
    Philip H. Oswald, Inc., Plaintiff, v. Adele T. Oswald, Defendant.
    Supreme Court, Special Term, Nassau County,
    
    October 6, 1959.
    
    
      
      Milton Lipson for plaintiff.
    
      Frank & E. George Lawkins for defendant.
   Mario Pittoni, J.

The notice of motion seeks an order pursuant to section 964 of the Penal Law forever restraining the defendant Adele T. Oswald from using the name Harry Oswald or Oswald in her business. The supporting affidavit merely seeks a temporary injunction. The latter request shall be deemed the one intended.

Plaintiff corporation, Philip H. Oswald, Inc., is presently controlled by George J. Oswald (the son of Philip H. Oswald who is now deceased) and Elizabeth J. Oswald, the wife of George J. Oswald. This corporation was formed in 1956 to carry on a business begun by the elder Oswald in 1914.

From about 1939, Harry Oswald, a son of Philip A. Oswald, carried on a competing business under the assumed name, North Shore Cess Pool Cleaning Co. Prior to 1939, and for many years previously he had helped his father conduct his business. Harry Oswald died in 1958. After his death the defendant, his widow, carried on such business under the same name. In the current telephone directory there appears a listing Harry Oswald — Cesspool Cleaning”. Plaintiff seeks to enjoin the use of this listing as well as the use of the name Oswald as above stated. Defendant says her son, Harry P. Oswald, is now associated in business with her.

There are many allegations and counter allegations made by the two affiants, Elizabeth J. Oswald, for the plaintiff, and Adele T. Oswald, the defendant, which cannot be resolved on affidavits. It is interesting to notice that both affiants are Oswalds only by marriage.

The plaintiff has not demonstrated for the purpose of a temporary injunction irreparable injury pending trial.

Under all the circumstances presented by the record at this point, it is impossible to say there is any strong probability of plaintiff’s success in the action, and the motion for a temporary injunction is accordingly denied.

This case should be noticed for trial and put on the November Special Term, Part II, Trial Calendar for trial in November, 1959, subject to the approval of the Justice then presiding.

Submit order.  