
    The Prest-O-Lite Company, Respondent, v. Norman M. Brickner, Doing Business as Brickner Auto Supply Company, Appellant.
    First Department,
    April 17, 1914.
    See head note in Prest-O-Lite Co. v. Pay (ante, p. 62).
    Appeal by the defendant, Norman M. Brickner, etc., from an order and determination of the Appellate Term of the ■ Supreme Court' in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of New York in plaintiff’s favor.
    
      Howard S. Gans, for the appellant.
    
      Keyes Winter, for the respondent.
   Laughlin, J.:

This action and Prest-O-Lite Co. v. Ray (162 App. Div. 62) were tried together, and most of the material facts are the same in each.

In this case it appeared that the Searchlight Gas Company’s labels on the tanks sold by the defendant completely covered the word “ Prest-O-Lite ” appearing on the body of the tank, and it was represented by the employee of the defendant, who exchanged the tanks for the defendant in this instance, that he was delivering to the purchaser “ a Prest-O-Lite,” and on being asked where the name “ Prest-0 Lite ” appeared, he scratched off the label and revealed it. The decision of the case, therefore, is controlled by the views expressed in the opinion in the companion case, to which reference has been made, and on the authority of the decision in that case the determination of the Appellate Term is reversed, with costs to appellant, and the judgment of the Municipal Court is reversed and the complaint is dismissed, with costs.

Ingraham, P. J., and Scott, J., concurred; McLaughlin and Hotchkiss, JJ., dissented.

Determination and judgment reversed and complaint dismissed, with costs in all courts. Order to be settled on notice.  