to his tenants, their guests, and the public, as he had no exclusive right to the use of such name, but at most could only restrain its use under such circumstances as were calculated to mislead the public. [Ed. Note. For other cases, see Trade-Marks and Trade-Names, Cent. Dig. § 88; Dec. Dig. 78.] Dowling, J., dissenting. Submission on an agreed statement of facts of a controversy between William Waldorf Astor and the West Eighty-Second Street Realty Company and others. Judgment for defendants. The submission was 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 6 nor more than 12 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. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. Montgomery & Peabody, of New York City, for plaintiff. 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 For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 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, 25 N. E. 235, 9 L. R. A. 576. 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, 147 N. Y. Supp. 617, 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., and MCLAUGHLIN and LAUGHLIN, JJ., concur. DOWLING, J., dissents. DIME SAVINGS BANK OF BROOKLYN v. BUTLER et al. (No. 7079.) (Supreme Court, Appellate Division, First Department. April 9, 1915.) 1 QUIETING TITLE 21-ACTION TO DETERMINE ADVERSE CLAIM-“CLAIM IN THE NATURE OF AN EASEMENT"-"EASEMENT." A suit, under Code Civ. Proc. § 1638 et seq., to compel the, determination of any claim adverse to plaintiff, including any claim in the nature of an easement, might be maintained to determine defendants' claim that plaintiff, in erecting upon its adjoining property a private residence, must leave an alley or passageway leading into the rear of the lot for an entrance thereto, and that it could not erect thereon any tenement house or flat, since defendants' claim was a "claim in the nature of an easement," including the elements of domination over plaintiff's property for For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes defendants' benefit and advantage; such claim being often spoken of as an "easement." [Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 51-53; Dec. Dig. 21. For other definitions, see Words and Phrases, First and Second Series, Easement.] 2. QUIETING TITLE 34-ACTION TO DETERMINE ADVERSE CLAIM-PETITION. It was sufficient for defendant to allege, in the language of Code Civ. Proc. § 1639, that defendant "unjustly" made a claim, without stating the facts showing wherein the injustice consisted, or undertaking to set forth the source and basis of defendant's claim; that being for defendant to assert, if standing upon his claim. [Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 69, 71, 72, 76, 77; Dec. Dig. 34.] Appeal from Special Term, New York County. Action by the Dime Savings Bank of Brooklyn against Louise C. Butler and others. From an interlocutory judgment overruling demurrers to the complaint (88 Misc. Rep. 698, 152 N. Y. Supp. 448), defendants appeal. Affirmed, with leave to defendants to withdraw demurrers and to answer on payment of costs. Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ. J. Edwards Wyckoff, of New York City, for appellant Butler. John Frankenheimer, of New York City, for appellants Nathan and others. Samuel Hoff, of New York City, for appellant Lispman. SCOTT, J. Plaintiff, the owner of a plot of land on the southeast corner of Madison avenue and Seventy-Second street in the city of New York sues under section 1638 et seq. of the Code of Civil Procedure to determine the validity of a claim asserted with respect to said property by the defendants, owners of property in the same block. The nature of the claim as stated in the complaint is that neither the plaintiff nor its successors or assigns can erect, or cause or permit to be erected, upon said property, any building or buildings except of brick, stone, or iron, with roof of slate or metal, not less than four stories in height, of which the fourth story may be represented by a mansard roof, to be used and occupied exclusively for private dwelling houses, such building or buildings to stand upon or cover the whole front of the lot upon which it is built, without an alley or passageway leading into the rear of said lot for an entrance thereto as distinct from said dwelling house or houses, and that neither the plaintiff, nor its successors in interest or assigns, can erect, suffer, or permit upon any part of the said real property any tenement house or flats. [1] The nature of the defendants' claim is not that they, or any of them, have any title to plaintiff's property, or lien thereon, or any right themselves to use or enjoy it, but that they have the right to exercise dominion over it to the extent that plaintiff may not, without their consent, use and enjoy it in any manner and for any purpose that it may For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes see fit, or otherwise than in accordance with respondents' claim of domination. It is argued with much learning and force that this right which the defendants claim is not technically an easement over plaintiff's property, and that defendants' claim as stated in the complaint cannot be a true easement, because not alleged to have arisen in grant or by presumption of a grant. It is not necessary to pass upon this contention (see Simmons v. Crisfield, 197 N. Y. 365, 367, 90 N. E. 956, 26 L. R. A. [N. S.] 663), for if it be conceded still it does not follow that the claim is not one which