I concur in the result, since the defendant has corrected in the recent issue of its telephone directory the error in the preceding directory of which the plaintiff complained, and has disclaimed any intention of its future repetition; and any remedy the plaintiff may have for damages is at law. Under those circumstances, the granting of any writ against the defendant would be nugatory. Miller's Equity Proc., sec. 611, pp. 715, 716.
Nevertheless, the fact that the defendant has removed the plaintiff's cause of complaint, subsequently to the institution of the proceedings and after the appeal taken by the plaintiff, does not, in my judgment, deprive the plaintiff of the substantial nature of his complaint, as the action of the defendant simply affected the plaintiff's right to a particular *Page 558 remedy and did not change the nature of the injury alleged. The fact that the defendant had no wrongful motive does not make the unauthorized insertion or retention of a firm name in its telephone directory any the less a violation of the plaintiff's contractual rights, which entitled him, under the circumstances of this record, to a remedy in equity by way of injunction.
The remedy, however, should not be excessive, as, for instance, was the relief prayed for in the bill of complaint in the instant cause. To require the defendant to recall for the purpose of destruction or correction any copy or issue of the outstanding directory which retained the listing of the name of the dissolved partnership was too drastic, in view of the rights of other subscribers and the duty of the defendant as a public corporation to them, and the ability of the defendant to make the immediate correction by obvious methods of a simpler, cheaper, and practical nature.
The writer does not wish to imply that there is anything in the opinion of the court in conflict with the views here expressed, but this memorandum is written in the conviction that the views of the court on the merits should have been expressed.
Judge Digges agrees in the conclusion here stated.