Volume 13 — Jones & Spencer's New York Superior Court Reports

On and before March 9, 1870, the defendant was a banker at the city of New York, having funds of plaintiffs on deposit. The plaintiffs wishing to invest in bond and mortgage, their attorney-at-law told them that he had arranged with Mrs. Halpine that she should give her bond and a mortgage on land for a loan by plaintiffs of $17,500. On March 9, 1870, one of the plaintiffs went with the attorney to the defendant’s bank.

This action is for the conversion of a certain contract. The contract was made between J. if.

This was a motion noticed for and made at special term, for the examination of defendants Nichols and Hibbard, and an inspection of the… Held: and paying a portion of the premium on the new policy; in some, in paying several premiums on the new policy; and in some instances, in addition to returning the note and paying one or more premiums on the new policy, the payment of a cash sum to the policy-holder, as the circumstances of each individual case might warrant.” The…

<p>Tobts.—Choses nr action, assignability of.</p> <p>A cause of action in tort, affecting the property rather than, the person of the claimant, may be bought and sold.</p> <p>In this case, plaintiff was induced by the fraudulent statements of the defendant to enter into a copartnership with him, and to contribute a large sum ag capital thereto, which sum was lost to plaintiff by defendant’s said deceit and subsequent fraudulent acts. Afterwards, and prior to the commencement of this action against defendant for deceit, plaintiff petitioned for and obtained a discharge in bankruptcy.</p> <p>Held, that upon the above facts action cannot be maintained by plaintiff; that whatever claim he may have had against defendant passed by the assignment to his creditors, as an asset.</p>

This action was brought for the foreclosure of a mortgage. The answer of the defendant set up: 1st, usury; 2d, that one Anthon was agent and attorney for the plaintiff in and about the making of said loan; and that the plaintiff had, through such agent, required as a condition of making the loan to pay over to her the sum of $1,433.66, which the plaintiff was to apply to the payment of taxes and assessments on the mortgaged premises.

This action was tried by the court without a jury, and was brought to compel the sale and a distribution of the proceeds of two thousand shares of the capital stock of the St. Joseph Lead Company, transferred by plaintiff to defendant Kent’s intestate, in June, 1876.

<p>DEMURRER TO COMPLAINT, IN AN EQUITY ACTION.</p> <p>1. That causes of action are improperly united therein ;</p> <p>2. That plaintiff has an adequate remedy at law ;</p> <p>3. That the complaint does not state facts sufficient to constitute a cause of action.</p> <p>This action was brought to compel the defendants to account as the general agents of the assignor of the plaintiff. The complaint, although containing many specific allegations in regard to the matters and business of said agency, in truth sets up but one cause of action, and there is no improper joinder of causes of action, arising- out of the agreement, with claims for wrongful conversion, as the demurrer suggests.</p> <p>A demurrer will not lie to the prayer for judgment in the complaint. That the plaintiff has an adequate remedy at law is no ground of demurrer.</p> <p>If the complaint sets up a cause of action, the court has jurisdiction to dispose of a controversy, whether the relief called for be legal or equitable, or both. The forum of the trial, whether before the court or a jury, will be determined when it comes on to be heard.</p> <p>In the case of agencies, such as the case under consideration, where accounts are involved, an action may be brought on the equity side of the court (Story’s Equity Jurisdiction, §§ 462, 463, &c.).</p> <p>This view of the case disposes of the objection, that the complaint does not set up facts sufficient to establish a cause of action.</p>

<p>This is an appeal from a judgment in favor of plaintiffs, entered upon a verdict of a jury, and also from an order denying a motion for a new trial made upon the minutes of Hon. John Sedgwick, the judge before whom the action was tried.</p> <p>The action was brought to recover three several balances of rent, in all amounting to $150, alleged to be due- for the three several quarters ending on August 1, and November 1, 1876, and on February 1, 1877 ; also, to recover $600 alleged to be due for .the quarter ending May 1, 1877, under and in pursuance of an indenture of lease alleged to have beeu made between the plaintiffs, by their agents. William and E. A. Cruikshank, and the defendant, dated March 2, 1876, for one year from May 1, 1876, at the yearly rent of $2,400.</p> <p>Also to recover damages for an alleged breach of covenant in omitting to pay $19.55, the Croton water tax, and omitting to keep the premises in good order and repair, amounting to $300.</p>

Appeal by the defendants from a judgment entered upon a demurrer to the complaint, in favor of the plaintiff. The facts are stated in the opinion. As to the reason of the rule that coercion, compulsion or duress will avoid a contract or relieve a party from the plea in pari delicto : Foshay v. Ferguson, 5 Hill, 174; United States v. Huckabee, 16 Wall. 431; Broome's Common Law, 609.

The defendants were advertising agents. In August, 1874,' they agreed with the plaintiff and his assignor, Niles, that if they would bring to the defendants the officers of a certain Virginia corporation who desired to advertise in various parts of the country, and it should result in a contract between the defendants and the corporation, the defendants would pay the plaintiff and Niles ten per centum on the contract price of the advertising to be done.

The action was brought by the plaintiff for damages sustained by him while in the defendants’ employment, and caused by their negligence. The plaintiff, an iron-worker by trade, was in the employ of defendants, and was engaged in the county court-house, in the city of .New York, removing the iron columns from the interior sides of the rotunda. The defendants were the contractors with the city, for the alterations of the court-house, then in progress.

<p>The plaintiff recovered judgment on July 13, 1877, against Lawrence A. Curry, one of the marshals of the city of New York, in the district court of the city of New York, for the First Judicial District.</p> <p>Curry appealed from that judgment to the general term of the court of common pleas, and gave the usual undertaking required by section 356 of the Code, to stay proceedings, in which the defendants herein were the sureties.</p> <p>It was duly approved by the justice of the district court, and filed in the office of the clerk of the court of common pleas on the day of its approval.</p> <p>A transcript of that judgment was filed in the office of the clerk of the city and county of New York, on the day of its recovery.</p> <p>The judgment appealed from was affirmed by the court of common pleas on November 23, 1877, and, upon entry of judgment of affirmance and filing of transcript thereof in the county clerk’s office, execution was issued on both out of the court of common pleas to the sheriff of the city and county of New York, and, by said sheriff, returned on December 14, 1877, wholly unsatisfied, and the one issued upon the district court judgment was returned to the clerk of the city and county of New York, pursuant to section 1,367 of the Code of Civil Procedure.</p> <p>This action is brought to recover of the defendants the amount of said judgment upon the undertaking given on appeal.</p> <p>At the trial, upon the close of plaintiff’s evidence, the defendants moved for a dismissal of the complaint upon the following grounds.</p> <p>I. That no notice of entry of judgment of affirmance had been given, either to the attorney for Curry in the suit of Ennis v. Curry, or to the sureties (who are defendants here), previous to the commencement of this action.</p> <p>II. That an undertaking to stay proceedings must be delivered to and filed with the justice in the district court. That the undertaking in this action was never delivered to him, but simply approved by him, then ■ immediately taken from him by the person offering it for approval, and filed with the clerk of the court of common pleas, for the mere purpose of perfecting an appeal; and therefore the sureties, at most, are obligated only to the extent of the costs, and the costs having been paid under the order of the court, the plaintiff could recover nothing more in this action.</p> <p>III. That no transcript of the judgment against the marshal having been filed in the office of the clerk o"f the court of common pleas, pursuant to section 8 of chapter 484 of the Laws of 1862, the plaintiff could not maintain this action against the defendants.</p> <p>, IV. That no execution having, been issued and returned to the court of common pleas upon such judgment, the plaintiff could not recover.</p> <p>The court dismissed the complaint, to which order dismissing.the complaint the plaintiff excepted.</p> <p>The court thereupon adjourned for the term. After-wards, plaintiff’s attorney obtained from another judge sitting at Chambers, an order to show cause why a new trial should not be granted upon the minutes of the judge who had presided at the trial. The motion was heard by the judge last referred to, and denied.</p> <p>Plaintiff appealed from the judgment and the order denying motion for new trial.</p>

The action was brought upon a note for $4,000, made by the firm of Charles F. Parker & Co., payable to their own order, and indorsed by them, also indorsed by Alexander Law, and beneath his indorsement with the name of “ John Savery’s Sons ” (defendants’ firm), which note had been discounted by the plaintiff. The defendant Law did not answer.

The action was brought to recover the value of services alleged to have been rendered to the defendant at its request by the plaintiff, as night watchman and patrolman. The answer was in substance a general denial.

This action was tried as an equity cause, and disposed of as such. Certain, allegations of the complaint as to which issues were raised by defendants Clews and Fowler, were held to constitute as to them an action at law, and were directed to be disposed of by a trial by jury. From the judgment entered on the decision an appeal was taken to the general term, where it was affirmed. The decision of the general term is reported (43 N. Y. Sup.

<p>Pleadings.—Practice.—Order requiring defendant to make ANSWER MORE DEFINITE AND CERTAIN.</p> <p>As a general rule, such an order is not appealable. Held, that in this case, the order made deprives the defendant of a substantial right. , '</p> <p>The parts of the answer objected to are confined to denials, and the substance and form thereof. There is no attempt to claim any affirmative right from the plaintiff. In no instance in which the order directs the amendment of the answer, is there any doubt or uncertainty that the answer either puts in issue or admits the corresponding allegations of the complaint. Held, that no amendment is possible which would make the denial or admission any clearer, and the defendant should not and cannot be compelled to submit to the constructions which the plaintiff makes in the complaint of the trust deed, which was the foundation of the action.</p> <p>The order should not have given the plaintiff leave, in case the defendants did not amend, to apply for judgment. The relief should not have extended beyond striking out the allegations complained of; for if these allegations were stricken . out, there was still an issue left to be tried before the plaintiff was entitled to judgment. This part of the order affects a substantial right of the defendant, and is appealable.</p>

In every application for an order for the examination of an adversary before trial, the statutory conditions must be strictly complied with, and in case an order should be inadvertently made, without such compliance on the part of the applicant, it should be vacated even without regard to the merits of the application.

The complaint stated, as a first cause of action, that there were delivered to the defendant at Aix-la-Chapelle twelve bales of cloth, which the defendant agreed to transport to Hew York and deliver there to the plaintiff, under a certain bill of lading particularly set forth; that they did not transport, &c., the said bales, but “ so negligently and improperly conducted itself in the premises ” that, although delivering ten of said bales, it failed to deliver the remaining…

- Appeal by defendant from order overruling demurrer and motion to dismiss appeal. I. The appeal is properly taken. The Code confers the right to appeal. An appeal lies from an interlocutory judgment (Code, § 1349). This is an interlocutory judgment. The judgment appealed from': (1.) Recites the trial of the issues of law raised by the demurrer.

<p>Appeal from order requiring plaintiff to file security for costs.</p>

<p>Appeal by defendants from order overruling demurrer to complaint.</p>

Appeal by the referee appointed to sell in a foreclosure suit, from an order, made on the application of one who, though not a party to the action, yet is the owner of a mortgage made subsequent to the filing of notice of lis pendens, compelling him to pay surplus moneys into court, and sustaining exceptions to the report of sale. This action was to foreclose a mortgage for $5,000, upon land.

The action was against the defendant, as indorser of two promissory notes. The first of these notes fell due January 15,1877, and the second, April 15, 1877. Held: for the purpose of varying and adding to the original resolution, by extending the time 'for the payment of the amounts, and also to allow the debtor to correct his first statement by including the names of plaintiffs. This was corrected, and the resolution was varied.

Exceptions directed to be heard at general term, in first instance, after verdict directed for plaintiff.

order denying a motion for a new trial. The complaint alleged the plaintiff, on,. &c.,was, &c., an incorporated national bank, and that the defendant was president of the Central National Bank ; that at the times, &c., an association of banks known as the Clearing-House, existed, for the purpose of facilitating the settlement of exchanges and balances between the members of the association ; that the plaintiff was not a member ; that the Central Bank was ; that it was…

The facts sufficiently appear in the opinion. I. The action, of which malicious prosecution is alleged, must have been determined in the plaintiffs favor. Held: that no action for a malicious prosecution would lie (McCormick v. Sisson, 7 Cow. 715). II. The plaintiffs failed to show a want of probable cause. 1. ’ This question is a mixed question of law and fact.

Lawrence. The action, though in form brought upon a promissory note, was in fact an action to charge Daniel H. Lawrence as a general partner in the firm of Kings-bury, Abbott & Hulett.

Appeal Horn an order denying a motion to re settle a case on appeal, by inserting therein certain matters stricken out on the original settlement.

<p>Estoppel, created by former 'judgment.</p> <p>By the judgment of the supreme court, in an action in which one Sarah Louisa Hudson was plaintiff, and Isabella Berrand and others were defendants, it was adjudged and decreed that one Mary J. Watson was at the time of her decease lawfully seized and possessed in fee of certain lands and premises described in the said judgment, and that said Isabella Berrand and one Robert Lotta were her heirs at law, and that said lands in question descended to them as such heirs, and it was further adjudged that said lands be sold, in pursuance of the statute, to pay the debts of said Mary J. Watson. Under an execution issued upon said judgment, the said lands were sold, and the title of the plaintiffs in this action was derived from said sale. Held, that this judgment, not having been appealed from, fixed and determined the rights and interests of Isabella Berrand in and to the lands described in the same. It was binding and conclusive upon Isabella Berrand, and all who claim through her (Hudson v. Smith, 39 Super. Ct. 452; Cooper v. Smith, 43 Id. 9).</p> <p>If Mrs. Berrand had any other claim to the land in question than that of heir at law, she should have set it up in that action. Her claim to the land, interposed in that action, is inconsistent with an independent and hostile claim or title to the land to herself personally, which is pleaded in this action; and it must be held that the judgment determined her true rights and interest to the land in question.</p> <p>Mrs. Berrand, and those who claim through or under her, are estopped by that judgment; as against those who claim title under or through it.</p>

<p>Warehousemen.—Their duties and obligations.</p> <p>Must maintain that degree of care over the property intrusted to their care, that men of prudence would exercise under like circumstances in regard to their own property.</p> <p>Are not liable for a return, or for the value of the goods, where the same have been stolen from their possession, without negligence on their part.</p> <p>Theft of the goods may be proven by the proof of facts and circumstances that reasonably establish the conclusion that the goods were stolen.</p> <p>Where the theft of the goods has been established or proven, the burden of proof rests upon the owner of the goods, to establish that the loss or the theft was owing to the negligence or want of care of the warehousemen in respect to the same.</p> <p>Where the testimony as to the negligence of the warehousemen is conflicting, it is the province of the jury and not of the judge to determine, whether or not the loss or theft was occasioned by negligence or want of care on the part of the warehousemen.</p>

This case comes up on exceptions ordered to be heard, in the first instance, at general term, the court having at the trial dismissed the complaint. The action was brought against the defendant as landlord of a store in New York, an upper loft of which the plaintiff had hired for a year, the rent payable monthly from May, 1872, to recover damages for his having fallen upon the floor in December, 1872, several months after he had gone into possession.

<p>This is an appeal from an interlocutory judgment entered upon the decision of the special term of this court, perpetually enjoining the defendants from using any and all of the plaintiff’s labels and trademarks set forth in the complaint, and ordering a reference to ascertain the amount of the plaintiff’s damages sustained thereby.</p> <p>The action was for an injunction against the defendants using plaintiff’s labels and trademarks, and for damages.</p> <p>I. The words “ The India Rubber Comb Company,” the only trademark claimed or described in the complaint, are not and cannot become or be made a trademark (Browne on Tradem. §§ 138, 161, 162, 164, 350, and cases cited). The complaint has not been amended, to claim that anything else enters into the composition of the trademark (see also In re Simpson, 10 Off. Gaz. Pat). The numerals cannot of themselves be a trademark, such as 101, 2 and 32 (Browne on Tradem. §§ 225-233, 442. If the engraving or picture of plaintiff’s factory may be used as a trademark, so may the engraving or picture of the defendant’s factory, especially as they are so unlike as never to deceive or mislead. If the trademark claimed be valid, then the defendants have not used it. The plaintiffs use the words “ India” and “N. Y.,” the defendants do not. The defendants use the word “Jewelry,” which the plaintiffs do not. The defendants use the monogram, while the plaintiffs do not. The plaintiff uses the words (expressing a fraud and falsehood) “ Sole manufacturers of Goodyear’s India Rubber and Gutta Percha Combs,” which the defendants do not. The defendant company has the right to use its own corporate name, and has done so. The plaintiffs never had any trademark or property in the numerals 101, 2 and 32, as claimed. It was not the first or only one who used them, and if it ever acquired any such right, it has been abandoned to the public by acquiescence in their long use by other traders and manufacturers. Fifteen years’ public, open and notorious use by others, is an insurmountable obstacle to the present assertion of exclusive right.'</p> <p>II. If a liberal construction of the complaint would make it a cause of action for fraudulent simulation of labels as distinguished from trademarks, what some writers call unfair and immoral competition (a case not claimed in the complaint), then the plaintiff cannot recover, for the reasons above expressed, especially the differences pointed out under figure 4 of Point I., and also for the following reasons : 1. No intent to defraud has been shown, which must be done to entitle plaintiff to injunction. 2. No actual or successful fraud or deceit has been shown by a single instance of sale of defendants’ goods as and for plaintiff’s, nor of any one calling for or ordering plaintiff’s goods and getting defendants’ instead, which is necessary to entitle plaintiff to judgment for damages or for an accounting. 3. No attempt was made to show either such fraudulent intent, or such actual fraudulent sales. 4. It has not been shown, nor has any attempt been made to show, that any ordinary purchaser looking at either the goods or the labels would mistake the defendants’ for the plaintiff’s. 5. Neither the plaintiff nor the defendants retail goods. They both sell to jobbers, who supply retail dealers, who supply consumers. They each sell at wholesale, in large, paper-wrapped packages, as exhibited in court, the plaintiff putting on these large packages a green label with black letters, and the defendant a white label with blue letters. Nothing could be more distinctly and even glaringly different. If any witness had come into court and said he had been deceived or could be deceived by mistaking one of these labels for the other, the court would simply not have believed him.</p> <p>III. The case of Gillott v. Esterbrook (48 N. Y. 374), does not hold that numbers by themselves may be a trademark, but only that they can be used in connection with other things. The plaintiff’s trademark is described as “ The India Rubber Comb Co.,” without numbers. When this was offered for registration at Washington, and rejected, as stated by plaintiff’s counsel, the engraving of the factory was added, and it was then registered. The trademark and specifications as registered not claiming the right to the use of numbers 101, 3, 33, nor in any way alluding to them, is conclusive evidence that they had never been relied upon as a trademark, or, if so relied on, had been abandoned. The claim and sworn application state, “Our trademark” consists of the words “India Rubber Comb Company, arranged in connection with a representation of our factory at College Point, Long Island.” The document further states that this trademark may be accompanied by a border, but proceeds to allege that the essential features are the words “ India Rubber Comb Company, arranged in connection with a representation of the' India Rubber Comb Company’s factory at College Point, Long Island.” Thus the numbers 101, 2 and 32 are expressly excluded in two ways; by stating what may accompany the trademark, and by stating the essential features of the trademark. They further say “This trademark we have used in our business for three years last past.” The plaintiff cannot have two trademarks, nor dozens or hundreds of them, as it ivould have if each label with a' different number on it be a different trademark. In its complaint it describes one without number, sues the defendant on that description, and to sustain the cause of action puts in evidence a certificate of registration making no claim to numbers as a part of its trademark, and containing a specimen label wdth numbers not mentioned in the complaint or the evidence, to wit, 1 doz.,-No. 4 -7% inch. The plaintiff must abide by its own description and registration. It cannot register one thing and claim another.</p> <p>IY. There was an element, a finding of fact, in Gillott v. Esterbrook, that broadly distinguishes it from this case. The trial judge found, and the court of appeals expressly rely upon the finding, “that the said use by the defendants of said numerals 303, was with a knowledge by them of the rights of the plaintiff to the same, and wdth the intent to obtain for themselves the profits and advantages to which the plaintiff was exclusively entitled in the use of his said trademark, and to mislead the public, and to defraud the plaintiff in that respect.” In this case we have not the knowledge by defendants, of plaintiff’s rights, if it had any, and any such knowledge, as well as the right, is negatived by the long and general use by others. Neither have we the intent to obtain plaintiff’s profits ; nor the intent to mislead the public and defraud the plaintiff, all which are found in the case of Grillott; and none of which are proved in this case.</p> <p>Y. Particular attention is called to the case of Singer Manufacturing Co. v. Wilson (2 Ch. Div. App. 434), a late English case, which perhaps, more nearly than any other case, contains the whole law of trademarks and fraudulent imitations of labels. The case of Boardman v. Meriden Britannia Co. (Cox Tradem. Cas. 490), is not similar in its facts. The case, like Grillott’s IsTo. 303, holds that a number can only be a part of a trademark in connection with other things. When any mark, symbol or device is used merely to indicate the ■ name, quality, style, or size of an article, it cannot be protected as a trademark (see also Coddington's Digest of Tradem. 265).</p> <p>YI. Although, by the long-continued use of certain letters, figures, words, marks or symbols, which do not of themselves and were not designed to indicate the origin or ownership of the goods to which they are attached, but, only to designate the nature, kind, or quality of the different varieties of the article, and because so marked the goods have become known as those of the manufacturer who first used them, such fact cannot alter the original meaning of the words or symbols, or the intent with which they were first used as denoting the name of the thing or its general or relative quality, or take from others the right to employ them in the same sense (Candee v. Deere, 54 Ill. 439).</p> <p>YII. There is no case to be found in which a plaintiff has been allowed to sell the same goods under more than one trademark. The idea of identity, oneness, is necessary to and so embraced in the conception of a trademark, as applicable to a certain kind or line of goods, that divisibility or plurality at once destroys both the conception and the thing. The same trader or manufacturer may have one trademark for his woolen goods, another for his cotton goods, another for his silk goods, and another for his combs, if he makes so many articles. But he cannot have three trademarks for the same comb. In this case the plaintiff has declared on one trademark, its corporate name : “ The India Rubber Comb Companyit has put in evidence eight, all differing in some respects from each other, and has recovered on five, three being always annexed to one article.</p> <p>VIII. The motions to dismiss plaintiff’s complaint, arid again, at conclusion of plaintiff’s testimony, should have been granted. And even if there had been any grounds for retaining the complaint as to the defendant company, the motion to dismiss as to the individual defendants, Sonneborn, Dittenhoefer and Cohn, should have been granted. There was no evidence whatever upon which to base a judgment against them. It is proved, and no attempt made to contradict it, that they were not in the business, individually or personally. That they were officers of the defendant, the Rubber Comb and Jewelry Company, can in no way make them personally responsible. If they had been manufacturers, on their own account, they could not be joined.' It would be a case of alleged wrongs by different parties. Therefore the objection of improper joinder of parties should have been sustained, and all these three defendants should have had judgment for costs.</p> <p>I. The plaintiff’s name, “ The India Rubber Comb Company,” used on or in connection with its manufactures, is a valid trademark, of which the plaintiff is entitled to the exclusive use (Newby v. Oregon Central Rw. Co., 1 Deady, 609). In the matter of the India Rubber Comb Company (Off. Gaz. Pat., November 30, 1875), the opinion of the commissioner contains a citation and discussion of the cases on this point, and he holds that said words constitute a valid trademark (see, also, Colman v. Crump, 70 N. Y. 578). This particular trademark, to wit: the words “The India Rubber Comb Company,” has been 'sustained by the superior court in the case of India Rubber Co. v. Meyer.</p> <p>II. The plaintiff is entitled to the exclusive use of the numbers “101” and “32,” as applied to combs, and the number “2,” as applied to hair-pins (see Gillott v. Esterbrook, 48 N. Y. 374, 377).</p> <p>III. The plaintiff is entitled to the exclusive use of the cut or representation of a building, as shown in the exhibits annexed to the complaint, in connection with combs, and any simulation of such cut should be enjoined. Such a device is a good trademark (Smith v. Reynolds, 10 Blatchf. 100; Kinney v. Basch [unreported]; Coddington Dig. Tradem. 85; Faber v. Hovey, Id. 242; Colman v. Crump, 70 N. Y. 573).</p> <p>IV. The defendants are joint tort feasors, and as such may be sued jointly. The defendant, Dittenhoeffer, is the president of the Rubber Comb and Jewelry Company; the defendant, Sonneborn, is secretary and treasurer; and the defendant, Cohn, is a salesman and corporator (see Goodyear v. Phelps, 3 Blatchf. 91; Poppenhusen v. Falke, 4 Id. 493).</p> <p>V. “ Where the imitation of plaintiff’s trademark is close, and the manner in which defendants’ articles are put up nearly resembles the plaintiff’s, the law must presume it to have been resorted to for the purpose of inducing the public to believe the article is that of the plaintiff, whose trademark is imitated, and for the purpose of supplanting him in the good-will of his business (Curtis v. Bryan, 2 Daly, 312; Taylor v. Carpenter, 11 Paige, 292; Brahan v. Bustard, 9 Law Times, N. S. 199; S. C., 2 New R. 572; Amoskeag Manuf’g Co. v. Spear, 2 Sandf. 599-608; Edelsten v. Edelsten, 9 Jur. N. S. 479; Colman v. Crump, 70 N. Y. 573) And in order to entitle plaintiff to relief, it is not necessary that the imitation should be so close as to deceive persons seeing the two. trademarks side by side (Seixo v. Provezende, Law R., 1 Ch. 192). In a recent case in the house of lords (Worthersspoon v. Currie, 42 Law J. R. N. S. Ch. 130), Lord Chelmsford lays down the rule, that, to establish a case of infringement, it is sufficient if the resemblance is such as to be likely to make unwary purchasers suppose they are purchasing plaintiff’s articles. See, also, in the case of Blackwell v. Armistead (5 Amer. Law Times, 85), decided in 1872.</p> <p>VI. In the case of Gillott v. Esterbrook (48 N. Y. 374), the court of appeals held that the use and advertisement of a trademark by others for a period of fifteen years, where plaintiff had no knowledge of such practice, or acquiesced in the same, did not preclude the owner from enforcing his sole right. And in a suit to enjoin defendants from selling “ Charter Oak” stoves bearing a certain trademark, the fact that parties in other localities manufactured “Charter Oak” stoves, and sent them into the market to compete with plaintiff’s manufactures, in no way aids the defense, unless it appears that the plaintiff assented to or acquiesced in such infringement of his rights (Supreme Ct. of Mo., Filley v. Fassett, 44 Mo. 168). So, in the case of Kinahan v. Bolton (15 Irish Ch. 75), the lord chancellor held that in order to prove acquiescence by a firm in the piratical use of their trademark, knowledge of such use must be proved, and that is not accomplished by the proof of publication of advertisements, which could have been an invasion of the rights of the firm if those advertisements have been issued, not steadily or uniformly,- but interchangeably with other ¡advertisements in some respects similar, but not infringing the rights of the firm.</p> <p>VII. In the case of Dale v. Smithson (12 Abb. Pr. 237), the general term of the common pleas expressly hold that the plaintiff is entitled to protection in the exclusive use of his trademark, although it contains a fictitious name as the name of the manufacturers of the article, provided it does not misrepresent the quality and substance of the manufactured article, and it is not used with fraudulent intent. In the case of Curtis v. Bryan (36 How. Pr. 33) the general term of the common pleas held that false and exaggerated statements in advertisements of the manufactured article, not contained in the label sued on, do not deprive the owner of his right to protection in his exclusive use of his trademark.</p> <p>VIII. The main inquiry in such cases is,- are the ultimate customers deceived ? (Coats v. Holbrook, 2 Sandf. Ch. 586; 3 Barn. & Cress. 541; 5 Dowl. & R. 292).</p> <p>IX. A reference was properly ordered to ascertain the amount of damages sustained by the plaintiff (Blackwell v. Armistead, 5 Amer. Law Times, 85, decided in 1872; Taylor v. Carpenter, Cox Amer. Tradem. Cases, 32; Blofield v. Payne, 4 Barn. & A. 410; 3 Mylne & Cr. 338; Bailey v. Taylor, 1 Russ. & M. 73; Whittington v. Wooler, 2 Swanst. 428). See also a decision of the general term, supreme court, first department, Dec. 30, 1875, in the case of Faber v. Hovey [unreported]; Coddington Dig. Tradem. 242).</p> <p>X. The well-known case of Boardman v. Meriden Britannia Co. (35 Conn. 402, and Cox Amer. Tradem. Cas. 490) resembles in almost every particular the one at bar.</p>

The action was for damages from defendant’s negligence. The complaint alleged that defendant was the owner of a certain building ; that the fourth floor of the building was occupied as a laundry by one George Little, as tenant of defendant; that the defendant was in possession of the other parts of the building ; that the said building was “negligently provided by said defendant with steam power, inasmuch as a certain revolving shaft, which was incidental to the supply of…

<p>Evidence.—Trial.</p> <p>The defendants, on the trial, propose to read, and did offer in evidence certain parts of answers made by a witness (examined under commission for plaintiff), to cross-interrogatories put by defendants; the parts offered being the answers, “so far as the same were responsive to such interrogatories.” Thereupon defendant moved to strike from the answers other parts, as immaterial, irrelevant, and not responsive to the interrogatories; which motion was denied.</p> <p>Reld, that upon the record the conclusion is, that the referee denied a motion to strike out of the deposition certain things which had not been put in evidence or proposed as such, which was not an error for which the judgment can be reversed.</p>

<p>Appeal by plaintiff from a judgment in favor of plaintiff, rendered by a judge at special term. The facts are stated in the opinion of the court.</p> <p>I. The acts of defendant in entering on the premises, and procuring the tenants to attorn, were illegal and void, and. did not in law or in fact interrupt the possession of plaintiff (2 R. S. 507, § 1; 1 R. S. 744, § 3.)</p> <p>II. The attornment did not interrupt the possession of plaintiff; his tenants, Curley and Callaghan, continued in uninterrupted possession. “ The possession of the tenant shall be deemed the possession of the landlord,” “notwithstanding such tenant may have acquired another title, or may have claimed to hold adversely to his landlord ” (2 R. S. 294, § 13; Code of Pro. of 1849, § 86; Code of Civil Pro. of 1876, § 373; Burhans v. Van Zandt, 7 Barb. 91).</p> <p>III. The lease purports to be given under the Law of 1871, c. 381. That law among other things provides : “ § 3. That when a tax has been unpaid for three years after confirmation,- the clerk of arrears may advertise the taxed property for sale.” He is to publish the notice of sale in ten daily newspapers. Upon the sale, a certificate is to be given to each purchaser, describing the lands sold, and the time for which sold, &c. (§ 3). § 4. If no redemption is made, the clerk of arrears is to publish a notice to redeem in one daily newspaper “ in such form as he shall deem best calculated to give notice of such sale, that unless the lands sold be redeemed by' a certain day, they will be conveyed to the purchaser, and if no redemption is made within two years from the date of said certificate, a lease is to be executed to the purchaser.” The lease is declared to be “presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment on said lands .... and all notices required by law ' to be given previous to the expiration of the two years allowed to redeem were regular.” §13. If, “at the time of the conveyance,”—i. e., at the time of making the lease,—the premises are occupied, notice to redeem is to be served “ on the person occupying such lands or tenements, and in all cases, notice to redeem is to-be served on the persons owning the property so conveyed.” The notice is to state the sale and conveyance, the person to whom made, and the amount of consideration money mentioned in the conveyance, with the addition “of the sum paid for the lease,” and that if those sums are not paid the conveyance (lease) will become absolute. § 15. The grantee, “ to complete his title to the land conveyed,” shall file an affidavit with the clerk of arrears of the service of the notice to redeem. § 17. The owner, occupant or any other person may, at any time within the six months mentioned in such notice, redeem, by paying purchase-money and interest, &c.</p> <p>IV. It is too well established to need at this time any confirmation by argument, or citation of authorities, that, independently of any statute, dispensing with such proof, a lease on a sale for taxes can be supported only by the proof of all the preliminaries which authorize a sale. The distinction between the legality and the existence of an assessment was maintained in Sutton v. Calhoun (14 La. Ann. 209). The provision that the sale shall be presumed regular applies only to the sale, and not to the antecedent acts (Doughty v. Hope, 3 Denio, 594). But the statute does not provide that the lease shall be evidence that the tax was remaining unpaid, or that it had remained unpaid for three years, and these are essential to give a power to sell.</p> <p>V. As to the notice of sale, if it was proper (as to which hereafter) to advertise in any newspaper, it should have been published in ten daily newspapers. The notice was published, in nine newspapers,—i. <?., English newspapers. It is claimed that the notice of sale was also published in the City Record. Something was published in a German newspaper, in the German language and German characters. What it was that was so published the court does not know. a. The City Record is not a newspaper. It is the official organ of the corporation of New York. It has no news, is no more a newspaper than is the publication of the proceedings of any body, corporate or natural. The publication, therefore, in that publication goes for nothing, b. A publication in a German paper was not sufficient. The publication in German cannot be a notice to an English-speaking people. For where the language published is one foreign to the place of publication, it will not be assumed that those who heard or read understood it (see Aman v. Damn, 8 Com. B. N. S. 597; Stark. 3 ed. by Folkard, 135; Keene v. Ruff, 1 Clarke [Iowa], 482; Danver’s Abr. Pl. 1, 2, 7). To allege a publication of English words, and prove a publication of words in another tongue, is a variance (Keenholts v. Beeker, 5 Den. 346; Kirschlangher v. Slusser, 12 Ind. 453). Where an indictment for forgery set out the alleged forged instrument in the Prussian language, the whole court of ten judges held the indictment insufficient (Rex v. Goldstein, 3 Brod. & B. 201). Under a commission to examine a foreign witness who cannot speak English, the deposition must be taken in English by an interpreter (Belmore v. Anderson, 2 Cox Ch. Cas. 288). The supreme court of Missouri held, that when legal notices are to be published in á newspaper, an English paper is always intended, unless expressed otherwise (Graham v. King, 50 Mo. 22).</p> <p>VI. The description of the premises to be sold as “lot,” when in truth there was a house and lot, was such a misdescription as should avoid the sale. It is “ of equal if not greater importance that the property should be so definitely described that no purchaser could be at a loss to estimate its value” (Blackwell on Tax Titles, 2 ed. 229).</p> <p>VII. The defect in the publication of the notice to redeem is this : it was published in the Express, and should (if the City Record is a newspaper) have been published in the City Record. Laws of 1869, c. 875, § 1, provided that the mayor and comptroller should designate six daily newspapers, and six weeklies, but no more, in which to publish the proceedings of the board of supervisors, and all proceedings and notices relating to county affairs. Next came Laws of 1870, c. 137, p. 366 (April 5, 1870), which was amended in 1871, c. 574, p. 1231 (April 18, 1871), § 1, and repealed Laws of 1873, c. 335. Then, by Laws of 1870, c. 383, p. 882, § 1, it was provided that all advertisements for the city should be published in newspapers to be designated by the mayor and comptroller, and the payment of any money for advertising of any description, for or on account of the corporation, except in such newspapers, was prohibited. The papers thus designated became known as “Corporation papers.” The court of appeals held that this provision made it imperative to publish in the designated newspapers all advertisements for city and county purposes (Re Douglass, 46 N. Y. 42; Re Astor, 50 Id. 366; Re Smith, 52 Id. 526). Then came Laws of 1871, c. 381 (April 8, 1871), requiring the notices of tax sales to be published in ten daily newspapers, and the notice to redeem in one newspaper. This must have meant, so long as the Laws of 1870, as amended 1871, c. 574 (April 18, 1871), were in force, newspapers designated by the mayor and comptroller. But Laws of 1870, chapters 137 and 883, were repealed by Laws of 1873, c. 335, § 119, p. 522 (the city charter), and by section 111 of that law provision is made for the publication of the City Record, and then it is enacted (1) that all advertising required to be done for the city, and (2) all notices required by law to be published in corporation papers, shall be inserted at the public expense only in the City Record, and a publication therein shall be a sufficient compliance with any law or ordinance requiring publication of such matters or notices. - Then follows an exception in the case of advertising for contracts, and allowing publication in case of contracts in a German newspaper. Section 119 of said act of 1873 repeals all acts and parts of acts inconsistent therewith.</p> <p>YIII. The advertisement to redeem was not properly framed. It should give notice that unless the premises are redeemed by a certain day they will be conveyed to. the purchaser. Redemption must be made “ within two years from the date of the before-mentioned certificate” (Laws of 1871, c. 381, § 4). The certificate here mentioned is the certificate of sale delivered to each purchaser (same law, § 3). Now, the notice published states in the heading, that the lands described in the following list were sold on the 9th, 12th, 18th and 25th days of March, 1874, and that unless redeemed ‘ ‘ on or before the expiration of two years from the date of the respective sales, which will be on 9th, 12th, 18th and 25th days of March, 1876,” the mayor, aldermen and commonalty of the said city will execute leases to the purchasers. Then follows the "description of the property, as thus :</p> <p> </p> <p>How, from these particulars, can the owner know with certainty which is his last day to redeem ? Although his time to redeem is limited by the date of the certificate of the sale, no information whatever as to the date of the certificate is given. If it is said that it will be presumed that the date of the certificate is the , date of the sale, we deny that such a presumption can be indulged in; there is nothing to warrant such a presumption. But allowing such a presumption, then when is the day to redeem % It nowhere appears which property was sold on the 9th, which on the 12th, which on the 18th, or which on the 25th, and how can the owner know on which day his property was sold, or until which day he has to redeem (Hand v. Ballou, 12 N. Y. 541). The extreme accuracy required in these notices is illustrated by the case of Adriance v. McCafferty (2 Robt. 153), where it was held that a notice requiring objections to be served on “ the commissioners,” instead of upon the chairman of the commissioners, made the assessment and sale void.</p> <p>IX. The notice to owner and occupant was not sufficient, because, a. The notice was served before the lease was executed; b. The notice was not served on all the occupants ; c. The notice was served on the former owner, and has never been served on'the owner who was owner “at the time of the conveyance.” There can be no doubt of the fact that the notice to redeem was served before the lease was executed. Cady distinctly states that the lease was not executed until a day or two prior to December 30, 1876, and the defendant states the lease was not delivered until after January 6, 1877, while Daly testified he served the notice on March 22, 1876. The lease is signed by John Kelly, comptroller, and he did not take office until December, 1876. The fact is undoubted as to the time of the execution of the lease, and the law is as undoubted that such a service was premature. Section 13 of the Laws of 1871, c. 381, provides that whenever lands sold for taxes and conveyed shall, at the time of conveyance, be in the actual occupancy of any person, the grantee, to whom the same shall have been conveyed, shall give notice, and the notice is to state the sale and conveyance, the person to whom made, the amount of consideration money mentioned in the conveyance, and the amount paid for the lease, and that, unless redeemed, the conveyance will become absolute. It seems too patent to need argument; indeed, no argument could make it clearer than does the reading of this section, that the notice is not to be served until after the property has been conveyed. Besides, such is the construction put on a similarly worded statute. Marvin, J.: “Hence he must have a conveyance before the notice can be served” (Hand v. Ballou, 12 N. Y. 541; Paillet v. Young, 4 Sandf. 58). Until this notice is served and the six months have expired in which to redeem, the purchaser has no estate in the land. His title is not complete till service made, and affidavit of service filed (Laws of 1871, c. 381, § 15; Smith v. Sanger, 3 Barb. 360). The notice was not served on all the occupants, and until this is done the purchaser’s title is not complete. After service of the notice to redeem, the owner, occupant or any other person may redeem (Laws of 1871, c. 381, § 17; Comstock v. Beardsley, 15 Wend. 348; Bush v. Davison, 16 Wend. 550; Leland v. Bennett, 5 Hill, 286; Smith v. Sanger, 3 Barb. 360). There is one other irregularity which may be urged, the want of filing the affidavit, and notice of demand required by Laws of 1843, c. 230, art. 11, §§ 7, 8, 9, as amended Laws of 1850, c. 121, § 32; but the other objection seems so substantial, it is not deemed necessary to enlarge on this point.</p> <p>X. The motion for a mandamus was addressed to the discretion of the court. It was a mere motion, not an action. And being a mere motion it was not res adjudícala. Besides, the same question was not in issue in the motion as in the action (Lalor v. Dunning, 56 How. Pr. 209; Boon v. Moss, 70 N. Y. 466).</p> <p>I. The-lease established aprima facie title in the defendant to hold and enjoy the premises for the term of sixty years, and threw upon the plaintiff the burden of showing that title to be bad. It was objected by the counsel for the plaintiff at the trial that the act intended that the lease should be presumptive evidence of the regularity of the "proceedings only, and that it was incumbent upon the purchaser at the tax sale, the defendant here, to show by other evidence the fact that the proceedings had been had ; and the lease itself showed only their regularity after they had been proved to have taken place, and for this construction counsel referred to two cases, but neither of them appear to have arisen under'a statute similar to that of 1871 (14 La. Ann. 209; 3 Den. 594; Blackwell, 401, § 4). We are not without judicial decisions to the same effect in this State (Bank of Utica v. Mersereau, 3 Barb. Ch. 528). In Hand v. Ballard, 12 N. Y. 543, the court says: “The legislature certainly have power to determine by law what shall in civil cases be received by the courts as presumptive evidence.” Under the California statute of 1854 it was not necessary to recite in a tax deed the various acts showing a compliance by the revenue officers with the condition of the statute. Hecitals of these acts in the deed are prima facie evidence, but if not inserted, may be proved aliunde (Weatherby v. Dunn, 32 Cal. 106; Morse v. Shear, 25 Id. 38). Nor is it necessary, before introducing the deed in evidence, to prove that the person by whom it was executed held the office of tax collector when the sale was made. “ General recitals that the property was duly assessed, and the tax levied upon it according to law, are sufficient to make the deed prima facie evidence” (33 Cal. 287; 39 Id. 326).</p> <p>II. The sale was well and sufficiently advertised. The proof is that the advertisement was published in eleven daily newspapers, ten in the English language, and one in the German language. It has been contended that the City Record was not such a newspaper as was required, by the act of 1871. But the act does not describe the newspapers in which the notice shall be published, further than that they shall be “daily newspapers published in the city of New York.” It appears that the City Record publishes news, and of an interesting and important character—viz., the proceedings of the several departments of the city government, proposed municipal improvements, contracts and investments. The several departments are furnished with copies of the paper. They are furnished gratuitously to every newspaper, public library, and public institution, and it may be sold to the public generally. To say, in the face of these facts, that the City Record is not a daily newspaper, seems .to be the merest hypercriticism. But even without the advertisement in the City Record, the notice of the sale was sufficiently published. The law, chapter 381, section 3, of 1871, does not require the notice to be published in the English language. The only statutory provision in this State for the use of the English language is to be found in the third volume of the Revised Statutes, at page 467, which is that “allwrits, processes, proceedings and records in any court within this State, shall be hereafter conducted in the English language.” What the legislature intended when it provided for the publication of the notice of sale, was that the best and fullest publicity should be given, to the end that the notice might reach the owners of property listed for sale, and all persons likely to be in any way interested therein. It is a fact so well known that the court will take judicial cognizance of it, that a very lar^e number of our citizens, probably one-fifth of the entire population of the city of New York, are Germans, speaking and reading the German language, and many of them no other. The cases cited by the learned counsel to sustain his objection to the publication in the Staats Zeitung are none of them applicable to this case. With one or two exceptions they were cases of libel or slander, and went only to this extent, that where the words were uttered in a foreign tongue, it should be shown that they were understood by those who heard or read them.</p> <p>But in one case of slander, Wright, J., said— citing Starkie, p. 85: “If that is good law, the rule seems equally applicable to German words, spoken in a German county like this” (Bechtell v. Shatler, Wright [O.], 107). The Missouri case undoubtedly •depended in some measure upon a statute in relation to legal proceedings similar to that in force in this State, and cited swpra, or it may well be founded upon the English statute in the same behalf, which is part of the common law in this country. The provision of the charter of 1873 (Laws of 1873, p. 515), for the publication of notices in the German language, we submit, sustains the action of the comptroller in making the German publication—it is a direct legislative recognition of the fact of the large German-speaking and reading population of the city of Hew York.</p> <p>' III. The description of the property in the notice of sale was sufficient. It was described as being Ward Ho. 4 in block Ho. :¡39, between the Third and Fourth avenues and Eighty-eighth and Eighty-ninth streets, and assessed to Thorp, the owner (Blackwell's Tax Titles, 250; Ronkendorff v. Taylor, 4 Pet. 349; 2 Ohio, 278; 3 Miss. 452).</p> <p>IV. The notice to redeem was well and sufficiently published. That notice stated the location and description of the property, and the ownership, precisely as in the notice of sale, and gave the amount for which the property was sold. It is objected that this notice stated that the sale took place on several successive days, and that the property might be redeemed within two years from the time of sale, and did not state as to each particular lot, nor as to the lot in question, upon what day it was sold. The act, chapter 381 of the Laws of 1871, says, at section 4: “ The clerk of arrears, under the direction of the comptroller of the city of New York, shall cause an advertisement to be published at least twice in each week, for six weeks successively, in one of the daily newspapers printed ' and published in the city of New York, in such form as he shall deem best calculated to give notice of such sale, that unless the lands and tenements sold be redeemed by a certain day, they will be conveyed to the purchaser.” The form of the notice is here left to the discretion of the clerk of arrears. Embodying, as it does, all the essential particulars, the court will not now say that that discretion was improperly exercised. It would be a strong case, indeed, a manifest case, of carelessness or negligence, which the court would so characterize. That the exact day upon which the lot in question was sold, was not stated, was not calculated to mislead, or in any way injure, the owner or the person wishing to redeem. The notice stated that the sale was held on several different days, commencing on March 9. The notice to redeem is not required to be published in the City Record. The learned counsel cited the Laws of 1869, chapter 875, and the Charters of 1870 and 1873, to show that the notice to redeem should be published in designated official papers, and that since 1873 the City Record was such paper. The most cursory examination will satisfy the court that those acts have no bearing upon the advertisement either of sales for taxes, or to redeem therefrom. The designated official papers were to publish the proceedings of the supervisors and of the common council, and no others were required to be published therein, and the cases cited were all proceedings to vacate assessments, where the questions were as to the publication of the resolutions and ordinances of the common council. The law of 1871, chapter 381, however, stands separate and apart from the charters, and there is no necessary connection between them ; they are not in pari materia, neither are they in conflict, but if there is any conflict between the act pf 1871 and the charter of 1870, then the charter must be held to be modified by the act of 1871, that being the later. So much down, to 1873. Under the charter of that year counsel argues that publication of notice to redeem must of necessity be made in the Qity Record^ because at section 111 it is provided that all advertising required to be done for the city, and “all notices required by law to be published in corporation papers, shall be inserted at the public expense only in the City Record;” the erroneous punctuation of the extracted words in the appellant’s brief shows how the learned counsel fell into his mistaken construction of the statute. There is no law requiring the notice in question to be published in corporation papers, and the prohibition as to publication in other papers is only as to publication at the public expense. The expense of publishing the notices under the law of 1871, first in ten papers and then in one, is, pursuant to section 3, to be charged upon the property, and included in the amount for which it is sold; these publications are not, therefore, at the public expense, and not within the prohibition of the charter.</p> <p>Y. The notice to redeem, within the additional period of six months, was also served within the time required by the statute. It is contended that the statute contemplates a service by the purchaser at the time, and only at the time, of the actual delivery of the conveyance to him, and for that several authorities were cited (Comstock v. Beardsley, 15 Wend. 348; and Hand v. Ballou, 12 N. Y. 541). These cases were different in every essential from the case at bar. Both were sold by the comptroller of the state, and absolute deeds in fee were given. In the first case, the lands sold were occupied by one Bean, who apparently had no title thereto, but who lived upon and cultivated the lands. Ho notice to redeem, was ever given to him. The court held that he was in the actual occupancy of the premises, and therefore notice should have been given. In Hand v. Ballou, the land was sold in December, 1848, and on December 17, 1850, the purchaser became entitled to the deed, which, bearing that date, was actually delivered in July, 1851. In December, 1850, the land was not occupied, but it was in July, 1851. Ho notice to redeem whatever was given to any one. It is also contended that the notice was not adequately served, because not served upon all the tenants of the premises. It never was intended that personal service of the notice should be made upon the occupant of every room in a tenement house. The principal tenant upon these premises, occupying the principal apartment, was Mrs. Callahan, and she was actually served with the written notice. The other tenant was present, and had a verbal notice of the whole thing. It was explained to him, and he understood it. The occupant whom the statute intended should be served with this notice, was such an occupant as could be made liable for the tax. This was held in the case of Comstock v. Beardsley, before cited. Moreover, this objection is not available to the plaintiff, but only to the tenant not served. Even less tenable is the objection that Donahue was not served with notice ; he knew that the time for issuing the lease had arrived, and that notice to redeem might have been duly served on Thorp. The law of 1871 forbids the recording of the lease until the certificate prescribed by that act has been given, and as we have seen that the lease and certificate are given together, the appellant’s construction would prevent a title under a tax sale from ever vesting.</p> <p>YI. It should be borne in mind that the previous decisions upon the validity of tax titles have been made in cases where the fee of the property was disposed of, and not where, as in New York city, the utmost that can be conveyed is a leasehold interest. Formerly, too, the laws governing sales for taxes were invalid, cumbrous, and difficult of execution and of comprehension. Where the laws have been simplified, and are easy to be understood, and carefully regard the rights and interests of the citizen, the same reason for straining every point against a tax-title does not exist (McMillen v. Robbins, 5 Hamm. 28; Hinman v. Pope, 1 Gilm. 141, 142, Searles, J., dissenting; Atkins v. Hinman, 2 Id. 452, 453).</p> <p>VII. At most, the plaintiff is entitled only to redeem. We have shown, we submit, that the sale, and the lease given thereunder, were valid, and if the purchaser has not served the notice to redeem, in accordance with the provisions of the statute, it would not invalidate the lease, but only extend the property-owner’ s time to redeem.</p> <p>.VIII. The plaintiff is not entitled to recover in this proceeding or to maintain this action. 1. This is a strictly statutory proceeding, unknown at common law. The burden of proof, therefore, is upon the plaintiff, to show that his case is within the provisions of the statute, otherwise he cannot maintain his action (Bailey v. Southwick, 6 Lans. 366; Austin v. Goodrich, 49 N. Y. 266). 2. One of the first requisites of the statute is that the plaintiff must prove that he, or those through whom he claims, have been for three whole years prior to the commencement of the action in the actual possession of the property, claiming the same in fee, &c. (R. S. title 2, c. 5, part III.; see § 1; § 2, subd. 3; and § 7). 3. It is submitted that the defendant clearly proved that the plaintiff was not in the actual possession of the premises during a period of three months shortly prior to the commencement of this action. It is not disputed that O’Conor,, the defendant, claiming title to these premises, collected the rents of the same for the months of February, March and April, 1877, made alterations and repairs therein, and placed a new tenant, Bennett, in the upper story. The term actual possession, as used in this statute, has been the subject of judicial interpretation, and has been held' tó mean the actual physical use, occupation and enjoyment of property, whether legal or not, as distinguished from a strictly legal or constitutional possession (see Boylston v. Wheeler, 61 N. Y. 521; Churchill v. Onderdonk, 59 Id. 134; Cleveland v. Crawford, 7 Hun, 616). 4. But the appellant claims that O’Conor was a mere trespasser on his property, and had no right to collect rents or take possession. The answer to this is that if O’ Conor was a trespasser, then he must have been in the actual possession of the premises, or some part thereof, in order to constitute trespass, and that such possession on his part would defeat the plaintiff’s right to recover in this action. But O’Conor was not a trespasser, if his lease was valid. In that case he was entitled to the possession of the property, no matter how that possession was obtained. And if this latter proposition were not true, the defendant has shown that he obtained possession lawfully. The tenants attorned and paid rent to him, as they had á right to do. While a tenant may not dispute the title of his landlord, he may always show that his title has ceased and may attorn and pay rent to the rightful owner (see Despard v. Walbridge, 15 N. Y. 377; Jackson v. Rowland, 6 Wend. 670).</p> <p>IX. Another action for the same cause is pending between the same parties. The affidavits, notice of motion and notice of appeal from order denying motion, offered in evidence by the defendant, show that another action, or proceeding, for the same cause as in this action, and between the same parties, is now pending. It is true that this prior proceeding is not an action, but a special proceeding, and that the clerk of arrears, who is a party defendant in that proceeding, is not made a party to this action, but both these objections have been held to be immaterial. The object of both actions is the same, and the pendency of the first is a bar to the second (Dwight v. St. John, 25 N. Y. 203; see Groshon v. Lyon, 16 Barb. 461; Ogden v. Bodle, 2 Duer, 611).</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>Security on appeal.—Waiver.</p> <p>The defendants, pending this appeal, deposited, under stipulation, bonds to an amount less than that specified by the Code as security in such cases. Held, that they thereby waived all right to the exercise of the discretion of the court, in limiting or reducing the amount of security.</p>

