(90 N. J. Eq. 564) HILTON v. HILTON. (107 A.) (No. 49.) (Syllabus by the Court.) 1. INJUNCTION 223(1), 230(1) TION-CONTEMPT-TRADE-NAME. VIOLA When a defendant has been enjoined from using in the clothing business the name of "Hilton" alone or in such a way as to lead the public to believe that his goods are the complainant's goods, or his business is the complainant's business, the question whether he has violated that injunction is one of fact. The test is whether the use by the defendant of the words in dispute is likely to deceive ordinary purchasers buying with such care as would usually be exercised in such transactions. A nice discrimination is not expected from the ordinary purchaser. Neither actual confusion where the necessary and probable tendency of the defendant's conduct is to deceive the public and pass off his goods or business as and for that of the complainant. Similarity, not necessarily identity, of name is recognized as a basis for relief. nor actual fraudulent intent need be shown TRENCHARD, J. This is an appeal by the defendant from an order in an unfair trade case adjudging the defendant guilty of contempt for violation of the decree entered upon remittitur from this court, modifying in part, and affirming otherwise, the decree made upon the final hearing of the cause. The complainant filed his bill November 18, 1916, setting forth that prior to June 24, 1916, he and the defendant had been engaged as partners in the clothing business under the name of "The Hilton Company"; that they had built up a large business in the city of New York, Brooklyn, and other cities not now requiring mention; that, in the course of the conduct of the business, the partnership had used the words "Hilton" and "Hilton's" alone and in combination with other words to designate and describe their merchandise, and as a trade-name; that they had expended large sums in advertising the business under such trade-names; that on June 24, 1916, the defendant had conveyed all of his right, title, and interest in the partnership to the complainant, including all his right, title, and interest to the name and The bill also alleged that, shortly before its filing, defendant had begun a competitive clothing business in the city of New York and other localities, and was conducting such business under the trade name "Hilton's." The bill further averred confusion and prayed relief. 2. INJUNCTION 223(1) VIOLATION OF good will of the business; that complainant -CONTEMPT TRADE-NAME. thereafter continued to conduct such business Where the complainant, Philip Hilton, had under such trade-names in the same localipurchased of the defendant, Joseph Hilton, the ties; that the business continued to be of latter's interest in the business, name, and good will of the clothing business of "The Hil- large volume; and that the same general ton Company," built up by both, by large ex-methods of advertising were continued. penditures in advertising, and the defendant, after establishing competing stores, had been enjoined from using the name "Hilton" alone or in such a way as to lead the public to believe that his goods and business were those of the complainant, the defendant was rightly adjudged guilty of contempt; it appearing that his competing stores were near the stores of the complainant, which the latter had continued under the original name and advertised as such, and that the defendant had adopted as his trade-name and for his signs the words "Jos. Hilton & Co.," and this is so even though, at the time of adopting such name, the defendant anticipated the formation of a partnership with his two sons and one Tennenbaum, which was in fact afterwards entered into. Appeal from Court of Chancery. etc. After hearing, Vice Chancellor Lane in his conclusions, which are reported in 102 Atl. 16, held that the use by the defendant of the trade-name "Hilton's," in the manner it was used in connection with stores in close proximity to those of the complainant, could not but lead to confusion and tend to injure the complainant in his business, and he therefore enjoined the defendant. An appeal was taken, and this court in an Suit by Philip Hilton against Joseph Hil- opinion reported in 104 Atl. 375, L. R. A. 1918F, 1174, expressly and unqualifiedly held ton to restrain unfair use of a trade-name, that "the evidence entitled the complainant From an order adjudging defendant to the relief prayed for," but not exactly that guilty of contempt (106 Atl. 139) for violation granted in the Court of Chancery, and acof the decree entered upon remittitur from cordingly, on remittitur, a decree was enterthe Court of Errors and