Opinion
January 20, 1947.
Action to restrain the defendant from manufacturing and selling ice refrigerators under its corporate name and requiring it to desist from unfair competition. Order granting defendant's motion to dismiss the complaint on the ground that it fails to set forth facts sufficient to constitute a cause of action reversed on the law, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave to defendant to answer within ten days from the entry of the order hereon. The complaint is sufficient as a matter of mere pleading. ( Higgins Co. v. Higgins Soap Co., 144 N.Y. 462; Lerner Stores Corp., v. Lerner Ladies Apparel Shop Inc., 218 App. Div. 427; Henry Mfg. Co., Inc., v. Henry Screen Mfg. Co., Inc., 204 App. Div. 27, 29.) Whether or not the defendant's manner of doing business constitutes unfair competition or invades the plaintiff's rights in respect of its corporate name should await the trial, when it may be determined as a matter of fact whether or not, under the proof adduced in respect of surrounding circumstances, the name of the defendant is so similar to that of the plaintiff as to be likely to mislead a buyer of average caution intending or desiring to do business with the plaintiff. Carswell, Acting P.J., Johnston, Adel, Aldrich and Nolan, JJ., concur.