Although it was claimed upon the motion that the appellant was in fact conducting the business of the De Long Hook and Eye Company, and that by indirection he was attempting to do for the company that which the latter had been enjoined from doing, still we think that the facts presented show that, having resigned from the company, the appellant, on his own account, for his own *36benefit and in a manner entirely distinct from the company, is. carrying on the hook and eye business. Unquestionably, if it appeared that the business of the appellant was that of the company, and that it was but another means of carrying on the unlawful competition enjoined, then the fact that it was done in another, way would subject the person thus engaged to punishment. (Morton v. Super. Ct. of Tulare County, 65 Cal. 496.). In that case the act .forbidden was the maintenance of a dam, and an officer of the company enjoined fqj maintaining the structure, who resigned and then erected the dam, was held to have been guilty of a contempt, because manifestly doing the precise act which was. forbidden. 'If, therefore, the appellant here while apparently in his own name, was engaged in the interest of the company in doing 'the very thing which it had been enjoined from doing, then the principle of that case would be applicable. It is all important, therefore, to define precisely what persons and what acts were enjoined; In the suit against the defendant corporation what was enjoined was the use in any manner by that corporation of the name “ De Long.” It was said in the opinion at Special Term :. “ There is no objection to the defendants (the corporation) designating the hooks sold.bythqm as the ‘Oscar A. De Long Hook.’ ” This expression is relied upon by the ap pellant now, as it was by the corporation at the time of settling the decree, as authority for the right of the corporation to sell their wares as the “ Oscar A. De Long Hook.” As it was seen, however, when settling the decree that not only would this introduce confusion, but might prevent the plaintiffs from obtaining the relief to which they were entitled, by permitting the corporation which had fraudulently endeavored to divert the plaintiffs’ business to succeed in that effort, this expression was withdrawn, and the decree as entered enjoined the use by the corporation of the name “ De Long ” in connection with its business in any way whatever. Although the decree at Special Term, and as affirmed by the General Term, was clear - and sweeping in its injunction on the' corporation from using in connection "with the hook and eye business the name 16 De Long,” in the opinions of both courts there was a recognition of the distinction between the use of such name by the corporation and the use by the appellant of his own name in connection with his own business. Thus the General Term -modified the decree of the Special Term by *37limiting its restraining clause as follows: “ ‘ But nothing herein shall operate to prevent the defendant from manufacturing and selling hooks and eyes put up in any form which shall not violate the trade-mark of the plaintiff, or have the effect to induce the •ordinary purchaser to buy its goods believing them to be manufactured by the'plaintiff-’ ”
It is claimed that, m violation of the terms of the decree, the appellant has made and sold goods of such a character and put up in such a way as to constitute a fraudulent and unlawful competition in business with the plaintiffs, and that the effect will be to induce the public to buy goods sold by him in the belief that they were the plaintiffs’. This claim we do not think is sustained, because, while there are certain features common to the business, such as carding the hooks, etc., which any one engaging in the hook and eye business would have a perfect right to employ, we can find, outside of such general features, no act of the appellant which can be regarded as an attempt to imitate fraudulently the plaintiffs’ goods, or fraudulently to induce the public to believe that they were purchasing the plaintiffs’ goods; it being evident that the confusion in the public mind which has ensued from the appellant’s entering upon the business is due "entirely to similarity in name.
If we eliminate then, because justified, the idea that the appellant was engaged in carrying on the business of the defendant corporation in a manner that had been enjoined, and assume, as we think the affidavits show, that he is now conducting his own business in his •own name, the question really presented is whether, in using the designation “ Oscar A. De Long’s Hook,” he has violated the letter or spirit of the injunction. This did not enjoin Oscar A. De.Long from doing business in his own name, or from selling any kind of kooks and eyes that any other person might lawfully sell, or from designating those made and sold by him and having peculiarities designed by him as “ Oscar A. De Long’s Hook.” Although an officer and practically the owner of the corporation, Oscar A, De Long was not individually a party to the action against the corporation, and his individual rights were not the subject of adjudication ; and while it is true it was therein decided that he could not lend his name to a corporation and thus infringe upon the plaintiffs’ trade mark which they had acquired in the name “De.Long” in *38connection with the hook and eye business, there ivas no determination that Oscar A. De Long could not do business on his own. account and in his own name.
