In the Matter of Long Island Lighting Company, Respondent, against Lilco Mfg. Corp., Appellant

In the Matter of Long Island Lighting Company, Respondent, against Lilco Mfg. Corp., Appellant. [MAJORITY] Appeal from an order which granted an application pursuant to section 964 of the Penal Law, enjoining appellant from using the word “Lileo” or any simulation thereof, either alone or in conjunction with other words, in its business, and directing appellant to remove said word from its business establishment, its stationery and advertising. Order affirmed, with $10 costs and disbursements. Ho opinion. Wenzel, Beldock and Hallinan, JJ., concur; Holán, P. J., and Kleinfeld, J., dissent and vote to reverse the order and to dismiss the petition, with the following memorandum: Relief may be obtained pursuant to section 964 of the Penal Law only when the right thereto is established in a clear and convincing manner and should not be awarded when there is presented a true issue of fact as to intent to deceive or mislead the public, or as to the probability of such deception. In our opinion, the denials and allegations of fact contained in appellant’s verified pleading are sufficient to present such an issue. Respondent may obtain such relief as may be proper in an appropriate action in equity. (Cf. Association of Contr. Plumbers v. Contracting Plumbers Assn., 302 N. Y. 495.) [3 Misc 2d 778.]