Argued May 3, 1932
Decided June 1, 1932
Appeal from the Supreme Court, Appellate Division, First Department.
Abraham N. Davis and Paul J. McCauley for appellant.
Maurice Deiches and James Allan Bernson for respondent.
The judgment appealed from should be modified so as to read:
"Ordered, adjudged and decreed that the defendant be restrained and enjoined from continuing the use of the name `The Forsythe Shoe Corporation' in connection with its business in New York State as hereinafter provided.
"Ordered, adjudged and decreed that the defendant be restrained and enjoined from continuing to use the name `Forsythe' as a part of its corporate name in connection with the acts hereinafter restrained, and it is further
"Ordered, adjudged and decreed that the defendant be restrained and enjoined from continuing in New York State to use the name `Forsythe' or `Forsythe Shoes' as names descriptive of its stores or goods and that the defendant be restrained and enjoined from maintaining any signs, window prints or lettering on any or all of its stores, in which the word `Forsythe' appears, on its or any of its stationery, catalogues, labels, advertisements, placards, signs or in any manner whatever, and it is further
"Ordered, adjudged and decreed that plaintiff is entitled to recover of the defendant for such damages as plaintiff has sustained or suffered by reason of the wrongful acts of the defendant herein, and for the purpose of ascertaining and assessing the amount thereof, it is hereby referred to Hugh Wallace Reid, Esq., of 110 Broadway, to assess such damages as aforesaid, and it is further
"Ordered, adjudged and decreed that upon the final assessment and award of such damages, final judgment be entered herein, in favor of the plaintiff and against the defendant, enjoining it, their agents, employees, successors and assigns, as hereinabove provided, and further awarding the plaintiff the recovery from the defendant of the amount so assessed or awarded, together with costs, which costs, together with disbursements, are hereby awarded to the plaintiff," and as so modified affirmed, with costs to the respondent.
The questions certified are answered: No. 1 in the affirmative; No. 2 in the negative.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG, O'BRIEN, HUBBS and CROUCH, JJ., concur.