Appeals, defendanted in the Court of Chancery on July 18, 1918, appeals. Affirmed. See, also, 102 Atl. 16; 104 Atl. 375, L. R. A. 1918F, 1174; 105 Atl. 65. Selick J. Mindes and Robert H. McCarter, both of Newark, for appellant. Waldron M. Ward and John R. Kardin, both of Newark, for respondent. enjoining the defendant Joseph Hilton: "From using the name 'Hilton's' or 'Hilton,' alone or in such manner as to lead or induce the public to believe that the goods manufac tured or sold by him are manufactured or sold by complainant and that the business conducted by defendant is the same as or a part of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes business conducted by complainant, from using any emblem or device resembling the trade emblem of complainant in any way in his business, and from conducting his business so as to deceive the public and induce it to believe that the goods manufactured or sold by defendant were manufactured or sold by complainant and that the business conducted by defendant is the same as or a part of the business conducted by complainant." the words in dispute is likely to deceive ordinary purchasers buying with such care as would usually be exercised in such transactions. Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164, 24 Atl. 658; Johnson v. Seabury, 69 N. J. Eq. 696, 61 Atl. 5; National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369, 91 Atl. 126. A nice discrimination is not expected from the ordinary purchaser. International Silver Co. v. William H. Rogers Co., 67 N. J. Eq. 646, 60 Atl. 187, 110 Am. St. Rep. 506, 3 Ann. Cas. 804. Neither actual confusion nor actual fraudulent intent need be shown where the necessary and probable tendency of the defendant's conduct is to deceive the public and pass off his goods or business as and for that of the complainant. International Silver Co. v. Wm. H. Rogers Corp., 66 N. J. Eq. 140, 57 Atl. 725; Wirtz v. Eagle Bottling Co., 50 N. J. Eq. 164, 24 Atl. 658; Rubber & Celluloid Harness Trimming Co. v. Rubberbound Brush Co., 81 N. J. Eq. 419, 88 Atl. 210, Ann. Cas. 1915B, 365; National Biscuit Co. v. Pacific Coast Biscuit Co., Following the service upon the defendant of this decree (according to the Vice Chancel lor), for a considerable time he conducted his business regardless of such decree (see opinion in first contempt proceedings, 105 Atl. 65), but later added to the word "Hilton's," on his store signs, the words "J. Hilton, Prop." Then the complainant, on August 23, 1918, instituted the first contempt proceedings. After hearing, the Vice Chancellor adjudged the defendant guilty, but purged him of the contempt upon payment of costs and counsel fees, in view of his discontinuance of such signs after the commencement of the proceed-83 N. J. Eq. 369, 91 Atl. 126. Similarity, not ings. But since no appeal was taken in that proceeding, we are not concerned with that, except as it may throw light upon the good faith of the defendant's conduct now in ques tion. The defendant then adopted as the style of his trade-name the words now in dispute, "Jos. Hilton & Co." His newspaper advertising under this name began in the latter part of October, and his new signs were put up in the latter part of November. The complainant filed his petition on December 23, 1918, alleging the use of this name in the conduct of the defendant's business in New York City and elsewhere, and praying that the defendant be adjudged guilty of contempt, and after hearing he was adjudged guilty. [1, 2] The issue made by the petition and answer (to which the scope of the hearing was strictly confined), and now presented on this appeal, is whether the use by the defendant of the words "Jos. Hilton & Co.," as the style under which he conducts his clothing business in competition with the complainant, leads or induces the public to believe that the goods manufactured or sold by him are manufactured or sold by complainant, and that the business conducted by the defendant is the same as, or part of, the business conducted by the complainant. necessarily identity, of names is recognized as a basis for relief. International Silver Co. v. William H. Rogers Corp., 66 N. J. Eq. 119, Eq. 646, 60 Atl. 187, 110 Am. St. Rep. 506, 3 57 Atl. 1037, 2 Ann. Cas. 407; s. c., 67 N. J. Ann. Cas. 804. With these principles in mind, we turn now to the facts to which they must be applied. It appeared that the business of the complainant, in which the defendant was formerly a partner, had been conducted for many years under the name "The Hilton Company"; that it was common practice in the advertising and other trade uses of the name to abbreviate the word "Company" to "Co."; and that this alternate usage was continued by the complainant to the present time, by extensive advertisements by signs, in newspapers and in "Tube" trains running into New York City to points near which the stores of the complainant and the competing stores of the defendant are located. It also appeared that the stores opened by the defendant were near those of the complainant and necessarily in sharp competition therewith, and so continue to the present time. Eliminating entirely the abundant proof of actual cases of confusion in this case (the admissibility of which is disputed), and considering all of the facts, and bearing in mind the whole course of the controversy, and the precedent wrongful use of the name (see InWe think that issue must be determined ternational Silver Co. v. Rogers, 72 N. J. Eq. against the defendant. The rights of the par- 937, 67 Atl. 105, 129 Am. St. Rep. 722), there ties were settled in general terms by the final was ample and persuasive proof before the decree. Thereby the defendant was restrain- court of the likelihood of confusion. This ed from using the name "Hilton" in such proof is found in the testimony (read in the manner as to mislead the public. Whether or light of common knowledge), and in the innot he has done so is a question of fact. The ferences properly deducible from the testimotest is whether the use by the defendant of | ny, relating to the conditions of competitive (107 A.) (93 N. J. Law, 247) trading in the retail clothing business, to the respective methods employed by the parties MCCARTY v. TOWN OF WEST HOBOKEN. CAHILL v. SAME. (Nos. 44, 45.) June 20, 1919.) in placing themselves before the public, to the respective locations of their stores, particularly in association with the "Tube" advertising of the complainant, to the likeness of the store signs of the parties in the im- (Court of Errors and Appeals of New Jersey. pression made upon the eye of the casual and ordinary observer, to the absence of effectiveness of the abbreviation "Jos." in conveying to the mind of the public that the defendant was not the original Hilton, and to the similitude of the names respectively employed by the parties. (Syllabus by the Court.) APPEAL AND ERROR 854(2)—ASSIGNING WRONG REASON FOR RIGHT RESULT-ASSIGNMENT OF ERROR. When on appeal it is found that the court below reached a right result, even if upon a wrong reason, the judgment should not be disturbed; therefore errors may be assigned upon matters in the record only, and not upon the reasoning which induced the rendering of the judgment under review. Appeal from Supreme Court. Separate actions by Patrick McCarty and by Thomas J. Cahill against the Town of West Hoboken, in the County of Hudson. Judgment for plaintiff in each case, and defendant in each case appeals. Affirmed. See, also, 90 N. J. Law, 398, 101 Atl. 417. Frederick K. Hopkins, of Hoboken, for appellant. John J. Fallon, of Hoboken, for respondents. PER CURIAM. These two cases are identical. On motion to strike out the answers and for summary hearing before Mr. Justice Parker the hearing resulted in the granting of the motions and the entering of appropriate judgments which have been removed into this court on appeal. It will be observed that the defendant, in the trade-name which he has adopted, has retained the name "Hilton," the most prominent name in complainant's trade-name. He has substituted for the word "The" the diminutive "Jos." He has substituted for "Company" written out, the word "Co.," and has put between "Hilton" and "Co." the symbol "&." He is not attempting to use his own name "Joseph Hilton" alone. What he is doing is using a trade designation which contains a part of his own name in conjunction with another word also a part of the complainant's designation. This has the appearance of a studied attempt to adopt a tradename as nearly like that of the complainant as possible without being identical. It is probable that there is no distinction in the public mind between the word "Company" written out and "Co." The defendant's contention that he adopted the diminutive "Jos." because he was so known to the trade is not supported by convincing proof. It is undisputed that when he adopted the trade-name of "Jos. Hilton & Co." he was in business alone. He says that the reason he adopted it was that he "anticipated" taking in his two sons and one Max Tennenbaum as partners. It appeared at the hearing that in fact this partnership was formed December 26, 1918, three days after the petition was filed. But the fact that he "anticipated" taking in partners did not justify him in adopting the trade-name of "Jos. Hilton & Co.," which we think, in the circumstances of this case, was a violation of the decree of this court. If, as he says, at the time of adopting his trade-matters not on the record, but in the written name, he contemplated partnership with his two sons and Max Tennenbaum, it would have been a simple matter for him to adopt a name which would indicate a desire to keep well away from the dividing line between violation of and compliance with the injunc-out. tion. This he did not see fit to do, although The question to be determined upon review one can readily think of several combinations of the names of the defendant and his prospective partners which could have been adopted and which would not at all meet with the disapprobation of the court. The order under review will be affirmed, with costs. Two grounds of reversal have been assigned: One that the Supreme Court found in favor of the plaintiff instead of defendant. This is a good assignment; the other that the Supreme Court decided as follows, etc. Here follow excerpts from the court's opinion, upon which error cannot be assigned. In State, Ruckman, v. Demarest, 32 N. J. Law, 528, it was held that to assign errors in opinion of the court, alleging imperfections and defects in the reasoning by which the court reached its conclusion, is wholly unwarranted, and that the court of its own motion will order such assignments stricken in an appellate court is always as to the propriety of the judicial action of the court below, and not the soundness of the reason which prompted it. Gillespie v. Ferguson Co., 78 N. J. Law, 470, 74 Atl. 460; Sadler v.. Young, 78 N. J. Law, 594, 75 Atl. 890; Brientnall v. Sadler, 82 N. J. Law, 405, 81 Atl. 819; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Pierson v. N. Y. & S. W. R. Co., 83 N. J. Law, I case made and provided" does not render it in661, 85 Atl. 233; McAndrews & Forbes Co. v. Camden, 78 N. J. Eq. 244, 78 Atl. 232. It must be perfectly obvious that, if the court below reached a right conclusion, even if upon a wrong reason, the judgment should not be disturbed; and therefore it is that errors may be assigned upon matters in the record only, and not upon the reasoning which induced the rendering of the judg ment under review. The action of the trial judge upon a motion to quash an indictment is discretionary, and will not be reviewed on strict writ of error. 3. INTOXICATING LIQUORS 213-HABITUAL SALE OF INTOXICATING LIQUORS-SUFFICIENCY OF INDICTMENT. When the facts set forth in an indictment clearly charge, in substance and effect, the habitual sale of intoxicating liquors contrary to law, it is valid, under paragraph 74 of the Criminal Procedure Act, even though the word "habitual" is not employed therein. 4. INDICTMENT AND INFORMATION 203JUDGMENT UPON GENERAL VERDICT GUILTY-BAD COUNT-REVERSAL. OF A judgment upon a general verdict of guilty will not be reversed because of a bad count in an indictment, where the indictment contains a good count, and the penalty imposed is authorized by law for conviction upon the good count. 5. INTOXICATING LIQUORS 221-UNLAWFUL SALE-INDICTMENT. valid, even though there is more than one stat- The admission of illegal evidence will not avoid a judgment in a criminal case on error not have injuriously affected the defendant on if it plainly appears that such evidence could the merits of the case. TRENCHARD, J. Three indictments are sent up with writs of error in these cases, each one of which is based on the sale of intoxicating liquor without a license. One indictment is against Matarazza alone; another against Artese alone; and the third against the two jointly. By consent they were tried and have been argued here together. [1] As to the conviction on the third indictment it appears that no sentence has as yet been pronounced, and consequently there is nothing before us for review. [2] In the remaining cases error is assigned because the trial judge refused to grant a motion to quash; but the action of the trial judge upon a motion to quash an indictment is discretionary, and will not be reviewed on strict writ of error. See cases collected in State v. Riggs, 106 Atl. 467. The next ground upon which we are asked to reverse these convictions is that the indictments are void because of duplicity, the pith of the contention being that the various counts each charge separate sales to different individuals on different occasions. [3] It is not clear that the motion in arrest of judgment, under which this question is sought to be raised, is properly before us; The fact that an indictment for the habitual but we will assume for the purposes of this