#### Charles Bellows, Plaintiff, *v.*Arthur C. Bellows et al., Defendants.

(Supreme Court, New York Special Term,

August, 1898.)

' Injunction — Trade name — A general assignment does not pass the. assignor’s right to use his own name.

A business had been conducted under the name of “ Charles Bellows and Company ” from 1853 to 1878, when the partnership and Charles Bellows, individually, made general assignments in the ordinary form. About twenty-five years later the general assignees assigned to the plaintiff, a son of Charles B'ellows, the right to use both names — that of Charles Bellows, provided- that any such right existed. After 1878 Charles Bellows continued the business as “ Charles Bellows, Agent ” for his wife M. B. Bellows, until his death. Thereafter, the words “ M. B. Bellows formerly ” were prefixed to the Sign and, by her will and a transfer from her, the business passed to the defendants, who represented themselves as.successors to the business of Charles Bellows, Agent.

Held, that under a general assignment, in the usual form, the right of an insolvent debtor to use his own. name did not pass from him; and that the plaintiff was not,- on the facts and in the absence of any evidence of fraud or confusion, entitled to an injunction restraining the defendants from using the name “ Charles Bellows ” in the manner stated.

Action for am injunction restraining the defendants from using a trade name.

Reeves, Todd & Swain (A. G. Todd, of counsel), for plaintiff.

John H. Montgomery (G. D. Beattys, of counsel), for defendants.

Stover, J.

This is an action to restrain the defendants from using the name of Charles Bellows in their business.

The complaint alleges that in the year 1847, one Charles Bellows, the father of the plaintiff, was established as dealer in wines and spirits, and for six years (until 1853) conducted the business under the name of Charles Bellows, and subsequently under the name of Charles Bellows *&*Oo. That about 1878 said Charles Bellows made an insolvent assignment for the benefit of creditors, and about the same year the firm of Charles Bellows *&*Oo. also *483made a general assignment for the benefit of creditors. Shortly after the assignment in 1878, Charles Bellows, Sr., started a business at 50 Broad street, conducting the same as agent for M. E. Bellows, his wife. This business was conducted in this form until his death, in 1890. -Plaintiff during this time was employed in the business conducted by Charles Bellows as agent, and after his death for a time managed the business for M. E. Bellows, as attorney. In the fall of 1890 the plaintiff, being unable to buy the business from his stepmother, started a business at .52 Broad street. Nearly a year afterwards he moved into New, street, and subsequently to his present location, No. 52 New street. From 1878 to 1890 the sign over the place of business at 50 Broad street was “ Charles Bellows, Agent.” After the death of Charles Bellows an additional sign was placed over the old one), on which was “ M. E. Bellows, formerly; ” so that since then the sign has read, *“*M. E. Bellows, formerly -Charles Bellows, Agent.” In 1891 M. E. Bellows assigned a half interest in the business to *A,*O. Bellows, and by her will gave the other half to O. E- S. Bellows. These two defendants carried on the business under the firm name of M. E. Bellows’ Sons, representing themselves as successors to the business formerly carried on under the name of Charles Bellows, Agent, until July, 1897, when they assigned the business to Kittie S. Bellows. The complaint contains the further allegation that the assignees of said Charles Bellows and of Charles B'ellows & Oo. sold the good will and name as aforesaid of the late Charles Bellows and the late Charles Bellows & Oo. to the plaintiff, and the plaintiff purchased and holds assignments of the same. These assignments were executed in September, 1897, just prior to the commencement of this action; they are for a nominal consideration, and the assignments of the right to use the name of Charles Bellows is conditioned upon any such right existing.

A great deal of testimony hás been given as to the various changes in business, and succession, as to title, etc., of the business at No. 50 Broad street, formerly owned by Charles Bellows; but it will be seen that the plaintiff’s cause of action is based upon the assignments, made by the assignor for the benefit of creditors, and unless the plaintiff has, through such assignments, obtained the right to use the name of Charles Bellows, he has stated no cause of action; because there is no evidence in the case to show that the use of the name of Charles Bellows by the defendants was calculated to, or did in any way deceive the public, or operate as a fraud upon any right of the plaintiff. There is no question of trade-mark, nor do *484I think the plaintiff has shown any exclusive right to the use of the name of Charles Bellows, or Charles Bellows & Co. If it- was claimed that plaintiff is the successor of the firm of Charles Bellows or Charles Bellows *& Go.,*and was entitled to the use of the name, the failure to comply with the statutory requirements, upon assuming the use of a partnership name, would be a sufficient answer.

But without discussing these inconclusive and hazy rights, .the main, if not the sole contention of the plaintiff, that he acquired by assignment a. right to use the| name, is utterly without foundation. While it is true that a person may, by proper assignment, convey the right to use his name in any business, yet such assignment must be an-unequivocal and direct conveyances of such right; and such right would not pass, under the ordinary phraseology of a general assignment for the benefit of creditors. -As was said in the cjase of Helmbold v. Helmbold Co., 53 How. Pr. 453: “ The name of a man is a part of-his being, so indissolubly connected with and attached to him, that we fail to see- how the one which distinguishes and separates him from all mankind, and enables the public to know him and that which he has prepared, can.be taken from him and given to- another, so that thq latter, by the use of such name, may vend and sell hia own preparations, as if they were-those of the former. * * * The unfortunate being whose property has been swept away by the vicissitudeis of business, has supposed his knowledge and reputation were still left to him as a. capital for new beginning. * . * * The name of (a man) must still belong to him, to whom his parents gave it. Ho law and no court can take it from him. The property which he had acquired belongs to his cre¡ditors, but the name and whatever of character, good or bad, belonging to it, and which he has himself made, are his, and must so continue to be until he voluntarily parts with them.”

* It will need no. elaborate reasoning to convince the average legal mind that a conveyance to an assignee by án insolvent debtor, under our assignment laws, by which under general designation property is described, would not include the right of the assignor to the use of his own name in the conduct of any business that he might thereafter undertake. And it would seem in this particular case that síich construction had been given by the assignee to the assignment; for the. very assignment by Which he undertakes to assign the right to the use of the name of Olearles Bellows, is subjected to the condition “ if any. ” existe. At the time the assignment was made '“.Charlee Bellows” was not the owner of the business, but-the style *485was “ Charles Bellows *&*Company,” and such, had been the name under which the business was conducted since 1853 (twenty-five years). And the fact that assignors have waited over twenty years before disposing of such right, is sufficient to bar the interference of a court of equity.

I do not think that the assignments executed in September, 1.897, operate to confer any light to the exclusive ufee of the iname of Charles Bellows by the plaintiff in this action. The business, at 50 Broad street has been continued since the death of Charles Bellows, by the various successors, and there is no attempt now to deceive the public by advertising that Charles Bellows does business there, but it is held out only that they have succeeded 1» the business formerly conducted by Charles Bellows, Agent, which is the fact. There is no fraud practiced upon the public or the plaintiff, and I can see no reason for the equitable interference of the court.

The complaint must be dismissed upon the merits, with costs.

Complaint dismissed, with costs.