Benevolent & Protective Order of Elks v. Improved Benevolent & Protective Order of Elks of the World

• Decision Date: 24 May 1912
• Citation: 205 N.Y. 459,98 N.E. 756
• Parties: BENEVOLENT & PROTECTIVE ORDER OF ELKS v. IMPROVED BENEVOLENT & PROTECTIVE ORDER OF ELKS OF THE WORLD et al.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 459

98 N.E. 756

BENEVOLENT & PROTECTIVE ORDER OF ELKS

v.IMPROVED BENEVOLENT & PROTECTIVE ORDER OF ELKS OF THE WORLD et al.

Court of Appeals of New York.

May 24, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Suit by the Benevolent & Protective Order of Elks against the Improved Benevolent & Protective Order of Elks of the World and the Grand Lodge thereof. From a judgment of the Appellate Division (136 App. Div. 896,120 N. Y. Supp. 1113) unanimously affirming a judgment of the Westchester Special Term enjoining defendants from using the name ‘the Improved Benevolent & Protective Order of Elks of the World,’ or any similar title, defendants appeal. Modified and affirmed.

See, also, 137 App. Div. 889, 121 N. Y. Supp. 1125.

Anderson Price, of New York City, for appellants.

Thomas F. Curran, of Yonkers, for respondent.

WILLARD BARTLETT, J.

This is a suit to restrain the defendant from using a corporate name so closely resembling that of the plaintiff as to be calculated to mislead and deceive the public and persons having transactions with either corporation. The plaintiff has been awarded the injunction which it sought, and, upon a unanimous affirmance of the restraining judgment, the defendant has appealed to this court. Although there are nominally two defendants, they constitute but one organization and will be treated as one defendant in this opinion.

The plaintiff was incorporated by a special act of the Legislature (Laws of 1871, c. 88) under the name of the Benevolent & Protective Order of Elks ‘to protect and aid its members and their families, and to accumulate a fund for that purpose, which said fund shall be used and appropriated for no other purposes whatsoever’; and it is authorized to acquire and hold real and personal estate to the value of $200,000 to sell and dispose of the same, to have and use a common seal, and to establish branch organizations. The corporation has grown and prospered, being now represented by branches in many other states of the Union, and having an aggregate membership of about 280,000 persons.

The defendant corporation, on the other hand, is of comparatively recent origin, having been organized under the Membership Corporations Law (Consol. Laws 1909, c. 35) in 1907. In the certificate of incorporation it is named the Grand Lodge of the Improved Benevolent & Protective Order of Elks of the World, but in its publications it appears simply as the Improved Benevolent & Protective Order of Elks of the World; the designation as Grand Lodge being omitted. Its objects as defined in the certificate are similar to those of the plaintiff, and it has established some branch organizations in this state and elsewhere. The evidence indicates that its membership is made up chiefly of colored persons, while the members of the plaintiff corporation and its branches are exclusively white. According to one of the witnesses for the defendant, ‘there is a membership of about 80,000 colored Elks in the United States.’ While the question of color crops up in the evidence in this record, it does not appear to have any legal significance in the litigation. The rights of the parties have been determined in the courts below, and must be adjudicated here precisely as though the members of both corporations were all of the same color.

[1] The grievance of the plaintiff is that the defendant has pursued a course designed to mislead and confuse the public by a deceptive imitation of the plaintiff's name, seal, emblem, membership card, and the titles of its officers. This grievance is established by the findings of the trial judge at Special Term, and the unanimous affirmance thereof by the Appellate Division, which precludes us from considering any of the points of the appellant based upon the alleged insufficiency of the evidence.

[2] There is one question of law, however, which may appropriately be discussed, since it does not appear ever to have been expressly passed upon by this court, and that is the right to injunctive relief against the unfair and misleading use of a corporate name in the case of a benevolent or fraternal association where it is not carrying on any trade or industrial or financial business which can be injuriously affected by the action of a similarbody in appropriating its name. The appellant strenuously asserts that the law protects only trading corporations against such misappropriation, and there are some expressions in the opinions of English judges which apparently sanction that view. That the doctrine finds no countenance, however, in this state is clearly and conclusively shown in the able opinion of the late Mr. Justice Patterson in Society of War of 1812 v. Society of War of 1812 in the State of New York, 46 App. Div. 568, 572,62 N. Y. Supp. 355, 358, where it was distinctly held that the right to relief by injunction against the misuse of a corporate name was not confined to business corporations, but extended equally to benevolent and patriotic societies. He pointed out that many corporations are created under the laws of this state which have nothing to do with trade or commerce, and that ‘it would be a strange condition if the law could not protect them in that which it has encouraged them to do.’ His reasoning and conclusion commend themselves to our judgment and command our approval. See, also, Salvation Army in United States v. American Salvation Army, 135 App. Div. 268, 274,120 N. Y. Supp. 471.

The question has seldom been presented to courts of last resort, but the case of International Committee of Young Women's Christian Associations v. Young Women's Christian Association of Chicago, 194 Ill. 194, 62 N. E. 551,56 L. R. A. 888, is an authority to the same effect. The Young Women's Christian Association of Chicago was one of the large number of associations of women, incorporated and unincorporated, which have...