
    Demie W. Hildreth and Henry Segelken, Respondents, v. Joseph M. McCaul, Appellant.
    
      .Firm, name—what facts establish bad faith in, the use of a name and justify the granting of a temporary injunction.
    
    An individual Who becomes a member of a copartnership has a right to use the name of his copartner in connection with his business and in advertising the same, provided he acts in good faith and does not deceive the public or mislead those with whom he seeks to do business, as to the identity of his business or his firm,, to the injury or prejudice of others competing in the same line of business.
    What affidavits, submitted on a motion made in an action brought by Demie W, ■ Hildreth and Henry Segelken, partners, doing business under the firm name of Hildreth & Segelken, against one Joseph M. McCaul, who claimed to have entered into a copartnership with "one Henry Phelps Hildreth, and who had. leased premises formerly occupied by the firm of Hildreth & Segelken, and erected a sign bearing the words “Hildreth, McCaul Co.,” in large letters- and the words “Jos. M. McCaul, Prop.,”, in small letters underneath, establish that McCaul was not using the name “ Hildreth ” in good faith and justify the-granting of a temporary injunction restraining the defendant from using, in his business, the name “ Hildreth ” separately or conjunctively with any other-name, designation or description until the further order of the court, considered.
    Appeal by the defendant, Joseph M. McOaul, from an order of the Supreme Court, made at the Hew York Special Term and entered ill the office of the clerk of the county of Hew York on the-10th day of July, 1901, restraining and enjoining the defendant, his-agents and servants, “ from showing, displaying or otherwise using-during the pendency of this action in or upon any papers, devices,, sign or signs, or otherwise, in the business conducted by the defendant at Hos. 120-122 West Broadway, in the borough of Manhattan,, city of Hew York, or elsewhere, the name of Hildreth ’ separately or conjunctively with any other name, designation or" description.”'
    
      William Hughes, for the appellant.
    
      William Victor Goldberg, for the respondents.
   Laughlin, J.:

In the year 1883, appellant and Henry Phelps Hildreth formed a. copartnership as manufacturers and commission merchants dealing-in honey, beeswax, maple sugar and maple syrup and carried on. business at Ho, 90 Hudson street in the city of Hew York, In 1884 Luther S. Hildreth became a member of the firm and the firm name was changed to McCaul & Hildreth Bros. The firm remained the same until 1888, when appellant retired and Henry Segelken entered the firm as a partner. The business was then continued under the firm name of Hildreth Bros. & Segelken. In 1895 Henry Phelps Hildreth withdrew as a partner and the firm name became Hildreth & Segelken. In 1898 Luther S. Hildreth died, and his wife, Demie W. Hildreth, who succeeded to his interests, became a member of the firm and the business was and still is continued under the name of Hildreth & Segelken.

Each successive firm succeeded to the good will of the former firm. For about thirteen years prior to the 1st day of May, 1901, the firm business was conducted at Hos. 120 and 122 West Broadway. On that day the firm changed its place of business to Hos. 265 and 267 Greenwich street. The appellant, prior to his connection with the firm, had experience in this line of business as an employee of the firm of H. K. & F. B. Thurber & Co., and after withdrawing from the firm to which plaintiffs are successors in 1888, he engaged in the same line of business as a broker on his own account at 198 Duane street and so continued until 1892. After being out of the business for about four years he resumed business in 1896 in Brooklyn, continuing it until 1899. In May, 1899, he entered the employ of plaintiffs and continued in such employ until May 1, 1901.

He claims to have entered into a copartnership with Henry Phelps Hildreth on the lltli day of May, 1901. The articles of copartnership were not produced, but by their terms, as stated by appellant, he was to furnish the entire capital, which was to be $6,000, and was to have charge of the business and Hildreth was to share in the profits as if he had contributed the sum of $500 to the capital.

Hildreth was old, in poor health, had no means, and judgments in large amounts had been entered against him, which remained unsatisfied. He had worked as a clerk for a time after leaving the firm in 1895, but for many years had been out of business. He was defendant’s brother-in-law.

The defendant rented the premises 120 and 122 West Broadway for a period of thirteen years shortly after the same were vacated by the plaintiffs. In place of the sign which respondents had on the building, appellant caused the sign “ Hildreth, McCaul Co.” to -be erected in large letters and the words “Jos. M. McCaul, Prop.” in small letters underneath. He prepared letter-heads quite like those used by the plaintiffs, excepting that in place of the firm name “Hildreth & Segelken,” the firm name of “Hildreth, McCaul Co.” in large letters with the words “Jos. M. McCaul, Prop.” appeared, and with that heading he caused a circular to be issued to the trade, signed “Hildreth, McCaul Co., Jos. M. McCaul, Prop.,” stating, among other things, “We have organized this new honey, beeswax, maple sugar and maple syrup firm, and have located ourselves at the old stand which we established fifteen years ago. ' We will continue to carry a full line of the different kinds of honey. * * * Our experience for the past twenty-five years in this line of goods enables us to make selections and give you entire satisfaction.”

It was shown by affidavit that the Bradstreet Mercantile Agency published a report of appellant’s firm and business, stating that appellant represented that Henry P. Hildreth was not his partner, but that he paid a consideration for the use of his name, and that the Wilbur Mercantile Agency published a report to the effect that appellant was successor to the plaintiffs. It also appeared that confusion in business has resulted, and that orders intended for respondents were received by appellant, and that customers of plaintiffs were misled by the circular and supposed that appellant had succeeded respondents in business.

Shortly after the commencement of this action and before the hearing on which the injunction order was granted, Henry Phelps Hildreth died. Other facts were stated in-the moving affidavits tending to show that appellant was not acting in good faith in the use of the name “ Hildreth,” which he caused to be placed before his own as has been seen., These facts were controverted by appellant’s affidavit.

We think the moving papers were sufficient to justify the inference of such bad faith in this regard, and to warrant an injunction. The order granted, however,- is too broad, in that it absolutely enjoins the use of the name “ Hildreth ” by the appellant in his business. Doubtless this was owing to the death of Hildreth, it not appearing that appellant had any right to continue the use of his name.

An individual has a right to use his own name in connection with his business and in advertising the same, provided he acts in good faith and does not deceive the public or mislead those with whom he seeks to do business as to the identity of his business or his firm to the injury or prejudice of others competing in the same line of business. (Devlin v. Devlin, 69 N. Y. 212; Meneely v. Meneely, 62 id. 427.) The rule was well stated by Rapallo, J., in Meneely v. Meneely (supra), as follows: The manner of using the name is all that would be enjoined, not the simple use of it; for every man has the absolute right to use his own name in his own business, even though he may thereby interfere with or injure the business of another person bearing the same name, provided he does not resort to any artifice or contrivance for the purpose of producing the impression that the establishments are identical or do anything calculated to mislead. Where the only confusion created is that which results from the similarity of the names the courts will not interfere. A person cannot make a trade mark of his own name, and ■ thus obtain a monopoly of it which will debar all other persons of the same name from using their own names in their own business.” We think he has the same right to form a copartnership with an individual of any name and to use the name of his copartner in connection with the business or in advertising it, and he should not be enjoined from so doing.

If upon the trial the plaintiffs establish a case for permanent injunction the court will protect the defendant’s rights by confining the injunction to the manner of using the name as indicated by these authorities. So far as this appeal is concerned, we will merely modify the injunction order by adding at the end of the enjoining clause the words without the further order of the court,” and as thus modified it is affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien, McLaughlin and Hatch, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, with ten dollars costs and disbursements.  