In the Matter of Record Guild of America, Inc., Respondent, against John Stevenson et al., Copartners Doing Business as Children's Record Guild, Appellants

(November 25, 1952.) In the Matter of Record Guild of America, Inc., Respondent, against John Stevenson et al., Copartners Doing Business as Children’s Record Guild, Appellants. [MAJORITY — Per Curiam.] Appeal from an order of the Supreme Court at Special Term, entered November 8, 1951, in New York County, which referred to a Referee to hear and report the issue of whether appellants had knowledge of petitioner’s name and existence in the record producing field, in a proceeding for an order pursuant to section 964 of the Penal Law to restrain appellants from using the name Children’s Record Guild or any other name simulating petitioner’s name. Per Curiam. The order of reference appealed from should be reversed, with $20 costs and disbursements to appellants, and the application of petitioner-respondent dismissed on the ground that petitioner did not establish facts sufficient to justify the summary and drastic relief provided for under section 964 of the Penal Law (Association of Contracting Plumbers of City of N. Y. v. Contracting Plumbers Assn. of Brooklyn & Queens, 302 N. Y. 495, 498, 502; In the Matter of Alexander’s Dept. Stores v. Cohen, 295 N. Y. 557, 558). The dismissal is without prejudice to the institution of any action petitioner may see fit to bring. Settle order on notice. Peck, P. J., Dore, Cohn and Callahan, JJ., concur. Order unanimously reversed, with $20 costs and disbursements to the appellants, and the application of petitioner dismissed. The dismissal is without prejudice to the institution of any action petitioner may see fit to bring. Settle order on notice.