The extent to which the decree went, and to which it will be: sustained, was in holding that neither directly nor indirectly could, the corporation use the name “DeLong” in connection'with its-business. "We do not think, therefore, because he had so loaned the-use of his name to the corporation, that he has forever lost the use of it in his own business, even though such business might be that: of" hooks and eyes; and even though the use of his name in that business might result in confusion in the public mind. Not only was. there no injunction against the use of his own name in his own business, but the court, in an action to which he was not a party, in his individual character, could not have made any such decree.
As already said, if it had appeared that the business of the defendant corporation was now being carried on by Oscar A. De Long,, who had adopted, a name and employed methods which the .corporation was enjoined from using, such acts would be a defiance of the-decree and would constitute a contempt, and be punishable, for the court, will not permit that to be done indirectly which it has forbidden to be done directly. As stated, however, the facts do not warrant this conclusion, and although the appellant commenced business immediately after the entry of the decree, it does appear that before doing so he resigned from the corporation, and that the: latter is in no way interested in, and. has no voice in, the business, which he is conducting solely for his own benefit.
The result then, if this application is successful, will not be to-punish him for what he did in connection with the corporation, for the proceeding cannot be regarded as against him as an officer or controlling stockholder of that corporation, but as. against, him for using his own name in his own business. "The respondents frankly avow their-right to this relief and insist that in-connection with'the hook and eye business, even though conducted by himself, he could not use the name De Long. As urged by them, “ Oscar A. De Long,.. having applied his name to fraudulent purposes, placed the use-thereof in jeopardy, and the court 'having condemned the use of it in a certain and well-defined direction he must now abide by the. consequences of his improper conduct.” This we think is more *39sweeping than the decree, and is going further than is sanctioned by reason or authority. What was enjoined was the use of the appellant’s name in connection with a corporation engaged in the same business as the plaintiffs, which use introduced confusion and dishonest competition. Although this was condemned in the opinions and enjoined by the judgments, the former recognized the legal right of every man to úse his own name, and the latter did not go to the extent of preventing the appellant from ever again engaging in the hook and eye or other business in his own name; and, as correctly claimed by the appellant, “ a judgment to that effect would relate directly to the individual rights of Oscar A. De Long, and could not be determined in an action to which he was not a party; No such adjudication has been made or could be legally made. There is no such thing as a forfeiture of a right by civil proceedings. Oscar A. De Long, in a suit brought against himself, might be perpetually enjoined from doing a certain thing, but that would not be a forfeiture of a right, and * * * Oscar A. De Long has not been enjoined from making, selling and advertising hooks and eyes under his own name. * * * Such an adjudication would in effect create a new form of punishment, viz., that a man might be deprived of a right he would otherwise possess of engaging in a lawful business under his own name.”
As there was nothing, therefore, in the decree which-would interfere with the right of Oscar A. De Long to do business in his own name and for his own account, we fail to see why he cannot advertise such business in his own name, or on his letter heads or on the cards containing his hooks.' We do not think he is obliged to do business either anonymously or in the name of some one else, or refrain from placing his own name upon his letter heads or the cards-which contain the hooks and eyes that he is selling in his own business and for his own account.
The distinction between the use. of the, name “ De Long” by a corporation in aily way and by the appellant grows out of the fact that it was assumed fraudulently by the former, and belongs as o£ right to the latter; and while the court could and did prohibit the use by the corporation of the name “ De Long,” it did not and could not in that action, to which appellant was not a party, enjoin him from using his own name. The construction of the judgments for *40which the respondents contend, if followed to its'logieal consequences, is that because in the suit against the corporation the use by it of the name “De Long” was enjoined as fraudulent, this was an adjudication that no one formerly connected with the corporation, as having knowledge of the judgment, though his name was De Long, could ever thereafter use the same. in connection with his own business, more particularly if that business chanced to be that of hooks and eyes. We do not think that if Oscar A. De Long had used his own name on his own cards in his own business the plaintiffs would have a cause of action against him ; nor do we see that the fact that there -has been a suit brought and all injunction obtained against a company to which he loaned 1ns name militates against his ability to resume his original right, to engage in business on his own account and in-his own name.
It not having been shown, therefore, that the appellant had in any -way violated the decree, the order adjudging him guilty of contempt was erroneous and should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Van Brunt, P. J., and Williams, J., concurred; Patterson, J., dissented.