(dissenting). The record presents issues of fact impossible of determination on conflicting affidavits. It also discloses other facts from which conflicting inferences may be drawn. Under these circumstances a permanent injunction under the highly penal provisions of section 964 of the Penal Law should not issue without the presentation of the testimony of witnesses given in court and attended by all the safeguards, including the right of cross-examination and compulsory production of evidence, with which the law protects the rights of litigants. (New York Life Ins. Co. v. Guttag Corp., 265 N. Y. 292.) This is particularly true where the statute, as it does here, requires that an “ intent to deceive ” the public must exist before an injunction may issue.
Upon such an application on affidavits the propriety of the judgment must be tested by the same principle which applies to summary judgments and, so tested, I consider that there are controverted issues of fact which required the Special Term to take testimony or send the issues to a referee for trial.
I, therefore, dissent and vote to modify the judgment accordingly.
Martin, P. J., Townley, Glennon and Dore, JJ., concur in decision; Untermyer, J., dissents in opinion.
Order so far as appealed from affirmed, with twenty dollars costs and disbursements. No opinion.