sale of intoxicating liquors contrary to law decision that it is. We further assume, withcharged that the sales were made "without li-out deciding. that the first three counts in cense for that purpose first had and obtained in the indictments under review are bad; but, the manner prescribed by the statute in that even so, the fourth count in each is good un uors. (107 A.) The foregoing observations in effect dispose of every question properly raised and argued. The writ of error bringing up the indictment upon which no sentence was passed will be dismissed, and the judgments upon the two remaining indictments will be affirmed. (90 N. J. Eq. 576) der paragraph 74 of our Criminal Procedure | defendants conducted the place was otherAct (C. S. p. 1844), prescribing the form of wise conclusively established, and indeed an indictment for the offense of maintaining was not disputed. a common-law nuisance or keeping a disorderly house, where the offense sought to be punished consists wholly in the unlawful sale of spirituous, vinous, malt or brewed liqIt is true that the word "habitual" was not employed in this count, but it charged that the defendant in Atlantic City, on December 1, 1915, and on divers other days and times between that day and November 1, 1917, in a certain designated house unlawfully did sell and knowingly permit to be sold to certain designated persons certain HITCHCOCK v. AMERICAN PIPE & CONdesignated vinous, spirituous, and malt liqSTRUCTION CO. uors (the same not being compounded and intended to be used as medicine) by less meas- (Court of Errors and Appeals of New Jersey. ure than a quart, without license for that purpose first had and obtained in the manner prescribed by the statute in that case made and provided, to the evil example of all others in like case offending, contrary to the statute in such case made and provided. We therefore think the facts set forth in this count clearly charge in substance and effect the habitual sale of intoxicating liquor contrary to law, and that it is valid. State. v. Reily, 66 N. J. Law, 399, 52 Atl. 1005. [4] That being so, the presence of the bad counts will not result in reversal of the judgment upon the general verdict of guilty, because the rule is that such a judgment will not be reversed because of a bad count in the indictment where the indictment contains a good count, and the penalty imposed is (as here) authorized by law for conviction upon the good count. State v. Mount, 72 N. J. Law, 365, 61 Atl. 259. [5] The fact that the indictments charged that the sales were made "without license for that purpose first had and obtained in the manner prescribed by the statute in that case made and provided" does not render them invalid, even though there is more than one statute by virtue of which a license to sell intoxicating liquors may be granted in the municipality where the sales in question were made. [6] The last point is that the trial judge improperly admitted in evidence a card from the office of the mercantile appraiser, purporting to show that a mercantile license was granted to the defendant to conduct a boarding house at the place where the intoxicating liquors were sold. This evidence was offered by the state to show that the defendants conducted the place in question, and was objected to as not competent for that purpose. We incline to think it was admissible; but if it was not, its admission will not avoid these judgments, because it plainly appears that it could not have injuriously affected the defendants on the merits of the case, since the fact that the June 20, 1919.) (Syllabus by the Court.) 1. ATTORNEY AND CLIENT 155-ALLOWANCE OF FEES-POWER of Court-SERVICES IN OTHER Court. The Court of Chancery of this state has no power to allow counsel fees, in a cause instituted in this state, for professional services rendered in a foreign jurisdiction in an independent litigation. The allowance must be for services rendered in a cause over which the court making the allowance has jurisdiction. 2. CORPORATIONS 189(14)-SUIT BY STOCK HOLDER AGAINST CORPORATION ALLOW BERGEN, J. This is an appeal from an order made by the Chancellor upon the advice of a Vice Chancellor, imposing upon the defendant the payment of counsel fees to the counsel of the complainant. The facts, briefly stated, are that the defendant was a corporation chartered under the laws of the state of New Jersey pursuant to our act relating to corporations. Its assets were very large, and if properly administered would realize sufficient to pay all its obligations, but on account of its inability to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |