Final judgment in this case restrained the defendant corporation, the Stephen Merritt Company, from transacting or seeking to transact any undertaking, funeral or embalming business within the city of New York under the name or style of “ The Stephen Merritt Company,” or under the name, style, title or designation of which the word or name Stephen Merritt forms a part, or from displaying at any such place or places of business within the city of New York any portrait, bust or likeness of the defendant Reverend Stephen Merritt, or from advertising to the public that said defendant Reverend Stephen Merritt is employed by said corporation. The individual defendants are enjoined from transacting or seeking to transact, within the city of New York, any undertaking, funeral or embalming business, under the name or title Stephen Merritt Company, or under any name, style, title or device of which the name Stephen Merritt forms a part, and the defendant Reverend Stephen Merritt is enjoined from transacting or *571seeking to transact within the city of New York any undertaking, funeral or embalming business under his own name or any name, style, title or device of which the name Stephen Merritt forms apart, or granting any license to any individual, partnership or corporation transacting or seeking to transact any such undertaking, funeral or embalming business within the city of New York, to use the picture, portrait, name, fame or reputation of the said defendant Reverend Stephen Merritt directly or indirectly, for the purpose of soliciting trade, custom or patronage. He is also enjoined from soliciting business, either for himself or for any individual, partnership or corporation engaged in carrying on any undertaking, funeral or embalming business within the city of New York. The defendant Stephen Merritt, Jr., is enjoined from transacting or seeking to transact within the city of New York, any undertaking, funeral, or embalming business under the name or title “ Stephen Merritt Company,” or any name, style, title or device of which the name “ Stephen Merritt ” forms a part or from acting as officer or incorporator of any corporation hearing such name, style or title, engaged in carrying on either of the aforesaid business or businesses, except that he may carry on the said business or businesses under the title “Stephen Merritt, Jr.,” or “ Stephen Merritt The Younger.” He is also enjoined from using or displaying in connection with any such business or businesses the name, picture or portrait of the defendant Reverend Stephen Merritt, or from seeking or soliciting trade, custom or patronage, directly or indirectly, for any such business or businesses by any use of the picture, portrait, name, fame or reputation of the defendant, Reverend Stephen Merritt, and is enjoined from inserting the name Stephen Merritt in the Telephone Directory of the city of New York in connection with such business. Thus the defendants Reverend Stephen Merritt and Stephen Merritt, Jr., are enjoined from conducting any undertaking or funeral business in the city of New York under their own name or being engaged in or promoting such a business. Naturally one would expect that such a sweeping injunction would he based upon some agreement or covenant or obligation on the part of those defendants, either to give the plaintiff the exclusive right to the use of that *572name or of a business theretofore conducted under that name, or some affirmative covenant by which these defendants agreed not to conduct such a business or use their own names in connection therewith. But I can find in this record no evidence of such an agreement, or of any agreement by which the individual defendants had agreed either that the plaintiff should have the right to transact business under that name or which, either expressly or by implication, prevented either of these defendants from transacting this or any other business.
The Beverend Stephen Merritt seems to have been a Methodist preacher, who went into the undertaking business and conducted it for years in the city of New York. He assisted in the formation of a corporation which was known as “The Stephen Merritt Burial Company,” and to that corporation, in consideration of the issue of stock, he granted “ * "x" * all the stock on hand belonging to me and used in my undertaking business; * * * all hearses, carriages, horses and harness belonging to me and used in the said business and all other personal property belonging to me and appertaining to said business * * * ” subject to the payment of certain liabilities. That corporation did business for some time, the Beverend Stephen Merritt being its president, and subsequently the plaintiff corporation was formed, to which the former corporation transferred its business and property, of which the Beverend Stephen Merritt was also an officer. Subsequently the plaintiff discharged the Beverend Stephen Merritt from its service, which continued to transact its business using his name. The person designated as Stephen Merritt, Jr., was a grandson of the Beverend Stephen Merritt and was engaged in business in the city of New York. He organized the defendant Stephen Merritt Company, and after the Beverend Stephen Merritt was discharged from the employment of plaintiff, this defendant corporation employed the Beverend Stephen Merritt and they entered into business, competing with the plaintiff. There followed this action, which has resulted in the judgment to which attention has been called.
