Opinion
06-19-1905
JOHNSON v. SEABURY & JOHNSON.
Willard P. Voorhees and Archibald Cox, for complainant. Brinkerboff A. Fielder, for defendant
Suit by Johnson A. Johnson against Seabury & Johnson. Defendant moves to suspend injunction pending appeal. Motion granted.
See 61 Atl. 5.
Willard P. Voorhees and Archibald Cox, for complainant. Brinkerboff A. Fielder, for defendant
BERGEN, V. C. This court having decreed complainant's right to the aid of its restraining order, application is now made by the defendant to suspend or stay the issuance of the injunction decreed during the consideration and until the determination of the defendant's appeal by the Court of Errors and Appeals. The statute (P. L. 1902, p. 510) enacts that no such appeal shall suspend or modify the operation of an injunction without an order to that effect either by this or the appellate court, and that "such suspension or modification shall extend only so far as may be necessary to preserve the subject of the appeal, and shall not in any case be allowed to destroy the right established, or protected, by the order or decree appealed from." It therefore follows that the right to exercise the power invoked depends upon the solution of the question whether its allowance will destroy the right established by the decree. If it does not, the stay may be allowed, but only so far as may be necessary to preserve the subject of the appeal. It is quite evident that the purpose of the statute is to give the successful party the immediate benefit of his decree, unless its execution will result in so changing the rights and property of the appellant as to render inefficacious his success in the appellate court, and deprive that court "of the ability to render anything more than a merely nominal decree." In other words, if the preservation of existing conditions are necessary to restore to the appellant his rights and property, if there be a reversal of the decree below, then the power to stay, to the extent permitted by the statute, is conferred, and in most cases, if not all, should be exercised.
The contest between these parties which resulted in the present decree arose over the respective rights of the parties to the use of certain trade symbols in connection with a special dressing of packages containing merchandise of the same general class and character, although not perhaps of an equal degree of fineness and quality. The taking of the testimony and the argument of the cause covered a period of nearly, if not quite, five years. No preliminary injunction was asked for, and during this period each party continued the use of the symbols and dressing complained of, and the consequent distribution of their respective goods in large quantities all over the country. It is quite manifest that the enforcement of complainant's decree will work a great, and almost irreparable, injury to the defendant, which it ought not to be called upon to bear, if on final hearing it should appear that this court has mistaken its rights and made an erroneous decree. Nor can I perceive that the suspension of the order will in any way destroy the right established or protected by the order or decree appealed from. The rights of the complainant can be as amply protected if the decree appealed from should be affirmed, as it can be now, saving the incidental loss in the conduct of its business during the pendency of the appeal resulting from what this court has determined to be unfair competition; a loss, if any, which can be readily adjusted upon a bill for an accounting.The interests involved are large, and the result to the unsuccessful party will be, in a degree, serious. Therefore, being of opinion that the present enforcement of this decree by injunction would not preserve to the appellant the subject of the appeal as fully as it would be entitled should the decree be reversed, and that the allowance of the stay will not destroy the right established or protected by the order or decree appealed from, I will allow the application.
The complainant is entitled to its order for an injunction, and the defendant to an order suspending the operation of the injunction until the appeal shall have been disposed of according to law. Costs will not be allowed to either party.