(dissenting). I dissent. In my opinion, the fact that the plaintiffs’ predecessors filed a certificate in 1924 stating *411that they had discontinued the use of the words “ Universal Tours ” in their business as a trade name, does not deprive the plaintiffs of the benefits of the judgment which they obtained, upon sufficient evidence, enjoining the defendant from the use of the words “ Universal Tours ” as a trade name.
In October of 1915, at the time the plaintiffs’ predecessors adopted the trade name “ Universal Tours,” a certificate was duly filed in the county clerk’s office, in compliance with the provisions of section 440 of the Penal Law. The law, as it then existed, is set forth in full in the prevailing opinion. But in February of 1924 plaintiffs’ predecessors filed the certificate which is referred to as the certificate of discontinuance, appearing in form also in the prevailing opinion. Thereafter, the plaintiffs continued the use of this trade name in their business, notwithstanding the filing of the certificate in February of 1924.
In my opinion, the filing of this certificate of discontinuance was an idle ceremony which in no wise affected the plaintiffs’ rights to continue the use of the trade name. The original certificate of record continued to fulfill the purposes for which the statute was designed, that is, to give notice that the plaintiffs or their predecessors were doing business under the name “ Universal Tours.” The right to the use of this name was not enhanced by the fifing of the certificate, but, the name having been adopted, the fifing of the certificate was made mandatory in order that the public might know with whom it was dealing. Nor was the right to continue the use of the name taken away by the certificate of discontinuance, under the law as it then existed. Concededly, the plaintiffs continued the use of the name after February of 1924, and to the time of the trial. Can it be said that the plaintiffs were guilty of a misdemeanor by continuing the use of the name after February of 1924? I think not. They complied with the statute, and that compliance gave the required notice that they were the individuals doing business under the name “ Universal Tours.” Having filed the certificate, they were guilty of no offense in continuing the use of the name, in the absence of any provision of the law providing for the filing of a certificate to the effect that the use of such name had been discontinued. There was no authority in the county clerk to receive such a certificate, nor was there any provision for the making of a note of such certificate of discontinuance upon the index so kept by him of all persons having theretofore filed certificates. That the fifing of the certificate of discontinuance was of no legal effect in 1924, is evidenced by the fact that the Legislature provided for such a certificate by chapter 202 of the Laws of-1926, in effect September 1, 1926.
*412The purpose of the law under consideration (Penal Law, § 440) is the same as that of former section 363-b of the Penal Code, considered in Sinnott v. German-American Bank (164 N. Y. 386), where Judge Gray wrote (p. 391): “ It is a highly penal one and deserves a strict construction. (Gay v. Seibold, 97 N. Y. 472.) It was a measure intended to be in the interests of the commercial community and had its foundation in public policy.” Again, in Jenner v. Shape (205 N. Y. 66, at p. 72), it was stated for the court by Cullen, Ch. J., referring to section 363-b of the Penal Code, from which the present law was derived, that “ It was not the object of the legislation to prohibit absolutely the conduct of business under titles of the character mentioned — a practice which has been in use from very early times — but to require any one so conducting a business to file a certificate stating the name of the person or persons who were actually conducting the business in order that persons dealing with them might know who were responsible for liabilities incurred in the business.”
In my opinion, the plaintiffs here come within the rule stated by Mr. Justice Giegerich in Goddard v. American Peroxide & Chemical Co. (67 Mise. 279), cited without disapproval in the prevailing opinion. It was there held that the plaintiff was entitled to equitable relief enjoining the defendant’s wrongful use of the plaintiff’s trade name, notwithstanding the fact that the plaintiff had not filed a certificate as required by section 440 of the Penal Law, for the reason that the plaintiff for a long time had no knowledge of the statute, and as soon as he became aware of its existence he filed the necessary certificate, which was prior to the commencement of the action.- The good faith of the plaintiffs in the case now under consideration is evidenced by the fact that their predecessors complied with the law by filing the required certificate, which remains unaffected upon our public records to this day.
The judgment should be affirmed, with costs.
Rich, J., concurs.
Judgment reversed upon the law and the facts, with costs, and judgment directed in favor of defendant upon the merits, -with costs. Findings of fact numbered 9, 10, 11, 12 and 13, and conclusions of law numbered 1, 2 and 3 are reversed and new findings and conclusions will be made in support of the judgment directed in favor of defendant.
Settle order on notice.