Abbey Funeral Directors, Inc. v. Smith

• Decision Date: 07 June 1960
• Citation: 24 Misc.2d 492,204 N.Y.S.2d 439
• Parties: ABBEY FUNERAL DIRECTORS, INC., Plaintiff, v. John F. SMITH and Bonnie Lee Smith, doing business under the trade name and style of Abbey Parkchester Funeral Chapel, Defendants.
• Court: New York Supreme Court

Page 439

204 N.Y.S.2d 439

24 Misc.2d 492

ABBEY FUNERAL DIRECTORS, INC., Plaintiff, v. John F. SMITH and Bonnie Lee Smith, doing business under the

trade name and style of Abbey Parkchester Funeral

Chapel, Defendants.

Supreme Court, Special and Trial Term, New York County, Part V.

June 7, 1960.

John C. Delaney, New York City, for plaintiff.

Seymour Gendal, New York City, for defendants.

SAMUEL H. HOFSTADTER, Justice.

The plaintiff has been engaged in the funeral directing business in the Borough of Manhattan since 1941 and has occupied its present quarters at 888 Lexington Avenue in that borough since 1951. It has built up a large and profitable business and has advertised extensively. After the plaintiff's president joined the organization in 1951 he and his associates filed in the New York County Clerk's Office a certificate of doing business at 888 Lexington Avenue under the name of 'The Abbey', thereby continuing the same name as that in a like certificate of his associates on file since 1940 or 1941. There is little question that the plaintiff's establishment is generally known as 'The Abbey'.

The defendants are funeral directors whose establishment is located at 1430 Unionport Road in the Borough of Bronx. The defendants, husband and wife, though the sole stockholders of a corporation, Park Abbey Funeral Chapel, Inc., not a defendant, in whose name all formal and fiscal operations are conducted, have filed in the Bronx County Clerk's Office a certificate of doing business as 'Abbey Parkchester Funeral Chapel'. The defendants use the latter name widely in the operation of their establishment. The result has been confusion between the plaintiff's and the defendants' funeral parlors. Inquiries intended for the one have been directed to the other and in at least one instance flowers ordered sent to the defendants' were tendered at the plaintiff's establishment. There has been confusion, unquestionably due to the use by both parties of the name 'Abbey'.

A previous action between these parties illumines their present controversy. Before the adoption of the 'Abbey Parkchester Funeral Chapel' trade name the defendants had filed a certificate of the use of the name 'Abbey Park Funeral Chapel'. The plaintiff and the individuals who had filed 'The Abbey' trade name certificate brought an action in this court in 1952 against the individual defendants and their corporation, Park Abbey Funeral Chapel, Inc., to enjoin the use of their names. The action was settled by a written stipulation of discontinuance on January 31, 1953. By this stipulation the present defendants bound themselves to cancel of record their 'Abbey Park Funeral Chapel' trade name certificate as well as to withdraw all advertising under that name. They undertook further to cancel the license issued to them by the New York State Department of Health to conduct a funeral establishment under that name. The stipulation, however, concluded with the significant proviso that 'despite the foregoing, the defendants do not concede that the plaintiffs have the sole legal right to the use of the word or words 'Abbey' or 'The Abbey".

The certificate of the new name whose use is here challenged was filed in July 1956. In my opinion, the defendants' use of the name 'Abbey Parkchester' constitutes unfair competition under the law as well as a violation of the spirit, if not the letter, of the stipulation of January 31, 1953. The substitution of 'Abbey Parkchester' for 'Abbey Park' is a transparent evasion of the terms of the stipulation. It, too, supports the inference to be drawn from the testimony of one of the defendants, that the stipulation was signed with mental reservation on their part. The position of 'Abbey' as the first word in the...