The defendant called Stephen Merritt, Jr., who was never designated in that manner, had always called himself Stephen Merritt, which is his proper name and the name by which he *573has become known. He has never had any relations, directly or indirectly, with the plaintiff or its predecessor corporation and sustains no such relations to the plaintiff as would prevent him from conducting any business in his own name. It has always been the settled law of this State that, in the absence of some express agreement or covenant, a person has the right to conduct any business in his own name without restraint from a court of equity. In Meneely v. Meneely (62 N. Y. 427) the defendants had been enjoined from the use of their own name in the bell foundry business; the referee found that the use of the name “ Meneely ” was calculated to, and did, mislead persons who were not personally acquainted with the plaintiffs and defendants, and that the use of the name Meneely was injurious to the plaintiffs’ business. In sustaining a reversal of that judgment, Rapallo, J., said: “ The manner of using the name is all that would be enjoined, not the simple use of it; for every man has the absolute right to use his own name in his own business, even though he may thereby interfere with or injure the business of another person bearing the same name, provided he does not resort to any artifice or contrivance for the purpose of producing the impression that the establishments are identical, or do anything calculated to mislead. Where the only confusion created is that which results from the similarity of the names the courts will not interfere. A person cannot make a trade mark of his own name, and thus obtain a monopoly of it which will debar all other persons of the same name from using their own names in their own business.” Since the decision of that case this question has been settled in this State. (See, also, World’s D. M. Assn. v. Pierce, 203 N. Y. 419, where the court said: “It is a general principle of law that one’s name is his property, and he has the same right to its use and enjoyment as he has to that of any other species of property. * * * The defendant has the right to use his name. The plaintiff has the right to have the defendant use it in such a way as will not injure his business or mislead the public.”) In Donnell v. Herring-Hall-Marvin Safe Company (208 U. S. 267) the contention of the defendant was that, as against the Hall family and any one selling their safes or standing in their shoes, the defendant had the sole right *574to the very valuable name Hall upon or for the sale of safes. In speaking of that contention the court said: “The good will sold was that of Hall’s Safe and Lock Company. There is nothing to show that while that company was going the sons of Joseph L. Hall could not have set up in business as safe makers under their own name and could not have called their safes by their own name, subject only to the duty not to mislead the public into supposing when it bought from them that it was buying their father’s safes. Therefore it could not be contended that merely by a sale the father’s company could confer greater rights than it had. But it was said that if a partnership had sold out by a conveyance in like terms the members would have given up the right to use their own names if they appeared in the firm name, that in this case the Halls received the consideration for the good will they had attached to their name, that they ratified the sale and necessarily assented to it, since otherwise the corporation could not have sold its property or have carried out its agreement to dissolve, and that under such circumstances a court ought to look through the corporation to the men behind it. ” The court further said: “ However it might be with a partnership, * * * when this corporation sold its rights everybody had notice and knew in fact that it was not selling the rights personal to its members, even if, as always, they really received the consideration, or, as usual, they all assented to its act.” A further argument was based on the confusion produced by the petitioner through his use of signs and advertisements calculated to make the public think that his concern was the successor of the first corporation and otherwise to mislead, and the court said: “This confusion must be stopped, so far as it has not been by the decree in force, and it will be. But it is no sufficient reason for taking from the Halls the right to continue the business to which they were bred and to use their own name in doing so.”
I think the defendant the Reverend Stephen Merritt has the right to engage in business in his own name, using his own picture in connection therewith in advertising the business and soliciting patronage from others, and that the defendant Stephen Merritt, Jr., or Stephen Merritt the younger, is also entitled to do business in his own name, to employ his grandfather *575as his assistant in that business, and to advertise and solicit business based upon the fact that the grandfather is connected with him in business. I think there is evidence to justify the court in enjoining the defendant corporation from using its name in the undertaking business, as showing that it was used with the intention of unfairly competing with the plaintiff’s business and an injunction to that extent was justified by the evidence. But after the Reverend Stephen Merritt had been discharged by the plaintiff from its employment, there was nothing to prevent him from engaging in the business in which he had been engaged, both as an individual and as an officer of plaintiff and its predecessor, and the judgment, so far as it enjoins the said defendants from transacting business and using the name of either the Reverend Stephen Merritt or his grandson, Stephen Merritt, was entirely unjustified by the evidence.
Therefore, I think the judgment appealed from should be modified by striking out all the provisions therein, excepting the single provision enjoining the defendant corporation from using the name Stephen Merritt Burial Company in the undertaking business.
Laughlin, J., concurred.
Judgment affirmed, with costs.