Rockefeller Purchasing Corp. v. Rockefeller Center, Inc. ( 1935 )

Untermyer, J. (dissenting).

The jurisdiction of equity specifically to enforce contracts relating to real estate, even where there exists a concurrent right of action for damages at law, has been too long exercised and is too well established to admit of argument. That jurisdiction extends to contracts for leases in common with other estates in land (Pomeroy Specific Performance of Contracts [3d ed.], § 9, and authorities cited in note a) and was directly sustained by this court in Shea v. Keeney (155 App. Div. 628). Indeed it would lead to serious consequences if long term leases could not be so enforced.

If this were strictly an action for specific performance I think there could hardly exist any doubt that it could be maintained.' The fact that instead the plaintiff has demanded an injunction does not change the situation. If the plaintiff is entitled to a decree requiring the defendant to specifically perform the lease, it should certainly be entitled to the lesser remedy for which it asks. Instead of commanding the landlord to specifically perform its contract by putting the tenant in possession, the landlord would merely be required to desist from interfering while the tenant entered into possession. This is the substantial equivalent of specific performance in a negative form. If it be less, then equity should not refuse relief entirely because the plaintiff has demanded less than it is entitled to.

The Special Term expressed the opinion, also expressed in the prevailing opinion of this court, that mere similarity between the plaintiff’s corporate name and the defendant’s name as they appear in the caption of the summons and complaint, without allegation or proof of any other facts, is sufficient to establish a case of unfair competition so conclusively as to require the dismissal of the complaint on the theory of “ unclean hands.” It is also intimated in the prevailing opinion that this similarity of name was the reason for the defendant’s refusal to permit the plaintiff to take possession of the premises. Not only does the complaint not contain such an allegation but it is alleged that both the plaintiff and its assignor have duly performed all the covenants and conditions contained in the lease to entitle the plaintiff to the occupancy of the premises.

I do not agree that mere similarity of name is sufficient to entitle the defendant without interposing any answer or mating any proof to a dismissal of the complaint. If it is, then it must be held that a complaint alleging, or proof establishing, that the plaintiff’s name is similar to the defendant’s name is sufficient without more to justify a judgment for the plaintiff in an action for unfair competition. But mere similarity of name is not decisive on the question of unfair competition or “ unclean hands.” For aught that we know the defendant may have expressly consented to this use of the name. For aught that appears from the complaint plaintiff might have used the name before the defendant had used it. The nature of the plaintiff’s business may be such and it might be conducted in such a manner as not to justify the claim that it is likely to confuse the public. Although the corporate names are similar the plaintiff’s business might be conducted under an entirely different name as is often done. These and like considerations cannot be tested on a motion made upon the complaint alone merely because there is an apparent similarity in the names of the parties, but should be reserved for determination upon allegations which properly present the issue. (See Civ. Prac. Act, § 242.) As it is, we are acting upon mere suspicion in dismissing the complaint.

The order appealed from should be affirmed.

Order reversed, with twenty dollars costs and disbursements, and motion granted, with ten dollars costs.