
    In the Matter of Free Gift Baptist Church, Inc., et al., Petitioners, against James W. McCray, Respondent.
    Supreme Court, Special Term, Queens County,
    March 25, 1958.
    
      Austin G. Cocussa for petitioners.
    
      Solon B. Hanft for respondent.
   William B. Gboat, J.

This is a proceeding brought under section 964 of the Penal Law to restrain the respondent who, it is alleged, is no longer the lawful pastor of the petitioner Free Gift Baptist Church, Inc., from using such name or the name ebee gift baptist CHUBCH, for advertising purposes, or for the purposes of his calling, or for any other purpose, or any simulation, derivation or approximation thereof, either alone or in conjunction with his name or with other words, in connection Avith his calling, religious services, meetings, or any other purpose whatsoever, and ordering and enjoining the said respondent to obliterate, delete and remove the name ebee gift

BAPTIST CHUBCH, INC., OT EBEE GIFT BAPTIST CHUBCH Or any simulation thereof in or about any building, edifice or structure Avithin the City of New York, in or about the building and premises knoAvn as No. 1054 Myrtle Avenue, Brooklyn, New York, and in or about any place whatsoever within the City of New York, and in or about his stationery, listings, telephone books, signs, advertising and wherever the same may appear.”

The court is of the opinion that the summary remedy provided by section 964 of the Penal Law is not available to the situation presented in this litigation involving, as it does, serious questions of fact with respect to the respondent’s status in the petitioner church and his intent to deceive and mislead the public.

Under these circumstances, the court is constrained to deny the application without prejudice to a plenary suit in equity as petitioner may he advised.

Submit order.  