
    (December 5, 1957)
    (Republished)
    Kopper’s Chocolate Specialty Co., Inc., Appellant, v. David Kopper Candy Corporation, Respondent, et al., Defendant.
   Judgment affirmed, with costs to respondent. Concur — Peck, P, J., Frank, Valente and McNally, JJ.; Rabin, J. dissents and votes to reverse and order a new trial in the following memorandum: In my opinion plaintiff established a prima facie case since the agreement in evidence indicates that Kopper, through whom defendants base their right to use the name, gave up to the plaintiff all “ claim ” and “ any proprietary interest” therein. Although on this record there was no need to establish a secondary meaning, the proof tended to establish one. There was likewise proof of confusion. Defendants should have 'been put to their proof and the complaint should not have been dismissed upon the close of the plaintiff’s case. [Also printed, ante, p. 1012.]  