
    The Samuel Stores, Respondent, v. Queen City Credit Clothing Corporation, Appellant.
   Order affirmed, with ten dollars costs and disbursements. All concur, except Crosby, J., who dissents and votes for reversal in the following memorandum: Plaintiff is a corporation of which the predecessors in its business were partners doing business under the assumed name of Queen City Credit Clothing Company. Plaintiff was incorporated by the same persons who had done business under that assumed name, but they chose to incorporate under the name of The Samuel Stores. Defendant was legally incorporated under a name almost identical with the name formerly assumed by those who incorporated the plaintiff. Now plaintiff seeks to enjoin defendant from doing business under its own name. Plaintiff is claiming, at the same time, that it may, and that defendant must, use an assumed and fictitious name. It is doubtful if a corporation can be permitted to do business under an assumed name, pursuant to section 440 of the Penal Law, and certainly defendant should not be compelled to do so. (The order restrains use of defendant’s name pending the action which was brought to restrain use of the name.) Present — Sears, P. J., Edgcomb, Thompson, Crosby and Lewis, JJ. [157 Misc. 186.]  