Blumenthal v. Strauss , 60 N.Y. Sup. Ct. 501 ( 1889 )

Brady, J.

Prior to December 24,1888, the parties to this action were co-partners, carrying on business at 444 Broadway, in this city, under the firm name of Strauss & Co. It appears that on the day mentioned the firm was dissolved, the plaintiff conveying to the defendant all and singular his right, title, estate, and interest in and to the assets of the said firm of any and every nature, kind, and description. The plaintiff subsequently formed a copartnership with one Boas, and dealt in many of the same goods as those also dealt in by the firm of Strauss, Blumenthal & Co. The defendants have since the dissolution continued the business at Ho. 444 Broadway, and, continuing the old sign of the firm on the outside of the building, added to it another sign, containing the words, “Adolph Strauss & Co., Successors to.” And it appears-that they also used the stationery of the old firm, changing it by stamping thereon the same words. It will have been observed that nothing in the transfer in its whole scope grants in any form the right of using the plaintiff’s name, or the right to declare themselves the successors of the old firm. Indeed, from the fact that the plaintiff purchased a part of the stock in trade of the old Arm, the indication was of an intention to conduct a kindred business. There is nothing in the facts and circumstances, duly and closely considered, which justifies the conclusion that by the agreement of dissolution the plaintiff designed to grant, or that the defendants expected to acquire by it, the right to assert that they were the successors to the business of the old firm, or of the- members of the old firm; and in the absence of such an agreement, express or implied, there is no right so to employ the name of one of the partners on dissolution, or so to assert in reference to the whole business, since the decision of the court of appeals in Morgan v. Schuyler, 79 1ST. Y. 490, a decision which has not been questioned. That is a kindred case, and it was said, in considering the question, that it was evidently not the intention of the parties that the defendant in conducting his business was in any manner to use the plaintiff’s name, either in combination or as Morgan & Schuyler, or in subservience to it, by advertising himself the successor to that firm; and also that it was not claimed that there was any express contract to that effect, and that none could be implied either from the language of the agreement actually made or from any fact or circumstance connected with it. The language of the transfer in this case is no broader than in that. The learned justice in the court below considered that adjudication decisive, and in this we think he was right. An examination of the cases cited by the appellant does not justify a contrary conclusion. They relate to the good-will of a business, and to the right to its trade-marks, upon an agreement kindred to that involved in this case. It is not deemed necessary to go into a detailed statement of these various cases, but it is considered sufficient to state the general proposition that none of them involves the precise question here discussed, and which was presented to and disposed of by the court of appeals, as already stated. For these reasons it is thought that the order appealed from should be affirmed,, with costs and disbursements. All concur.