P. J., and HENRY T. KELLOGG, KILEY, and VAN KIRK, JJ.

T. Carlyle Jones, of New York City, for appellant.

Charles D. Newton, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents.

COCHRANE, P. J. The employer does not appeal. He is the father of the claimant. He was president and treasurer of three cor

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

porations, known as Goldberger Manufacturing Corporation, Salsbury & Thomas Needle Factory Corporation, and Double Century Needle Factory Corporation. All of the stock of all of those corporations, not owned by himself, was owned by his wife, son and daughter. He was the only employee of the Salsbury & Thomas Needle Factory Corporation. This latter, corporation owned the property at 887 East 176th street, New York City. It was the residence of the employer and his family, including this claimant. Two other families occupied apartments in the same building. At the time of the accident the claimant was proceeding with a Ford automobile truck to procure some painting material to be used in or about said building. The truck did not work properly, and in connection with its operation or manipulation by the claimant and another, whom he summoned to his assistance, the claimant received the injuries in question. Only one painter was engaged in the work of painting the building, and his work did not exceed two days' duration.

The State Industrial Board has held that the employer was engaged in the business of construction, repair, and demolition of buildings, and that the employment of the claimant was therefore hazardous. Workmen's Compensation Law (Consol. Laws,' c. 67) § 2, group 42. It is not sufficient that the employment be hazardous, but it should also appear that the employment was "carried on by the employer for pecuniary gain." Section 3, subd. 5. In Matter of Hungerford v. Bonn, 183 App. Div. 818, 171 N. Y. Supp. 280, the claimant was engaged in making some minor repairs in the apartment of the employer in a threefamily house owned by the wife of the employer. It was said by this

court:

"It cannot be said that the appellant, with reference to this house, was engaged in 'construction, repair and demolition of buildings,' or in any other employment declared hazardous by the Workmen's Compensation Law. * The work did not differ from the ordinary work done periodically by all householders of kalsomining certain rooms in the house. The evidence is undisputed. It was error of law to say that the alleged employer was carrying on a hazardous employment at this time and place for profit."

It is contended in behalf of the claimant that the employer had a contract for the renovation of this house. The record discloses a contract

"between the Goldberger Manufacturing Company and the Salsbury Needle Corporation, or any other corporation that may be a subsidiary corporation of the Goldberger Manufacturing Corporation, with B. M. Goldberger, of the borough of the Bronx, city of New York, as follows: That Benjamin Goldberger shall renovate and keep in order any buildings of the above-named corporation on the following terms: For the term of one year, receiving a bonus of 10 per cent. of the costs of the entire costs for renovating any of the buildings present in the face of the contracts and schedules."

It is signed by this employer, as president and treasurer of both corporations. There is not a word as to the nature of the repairs to the building in question, or any other building. It appears, therefore, that this building was owned by a corporation, all of the stock of which was owned by the employ and his family; that he, with his family, including the claimant, res.ded there. The painting in question was