Jenner v. Shope

• Decision Date: 19 March 1912
• Parties: JENNER v. SHOPE.
• Court: New York Court of Appeals Court of Appeals

205 N.Y. 66

98 N.E. 325

JENNER

v.SHOPE.

Court of Appeals of New York.

March 19, 1912.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Annie Jenner, as administratrix of William J. Jenner, deceased, against Julian B. Shope. From an order of the Appellate Division (140 App. Div. 911,125 N. Y. Supp. 1151) reversing a judgment of the Appellate Term which affirmed a judgment of the Municipal Court and granting a new trial, plaintiff appeals. Affirmed.

See, also, 140 App. Div. 936,126 N. Y. Supp. 1133.Howard Hasbrouck, of New York City, for appellant.

G. B. D. Hasbrouck, of New York City, for respondent.

CULLEN, C. J.

The plaintiff, widow and administratrix of William J. Jenner, sued the defendant on a written agreement by which the plaintiff assumed to transfer to the defendant the right and privilege of using the name of ‘Jenner & Company’ theretofore used by William J. Jenner, the plaintiff's intestate, in consideration whereof the defendant agreed to make certain payments in which he had made default. The defendant, in answer to the claim, alleged that the use by the deceased of the name of ‘Jenner & Company’ was illegal, because the deceased had had no actual partner; that for this reason the transfer of the name by the plaintiff gave him no right to its use; and that thus the consideration for the defendant's covenants had failed. On the trial the evidence showed that the deceased Jenner never had a partner. The Municipal Court held the defense bad and rendered judgment for the plaintiff. This was affirmed by the Appellate Term by a divided court. The Appellate Division reversed the judgment and ordered a new trial, from which order an appeal has been taken to this court.

The determination of the case depends on the construction and effect of certain statutes. The first law on the subject of fictitious names was that of 1833 (chapter 281, amended by Laws 1886, c. 262, now reproduced as section 22 of the Partnership Law [Consol. Laws 1909, c. 39]), which enacted that no person should thereafter transact business in the name of a partner not interested in his firm, and that when the designation ‘& Company’ was used it should represent an actual partner. By subsequent statutes this general prohibition was to some extent relaxed. In cases where the majority of the members of a former copartnership were members of a new firm or consented to the use of the old name by the new partnership such use was permitted, and where a resident of the state died after having carried on business for five years in his sole name, the right to use the name could be disposed of as part of his estate. A certificate signed and acknowledged by persons intending to carry on such business under the old name was required to be filed and recorded in the clerk's office. Partnership Law of 1897, c. 420, §§ 20, 21. Section 363 of the Penal Code (originally enacted in 1881) provided that a person who transacts business, using the name as partner of one not interested with him as such or using the designation ‘& Company’ or ‘& Co.,’ when no actual partner or partners are represented thereby, is guilty of a misdemeanor. ‘But this section does not apply to any case, where it is specially prescribed by statute that a partnership name may be continued in use by a successor, survivor, or other person.’

It is very clear that if these statutes were the only ones in force at the time, the use by the plaintiff's intestate of the title of ‘Jenner & Company’ in the conduct of his business did not fall within the statutory exceptions and was illegal; that because of such illegality his administratrix could not transfer the trade name to the defendant; and that the use of it by him in his business would be equally illegal. The learned counsel for the plaintiff, however, contends that these statutes were modified or repealed by subsequent legislation. In 1900, by chapter 216 of that year, section 363b was added to the Penal Code, as follows: ‘(1) No person or persons shall hereafter carry on or conduct or transact business in this state under any assumed name, or under any designation, name or style, corporate or otherwise, other than the real name or names of the individual or individuals conducting or transacting such business, unless such person or persons shall file in the office of the clerk of the county or counties in which such person or persons conduct, or transact, or intend to conduct or transact such business, a certificate setting forth the name under which such business is, or is to be, conducted or transacted, and the true or real full name or names of the person or persons conducting or transacting the same, with the post office address or addresses of said person or persons. Said certificate shall be executed and duly acknowledged by the person or persons so conducting, or intending to conduct, said business. * * * (5) Any person or persons carrying on, conducting or transacting business as aforesaid, who shall fail to comply with the provisions of this act, shall be guilty of a misdemeanor.’

[1] The contention is that the enactment of this section repealed or modified the previously existing laws so that thereafter, as against the public, a person might conduct business under any name, style, or title, provided that he filed a certificate stating his intention to conduct business under that name or style. If this claim be correct, of course the defense fails, because the right to use the name Jenner the defendant could acquire from the administratrix, and the term ‘& Company’ he would have the right to use in connection with the name of Jenner, or with any other name for that matter, provided he filed the proper certificate. But we are of opinion that the appellant's claim cannot be sustained.

[2] It is elementary law that repeals by implication are not favored. Potter's Dwarris on Statutes, p. 154. The method in which the new law was enacted indicates no intent to repeal the provision which made the transaction of business under the name of ‘& Company’ or of ‘& Co.’ without an actual partner, except in the special cases authorized, a misdemeanor, but the reverse. Instead of substituting the new provisions of law for the existing section 363 of the Penal Code,...