With all the other names which the defendant could have taken, why did it choose "Eastern?" There is no answer except that it expected to and did reap the advantages gained by the long user of the name by the plaintiff. The defendant entered the field of similar business to compete with the plaintiff. It took the word "Eastern" long used by the plaintiff. It was timely warned of the damage being done by the subtle deception and still persisted in its course. In all fairness why did it not take another name; Western, Northern, Southern, Blue, any name among the millions which could have been selected. No, it must stick to Eastern, to be used in New York city where the plaintiff was bidding for its construction and engineering work. The points of the compass had nothing to do with the nature of the business conducted by these parties. Eastern is no less arbitrary than Arctic or Solar. The defendant should fall in line and do the fair thing. Business in these modern days is complicated enough without having some newborn competitor mix up identities.
Early decisions are of little use as authorities on modern New York city competition. They could no more imagine these conditions than they could foresee the airship or the wireless. Let the defendant get a new name and do its business on its own merits.
For these reasons I dissent.
CARDOZO, Ch. J., POUND, ANDREWS, KELLOGG and O'BRIEN, JJ., concur; CRANE, J., dissents in memorandum.
Ordered accordingly. *Page 467