may be litigated in an action brought under the above-mentioned sections of the Code. The language of section 1638 is that the action may be brought to compel the determination of any claim adverse to that of the plaintiff, "including any claim in the nature of an easement therein." The claim which the defendants admit that they make, whether or not technically an easement, is certainly a claim "in the nature of an easement," for it includes the elements of a claim to domination over plaintiff's property for the benefit and advantage of the defendants. For this reason, such a claim, although created by covenant, and not by grant, is frequently spoken of judicially as an "easement," and is held to be such an incumbrance upon land as to justify the refusal of a vendee to accept the title. [2] The objection that it is insufficient to allege in the words of the Code that defendants "unjustly" make a claim, and that the plaintiff should state facts showing wherein the unjustness consists, seems to be answered by King v. Townshend, 78 Hun, 380, 29 N. Y. Supp. 181. Nor is it necessary that the plaintiff should undertake to set forth the source and basis of defendants' claim. It is sufficient that the defendant makes a claim; its source and validity is for him to assert, if he stands upon his claim. We are of opinion that the complaint states a good cause of action. The judgment appealed from must therefore be affirmed, with costs, with leave to appellants to withdraw their demurrers and answer within 20 days, upon payment of costs in this court and in the court below. All concur. NEWCOMB v. LA ROE. (No. 7036.) (Supreme Court, Appellate Division, First Department. April 9, 1915.) 1. TRIAL 177-DIRECTION OF VERDICT-MOTION FOR DIRECTED VERDICT. Where, at the close of the evidence, both parties moved for a directed verdict, the questions of fact were left to the court. [Ed. Note. For other cases, see Trial, Cent. Dig. § 400; Dec. Dig. 177.] 2. MONEY LENT 7-COMPENSATION FOR SERVICES-EVIDENCE-SUFFICIENCY. In a suit to recover moneys advanced by plaintiff's testator to defendant, evidence held to snow that the sums were advances for services rendered. [Ed. Note. For other cases, see Money Lent, Cent. Dig. §§ 11-13; Dec. Dig. 7.] For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 3. JUDGMENT 721-CONCLUSIVENESS-MATTERS ADJUDICATED. Defendant, who performed services for plaintiff's testator, was bequeathed a legacy and an annuity. She presented a claim against the estate for services rendered, and plaintiff sued for a construction of the will, to determine whether her acceptance of the legacy and annuity barred her claim. The trial court found in defendant's favor on her claim for services. The findings on appeal were reversed, on the theory that the validity of the claim was not in issue. At that time there was pending a suit for advances made by the testator. Held, that the judgment on appeal in the will case did not adjudicate that advances made by the testator were not for services rendered, and in a suit for advances that question could be litigated. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1238, 1252; Dec. Dig. 721.] Appeal from Trial Term, New York County. Action by Warren P. Newcomb, as executor of the last will and testament of H. Victor Newcomb, deceased, against Jeanne La Roe. From a judgment for defendant, plaintiff appeals. Affirmed. See, also, 162 App. Div. 906, 146 N. Y. Supp. 1102. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, DOWLING, and HOTCHKISS, JJ. D. Cady Herrick, of Albany, for appellant. Nelson L. Robinson, of New York City, for respondent. LAUGHLIN, J. [1] This action was brought on the theory that $757.50, advanced by the plaintiff's testator for the purchase of a bond for the defendant by the stockbrokerage firm of Degener & Burke, and other moneys, aggregating $507.56, advanced by him to her for her account with said firm, or paid to said firm by him for her account, constituted loans from him to her, aggregating $1,265.06, and judgment was demanded for that amount. The defendant pleaded payment, and proved the repayment of $500 by her check, and that evidence is uncontroverted. At the close of the evidence, both parties moved for a direction of a verdict, thus leaving the facts to the court, and a verdict was directed for the defendant. [2, 3] The principal contention made by the appellant is that the judgment of this court on the appeal in another action, known as "Action No. 1," which was by the same plaintiff against the same defendant, and was for the construction of the will of plaintiff's testator with respect to the effect, on a claim for services made by the defendant, of a legacy and an annuity to her, and in the event that it should be decided that the acceptance of the legacy and annuity did not constitute payment of her claim for services to have the amount of her claim for services determined, constitutes a conclusive adjudication that none of the moneys sought to be recovered in this action were advanced to the defendant on account of services, or were by agreement between her and the testator, express or implied, to be applied on or toward the payment of her claim for such services. This contention is based upon the reversal by this court on the appeal in the other action (Newcomb v. La Roe, 160 App. Div. 819, 146 N. Y. Supp. 133) of the eleventh and twentieth findings of fact made therein by the trial court. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |