355 F2d 194 Dubrow v. New Dubrow's Inc

355 F.2d 194

148 U.S.P.Q. 364

Irwin DUBROW, d/b/a Dubrows Seventh Company, Dubrow Parkway,
Inc., Kings Mayflower, Inc., Dubrow Retail Shops,
Inc. and 34th Street Canteen, Inc., Appellants,
NEW DUBROW'S, INC., Appellee.

No. 22405.

United States Court of Appeals Fifth Circuit.

Jan. 20, 1966, Rehearing Denied Feb. 23, 1966.

Julian R. Benjamin, Cassel & Benjamin, Miami, Fla., for appellants.

Joseph A. Perkins, Philip Cook, Miami, Fla., for appellee.

Berore TUTTLE, Chief Judge, WISDOM, Circuit Judge, and FISHER, district judge.


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The appellants, New York members of the Dubrow family, engaged there in the restaurant and related businesses, sought in this action to stop the appellee corporation from operating a Miami, Florida, restaurant under the Dubrow name.


The record on appeal shows that the appellants themselves alleged in their complaint that the Florida Dubrow's cafeteria was organized by George Dubrow, a member of the family; that he sold his stock in the corporation to others, and the corporation continued to operate under the Dubrow name for many years. Upon the bankruptcy of the corporation, its assets were bought by persons who thereafter organized New Dubrow's, Inc., the appellee, to operate a cafeteria at the same location and with the same equipment. The trustee in bankruptcy sold the assets by one sale and the name Dubrow by a separate sale. These orders of sale were not attacked in the bankruptcy court or on appeal.


Upon the filing of a motion for summary judgment supported by affidavits asserting these facts, appellants made no counter showing to establish any basis for the trial court's submission of any issues to the jury. The court therefore properly granted the motion for summary judgment.


The judgment is affirmed.