
    Hylan Homes, Inc., Respondent, v. Hylan Terrace, Inc., Appellant.
   — In a special proceeding to obtain an injunction under section 964 of the Penal Law, Hylan Terrace, Inc. (the respondent below) appeals from a final order of the Supreme Court, Richmond County, entered June 29, 1960, granting petitioner’s application to restrain said appellant, Hylan Terrace, Inc., from using its name or any simulation thereof in connection with its business. Order reversed on the law and the facts, with costs, and application denied, without costs, and without prejudice to a plenary action for an injunction and damages, if appellant be so advised. Findings of fact inconsistent herewith are reversed and new findings are made as indicated herein. It does not appear that appellant (Hylan Terrace, Inc.) adopted its name for the purpose of capitalizing on petitioner’s good will or with the intent of deceiving the public into believing that in doing business with appellant they were dealing with petitioner. Nor does it appear that in Staten Island the name “Hylan” has acquired such a secondary meaning that it is there understood to refer solely to petitioner’s business. Nor does it appear that there is any present competition between petitioner and appellant. Material averments with respect to the intent to deceive and the likelihood of deceiving the public are substantially controverted. Under the circumstances, the granting of the summary remedy provided by section 964 of the Penal Law is unwarranted. Nolan, P. J., Beldock, Ughetta, Kleinfeld and Christ, JJ., concur.  