
    Employers’ Liability Assurance Corporation, Limited, App’lt, v. Employers’ Liability Insurance Company of the United States et al., Resp’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 18, 1894.)
    
    Injunction—Special damages.
    An unlicensed foreign insurance company will not be enjoined from doing business in this state at the suit of a duly authorized company, unless the latter shows special damage by reason of the former’s illegal conduct.
    Appeal from a judgment dismissing the complaint on the merits.
    
      William Allen Butler, for app’lt; William G. Wilson, for resp’ts.
   Follett, J.

Upon the appeal from the first judgment entered in this action it was held that the plaintiff is not entitled to the exclusive use of the term ‘‘ Employers’ Liability ” as part of its corporate name, and that its use by the defendant could not be restrained, though such use might mislead or deceive persons intending to insure with the plaintiff. 61 Hun, 522; 41 St. Rep. 890. But it was held that, if the defendant was doing business in this state without permission of the insurance deparment, the plaintiff might be entitled to a judgment restraining the defendant from doing business in this state if it could show that it had sustained special damages by reason of defendants’ illegal action. Upon the present trial it appeared that the defendant corporation did not issue a policy until .nearly a month after this action was begun, and the plaintiff failed to show that it had sustained any special damage before this suit was brought. This seems to be a perfect defense to this action. The defendant having the right to use the words “ Employers’ Liability ” as part of its corporate name and in its business, the similarity of names ceases to be a factor or ground for recovery, and the rights of the litigants are the same as though their corporate names were dissimilar. The plaintiff has not made out a cause of action based on the fact that the defendants have issued policies without having been authorized by the insurance department. The learned counsel for the plaintiff, in his seventh point, admits that the illegal acts of the defendant in talcing insurance risks in this state contrary to law do not of themselves give any right to the injunction sought by this action, but argues that the change of defendants’ corporate name at the suggestion of the insurance department is an admission that its name was so similar to the plaintiff’s as to produce confusion and uncertainty, and that on this admission the plaintiff is entitled to the relief sought. The defendants have made no such admission. The defendant corporation has not abandoned the use of the words Employers’ Liability,” but has simply prefixed the word “American ” to its title, and omitted the words “ of the United States.” The insurance department has not denied the right of the defendant corporation to use these words in its corporate name, but, on the contrary, expressly asserted in its letter of April 22, 1890, that it had a right to use these words. Before the plaintiff can recover under the rule laid down in 61 Hun, 552; 41 St. Rep. 390, it will have to show that the defendants were issuing policies in violation of the law of this state, and that their acts had actually caused some special injury, or would necessarily cause such injury, to the plaintiff’s business. This it has failed to do, except it is shown that the defendant corporation has used, and asserts its right to use, the words “Employers’ Liability ” as part of its corporate name, which this court has held it has a right to do. The mere fact that an unlicensed person should begin the practice of medicine would not authorize a licensed practitioner to maintain an action to restrain the unlicensed person from practicing.

The conclusion reached—that no cause of action is stated in the complaint, and that none was proved on the trial-—renders it unnecessary to consider the third conclusion of law contained in the decision of the special term. The statute referred to (chapter 211, Laws 1877) does not relate to foreign insurance corporations, but to companies to be thereafter organized under the laws of this state; and it does not seem to vest the insurance department with the right to prescribe what name or title foreign corporations shall take. Under the statutes existing at the time this controversy arose the superintendent, however, had the right to refuse to permit any foreign corporation to transact business in this state “ whenever, in his judgment, such refusal to admit shall best promote the interests of the people of this state.” Laws 1873, chap. 593, § 2. Such a similarity of name as would likely lead to confusion would seem to be, under this act, a sufficient ground for refusal.

The judgment should be affirmed, with costs.

All concur.  