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Appeal from Special Term, Sullivan County.
Action by Abraham Rosenberg against Charles Slotchin and another. From an order staying all proceedings on plaintiff's part until the determination of another action brought against him by defendants, plaintiff appeals. Order reversed.
Argued before KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and SEWELL, JJ.
Joseph I. Stahl, of New York City, for appellant.
COCHRANE, J. December 3, 1916, the defendants delivered to the sheriff of Sullivan county, where the plaintiff resided, a summons and complaint for service on him in an action about to be instituted against him by the defendants in Kings county, where they resided. Such summons and complaint were served December 11, 1916. In the meantime, and on December 9th, the plaintiff instituted the present action by the service of the summons on the defendant Charles Slotchin, designating Sullivan county as the place of trial.
[1-3] There is some ground for the inference that the plaintiff evaded service of the summons in the Kings county action until he had procured service of the summons in this action, and for the purposes of this appeal it will be assumed that he is in no better position than he would be if the Kings county action had actually been first begun. But something more is required to justify an order staying proceedings in an action than that the party against whom the stay is sought stands second in the race for priority. It is only where the decision in one action will determine all the questions in the other action, and the judgment on one trial will dispose of the controversy in both actions, that a case for a stay is presented. Dolbeer v. Stout, 139 N. Y. 486, 489, 34 N. E. 1102; Ogden v. Pioneer Iron Works, 91 App. Div. 394, 396, 86 N. Y. Supp. 955; Consolidated Fruit Jar Co. v. Wisner, 38 App. Div. 369, 375, 56 N. Y. Supp. 723.
Both actions arise out of a contract for the exchange of real estate and personal property between the plaintiff and the defendant Nelly Slotchin, wherein the parties to such contract, among other things, agreed upon the sum of $500 as liquidated damages to either for the breach thereof by the other. Each party to the contract claims that the other broke the contract by refusing to perform it. The purpose of each action is to recover damages for such breach of contract. The plaintiff herein, by his answer in the Kings county action, denies some of the allegations of the complaint, alleges a refusal to perform the contract by the plaintiffs in that action, and alleges the pendency of this action at the time of the commencement of that action, on the same cause of action alleged in the complaint therein. Of course, if the issues presented by the pleadings were the same in both actions, and each party was seeking in each action all the relief to which they might under any circumstances claim to be entitled, a determination in one action might dispose of the controversy in the other. But such is not the present situation.
As stated, the contract of the plaintiff was made with Nelly Slotchin. For some reason, Charles Slotchin signed the contract; but he agreed in the contract to do nothing whatever, and his liability, if any, must rest, in part, at least, on something outside the contract, which on its face discloses no obligation or liability which he has specifically assumed. Nelly Slotchin, who undoubtedly has a genuine interest in the litigation, has appeared in this action, but at the time the order in question was granted had interposed no answer, and her time to do so had not expired, so that as to her the action was not yet at issue. Until both actions are fully at issue, it is impossible to say that a determination in one action will dispose of the other. A motion to stay an action will not be granted until after the issues are complete. Ogden v. Pioneer Iron Works, 91 App. Div. 394, 86 N. Y. Supp. 955; Raymore Realty Co. v. Pfotenhauer-Nesbit Co., 139 App. Div. 126, 123 N. Y. Supp. 875. Nelly Slotchin may in her answer in this action interpose the defense of fraud or deceit in procuring her to execute the contract in question, or some other defense raising an issue which clearly would not be determined in the Kings county action under the pleadings as they now stand. In Clark v. Vilas National Bank of Plattsburgh, 22 App. Div. 605, 48 N. Y. Supp. 192, it was held by this
"If only a portion of the questions involved in the last action will be settled in the first, a stay will not be granted."
 Furthermore, the plaintiff has not pleaded his counterclaim for the liquidated damages in the Kings county action, nor was he obliged to do so. In Walkup v. Mesick, 110 App. Div. 326, 97 N. Y. Supp. 142, an effort was made to stay proceedings in another action brought by the defendant against the plaintiff, and the court said:
"He [the defendant] cannot be compelled to set up his counterclaim herein. He had the right to reserve his own claims for a cross-action, the conduct of which he could control, and to confine his defense in the action brought against him to such matters as would defeat the claims there set up. Brown v. Gallaudet, 80 N. Y. 413; Ogden v. Pioneer Iron Works, 91 App. Div. 396 [86 N. Y. Supp. 955]. Assuming that the plaintiff should be defeated as to either of his causes of action, or any part thereof, defendant could obtain no affirmative relief. Kerngood v. Pond, 84 App. Div. 227 [82 N. Y. Supp. 723]."
See, also, Consolidated Fruit Jar Co. v. Wisner, 38 App. Div. 369, 376, 56 N. Y. Supp. 723, and Ogden v. Pioneer Iron Works, 91 App. Div. 394, 396, 86 N. Y. Supp. 955.
Not seeking any affirmative relief in the Kings county action, a decision in favor of this plaintiff in that action will not give him the relief to which, if successful, he would be entitled in the present action, and, as clearly indicated in the cases cited, he is not required to allege a counterclaim in that action.
The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.
PEOPLE v. HEWSON.
(Supreme Court, Appellate Division, Third Department. December 28, 1917.) 1. PHYSICIANS AND SURGEONS 10-"PRACTICE OF DENTISTRY UNDer False, ASSUMED, OR TRADE NAME"-STATUTES.
An advertisement, with the words "King's Dental Offices" in large type, with the owner's name in smaller letters, and also, in large letters, “Dr. Hewson's (King) Dental Prices," was the practice of dentistry under the name of another, within Public Health Law (Consol. Laws, c. 45) § 203, as amended by Laws 1916, c. 129, § 10, subd. b(4), providing a penalty therefor, in view of section 190, as amended, defining the practice of dentistry as the holding out of being able to diagnose, treat, etc. 2. PHYSICIANS AND SURGEONS
10-PRACTICING DENTISTRY IN NAME OF AN
OTHER STATUTES-POLICE POWER-EX POST FACTO LAWS.
Public Health Law, § 203, as amended by Laws 1916, c. 129, § 10, subd. b(4), providing a penalty for practicing dentistry under any assumed or corporate name, or under the name of another, applies to one who lawfully practiced under the name of another for 10 years before the passage of the act.
Action by the People of the State of New York against Edward L. Hewson to recover penalty for practice of dentistry under the name of another. Submission of controversy under sections 1279-1281 of the Code of Civil Procedure. Judgment for the People.
Argued before KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and SEWELL, JJ.
Merton E. Lewis, Atty. Gen. (Edward G. Griffin, Deputy Atty. Gen., of counsel), for the People.
H. J. Hennessey, of Binghamton, for defendant.
COCHRANE, J. Section 203 of the Public Health Law, as amended by chapter 129 of the Laws of 1916, which amendment became effective September 1st of that year, in subdivision b(4) of the section makes a person guilty of a misdemeanor who "shall practice dentistry under a false or assumed name, or under the license of registration of another person of the same name or under the name of a corporation, company, association, parlor or trade name." Subdivision "d" of said section 203, as amended by chapter 507 of the Laws of 1917, effective May 16th of that year, makes any person violating any of the provisions of the law relative to the practice of dentistry subject to a penalty of $100 for each violation, and declares that each act constituting a violation shall be deemed a separate act and the person guilty thereof shall be subject to a penalty of $100 for each such act.
 On three separate days in the month of July, 1917, the defendant, who was a duly licensed and registered dental practitioner in Binghamton, N. Y., caused to be printed in one of the public newspapers of that city an advertisement, the first part of which was as follows:
"Roofless, Gumless, Plate is an exclusive feature of King dentistry. This natural, convenient and everlastingly comfortable plate cannot be had elsewhere. Ask for a free demonstration of its merits. It cannot drop, rock nor come loose. Absolutely invisible."
For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Then appears in large type the words "Dr. Hewson's (King) Dental prices," followed by the advertised prices for various services in small type. Further on in the advertisement appears the following: “Dr. E. L. Hewson's Dental Offices, formerly King Dental Offices, 50 Court Street" the words "King Dental Offices" being in much larger type than the rest of the sentence. The advertisement contains other matters immaterial to this discussion, except that the name of Dr. Hewson frequently appears therein. It is claimed by the plaintiff that the defendant became liable to a penalty of $100 for each of the three publications of the said advertisement.
Section 190 of the Public Health Law, as amended by said chapter 129 of the Laws of 1916, defines the practice of dentistry as follows: "A person practices dentistry within the meaning of this article, who holds himself out as being able to diagnose, treat, operate, or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the human teeth, alveolar process, gums, or jaws, and who shall either offer or undertake by any means or method to diagnose, treat, operate, or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition of the same."
By the advertisement in question the defendant undoubtedly comes within the description of a person in the above definition who "holds himself out as being able to diagnose, treat, operate, or prescribe for
** and who shall either offer or undertake by any means or method to diagnose, treat, operate, or prescribe for any disease, pain, injury, deficiency, deformity, or physical condition" of the teeth, gums, or jaws. And to emphasize the purpose of the advertisement the agreed statement of facts declares that the defendant thereby "intended to hold himself out * ** and to offer or undertake" to do the specific things which are enumerated in said section 190 as amended. So that there is no question but that the advertisements constituted the practice of dentistry within the meaning of the statute, and the remaining question is whether such practice was conducted under a false or assumed or parlor or trade name.
As bearing on the latter question the following facts which appear in the submission are significant:
"That previous to September 1, 1916, and for a period of more than ten years prior thereto, the defendant has been conducting offices wherein dentistry was legally practiced under the name of 'King Dental Offices.' That the defendant's bill heads, literature, and advertisements during said period were all under the name of 'King Dental Offices,' and the public had learned, from the said advertisements, to know the offices conducted by the defendant as 'King Dental Offices.' That the defendant acquired the name 'King Dental Offices' by buying out the business of one 'King,' who was formerly legally engaged in the practice of dentistry under the name of 'King Dental Offices.' That during said period of ten years or more the defendant has given to various patients at said office a written guaranty as to the quality of his work, which guaranties by their terms are good for various periods ranging from two to ten years. and that the said written guaranties are stamped or printed at the bottom thereof 'King Dental Offices.'"
It thus appears that Dr. King had formerly been a legal dental practitioner, with an established profession, and that his offices came to be known in the community as "King Dental Offices," and that the defendant, for ten years or more after buying out the business of Dr. King, had conducted the profession of dentistry under the name
"King Dental Offices." By the advertisement in question the defendant clearly intended to draw the attention of the public to the fact that in some way it was Dr. King, or a person who had been known to conduct his profession under the style of "King Dental Offices," whose services and professional prestige and skill would serve patients at the place where the defendant was conducting his professional operations. The advertisement is so planned and arranged as to make that idea. prominent. Although the name of Dr. Hewson frequently appears in the advertisement, with a single exception it is in small type, and in that exceptional instance it is coupled with the name of Dr. King in a manner which seems to me to fall directly within the prohibition of the statute. In large type and in a prominent form the names are coupled as follows: "Dr. Hewson's (King) Dental Prices"-followed by prices for various services printed in much smaller type. This is equivalent to saying: "The following are the prices for dental services of Dr. Hewson (King)." It seems to me that this is clearly the use of a false, assumed, or trade name within the meaning of the statute. Later on in the advertisement the words "King Dental Offices" appear in large type and striking form, and, while those words are preceded by the words in small type "Dr. E. L. Hewson's Dental Offices, formerly," the apparent and manifest purpose is to create or perpetuate the idea that the profession of dentistry is being continued by "King Dental Offices" at the place where, according to the agreed statement of facts, the defendant for more than ten years had been conducting his profession under that name. The advertisement is quite lengthy, and when considered in the light of the facts appearing from the stipulated submission it is clear that the casual reader would conclude that Dr. King, or the King Dental Offices, were being advertised, instead of Dr. Hewson individually and apart from Dr. King, or the King Dental Offices. The question is, not how would a careful and close reader of the entire article view the advertisement, but how would it strike the casual reader. But even to a careful reader and a close observer the expression "Dr. Hewson's (King) Dental Prices" would certainly be ambiguous, and constitutes a statutory misuse of names. The purpose of the statute is that a dentist shall practice his profession on his own merits, and not on the reputation of another dentist. This purpose is overcome by the methods adopted by the defendant. He sought to benefit by the reputation of Dr. King. When patients came to his office, they had a right to know, and the statute intends that they should know, that he was the responsible proprietor, and that his professional skill and ability, unaided by that of any other person, should constitute the only guaranty for the professional treatment accorded to them. The use of Dr. King's name in the advertisement in close connection with the defendant's name, and the use of the words "King Dental Offices," served no proper or legitimate purpose. It is not even suggested that they were necessary in order to locate the defendant's offices. The only effect was to advertise the defendant under a name other than his own. This the statute does not permit.
 It does not aid the defendant that he formerly lawfully practiced dentistry under the name of "King Dental Offices." The statute was enacted in the exercise of the police power of the state, for the