Opinion
Argued January 13, 1965
Decided February 11, 1965
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, GEORGE D. NEWTON, J.
Mitchell T. Williams and Richard L. Engel for appellants.
Thomas Laverne and Angelo G. Faraci for respondents.
Order affirmed, with costs; no opinion.
Concur: Chief Judge DESMOND and Judges DYE, FULD, BURKE, SCILEPPI and BERGAN. Judge VAN VOORHIS dissents in part and votes to modify the order appealed from by requiring respondents in their advertising to make reference to Lancaster Homes, Inc., or to make some other suitable designation to distinguish their enterprise from that of plaintiffs which had been conducted under the name of "Homes by Ryan" prior to respondents' entry into the area, for the reasons stated by NEWTON, J., at Trial Term. Respondents cannot be precluded from using their own name "Ryan" in their publicity, but should be required to use it in such manner as to differentiate the two enterprises and so as not to appropriate a portion of appellants' good will.