
    William Waldorf Astor, Plaintiff, v. West Eighty-second Street Realty Company and Others, Defendants.
    First Department,
    April 9, 1915.
    Injunction. —right of owner of apartment house to restrain owner of hotel from using trade name — damages — damnum absque injuria.
    The owner of an apartment house called and known as “ The Apthorp ” is not entitled to an injunction restraining the owner of a hotel subsequently completed from using the name “ Hotel Apthorp,” where his sole ground for relief arises from the inconvenience suffered by his ten•ants, guests and the public arising from the similarity of names, and it does not appear that he has suffered or will at any time in the future suffer any money damages.
    Any inconvenience or annoyance which the owner of the apartment house ór his tenants may suffer from the confusion of names is damnum absque injuria.
    
    Dowling, J., dissented.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      The submission is on the following facts:. The plaintiff is the owner of an apartment house covering the block bounded by Broadway, West End avenue, Seventy-eighth and Seventy-ninth streets, which was opened for business in the month of August, 1908, and was called “The Apthorp,” by which name it has since been commonly known. The apartments in this building consist of not less than six nor more than twelve rooms, and are rented under leases for not less than one year and at rentals of from $1,800 to $6,500 a year. There is no public dining room in plaintiff’s building and no room service is furnished by him. .The apartments are what are commonly known as housekeeping apartments and the building is in no sense a hotel or an apartment hotel.
    About May 1, 1914, the defendants completed the construction of a building on the northeast corner of Broadway and Ninety-fourth street, which on that date they opened and have since continued to operate as a first-class hotel. The defendants’ hotel has suites of one or more rooms, which it rents to transient guests or for longer periods. In connection with these rooms there is no kitchen or other facilities for cooking food. With its hotel the defendants maintain and furnish the service of bellboys and of maids for the care of the rooms and do all the laundry work made necessary by the use of the rooms. Since it was opened defendants’ building has been called and known as “Hotel Apthorp.”
    Since defendants’ hotel was opened to the public, by reason of the similarity of names the plaintiff’s house has been and will continue to be confounded with and mistaken for the defendants’ hotel, causing annoyance and inconvenience to plaintiff’s tenants, their guests and the public. Many letters, parcels and packages are daily delivered at the plaintiff’s house which are intended for guests of the defendants’ hotel. There is a daily confusion of the two places in telephone calls and on the part of individuals who call personally at one or the other of the two places. When the plaintiff’s building was opened for business there was no other apartment house or hotel or apartment hotel in the city of New York known or designated by the word “Apthorp,” which was an arbitrary name assumed by the plaintiff for the designation of his said building.
    
      
      Montgomery & Peabody, for the plaintiff.
    
      Jacob I. Berman, for the defendants.
   Hotchkiss, J.:

The question submitted for our determination is whether plaintiff is entitled to a judgment restraining the defendants from using the name “Apthorp ” in connection with its hotel. The facts submitted do not state that the plaintiff has suffered or will at any time in the future suffer any money damages whatsoever from the use by defendants of the word “Apthorp.” The plaintiff’s sole ground for relief arises from the inconvenience suffered by plaintiff’s tenants, guests and the public arising from the similarity of names. Plaintiff’s immunity from money loss is undoubtedly due to the dissimilarity of his apartment house and defendants’ hotel, and to the fact that no one seeking such accommodations as plaintiff’s building affords has ever mistaken it for defendants’, or has been betrayed into becoming a guest or a tenant of the defendants, believing that he was a tenant of the plaintiff. I cannot find nor am I referred to any case where, under these, or under any other circumstances where no money damage is shown, an injunction has ever been granted. Hence inconvenience or annoyance, so far as I can find, has never been held sufficient, and on no principle applicable to such situations as the present could it be. The plaintiff has no exclusive right to the use of the word “Apthorp” as a trade name. Although there is a distinction in certain respects between trade marks and trade names where injunctions are concerned, the rules applicable in the case of each are similar. (Koehler v. Sanders, 122 N. Y. 65, 72.) Plaintiff’s right, at most, is to restrain others from using the name “Apthorp ” in connection with any apartment house or the letting of apartments under such circumstances as are calculated to induce the public to believe that their building or apartments are those of the plaintiff. The situation must, as we held in Simplex Automobile Co. v. Kahnweiler (162 App. Div. 480), be one which discloses that competition exists, for without competition there can be no unfair competition, and hence no invasion of any equitable right. It is manifest that if defendants have not infringed any right of the plaintiff, any inconvenience or annoyance he or his tenants may suffer from the confusion of names is merely incidental to the exercise of a legal right on defendants’ part, and, so far as plaintiff is concerned, if any such annoyance or inconvenience is to be considered as damage in any sense, it must be damnum absque injuria.

The judgment should be for the defendants, with costs.

Ingraham, P. J., McLaughlin and Laughlin, JJ., concurred; Dowling, J., dissented.

Judgment ordered for defendants, with costs. Order to be settled on notice.  