Opinion
No. 38/633.
11-09-1914
HUFF et al. v. WALLACE.
George M. Shipman, of Belvidere, and Egbert Rosecrans, of Blairstown, for complainants. Edward F. Merrey, of Paterson, for defendant.
Suit by Lester B. Huff and another against Wilmarth Wallace. Preliminary injunction denied.
George M. Shipman, of Belvidere, and Egbert Rosecrans, of Blairstown, for complainants. Edward F. Merrey, of Paterson, for defendant.
LEWIS, V. C. The application in this case is for a preliminary injunction restraining the defendant, Wallace, from using the name on his garage "The Blairstown Garage." The complainants are one Stout, the owner of the Blairstown Hotel, and of a small garage in the rear of the same, and Huff, the lessee of the said garage. It is asserted, on behalf of the complainants, that the small garage in the rear of the hotel has been known for years as the Blairstown Garage; that the defendant, Wallace, who was a tenant of Stout prior to the leasing to Huff, took away the sign from the garage at the hotel at the termination of his tenancy, and has placed it upon a new garage established by him in another part of Blairstown. A large number of affidavits are produced by the complainants from people who swear that the garage at the rear of the hotel was called the Blairstown Garage. These affidavits are not satisfactory in establishing any property right in the complainants in the name "The Blairstown Garage," as for years the only garage in Blairstown was this one in the rear of the hotel. Stout, the owner of this place, never erected a sign upon it, but used it for housing automobiles, and some little repair work was done within its walls. The first tenant of Stout, Hogan, claims that he traded in the name of "The Blairstown Garage." His affidavit goes on to say that he had goods billed in the name of "The Blairstown Garage." He, however, had no sign upon the property, and the affidavits of the defendant are to the effect that this was known as "Hogan's Garage." The defendant, Wallace, was the successor to Hogan, as Stout's tenant. Affidavits produced in his behalf on this motion show that he traded under and by the name of "The Blairstown Garage"; that he put up the sign on the building "The Blairstown Garage"; that his credit was established in this name; that his letter heads and vouchers bore this head line. Before the expiration of his lease, and in January, 1914, he caused the statutory certificate to be filed in the clerk's office of Warren county, certifying that he was the owner of "The Blairstown Garage." On April 1, 1914, when he left the garage, he took down the sign from the building and put it up on a new building, occupied by him for similar purposes in the town. He is now doing business under the name "The Blairstown Garage." On about April 10, 1914, the complainant Huff put a sign on his place reading"Garage," and about this time also put up two other signs on the public highways in the town, each bearing the words "Hotel Garage" and indicating the garage in the rear of the Blairstown Hotel. Subsequently Huff put up the word "Blairstown" above the word "Garage" on the hotel garage.
It seems to me perfectly clear that the first use of the words "The Blairstown Garage" as a trade-name was by the defendant, Wallace. His whole course of action indicates an intention to use this name in his business. He has traded under it exclusively ever since he began the automobile business. He has received an extended credit in this name. His property right in it appears to be established, and if this is so, his right to move the sign cannot be questioned. I think the case of Busch v. Gross, 71 N. J. Eq. 508, 64 Atl. 754, sustains this position and also disposes of the very interesting question raised by counsel of the complainants as to the property right of the complainant Stout in the name "The Blairstown Garage" arising from his ownership of the Blairstown Hotel.
Of course all the facts in relation to this application cannot be developed on affidavits. The oral testimony will be necessary to establish the status of the various parties to this motion. At this time, however, from my consideration of the affidavits and the oral arguments of counsel, I am satisfied that it is not a case in which a preliminary injunction should go.
The rule must be discharged and the restraint upon the defendant removed.