<p>Sham answer.—Motion to strike out.</p> <p>A pleading upon information and belief cannot be stricken out as sham, unless it clearly appears that there could not have been any information or belief.</p> <p>The principles1 stated in Wayland v. Tyson (45 N. Y. 281), and Thompson v. Erie R. R. Co. (45 Id. 468), prevent an affirmative defense being stricken out as sham upon affidavits.</p>

<p>Appeal from judgment- at special term.</p>

I. The attorney shall have a written request from the plaintiff, or his agent, to commence the action, or a written recognition of the authority of the attorney to commence the same (2 R. S. 306). Said attorneys did not possess such request, nor do they produce any such recognition. II. No general retainer to attend to the business of the plaintiff is sufficient; it must be specific (Howard v. Howard, 11 How. Pr. 80).

<p>Appeal from judgment for plaintiff.</p>

<p>Appeal from judgment dismissing complaint.</p>

This action was brought to recover the amount of certain loans made by Frederick S. Heiser to the defendant in 1868, and also to recover the amount of advanees made by said Heiser, in order to protect his interest in a certain lease assigned by the said defendant to said Heiser, as security for the greater part of said loan. The defendant, by his answer, admits an indebtedness of a limited amount.

<p>Execution against the person.</p> <p>Section 572 of the Code of Civil Procedure provides that an. execution against the person must be issued within three months after entry of judgment, where the defendant is in actual custody by virtue of an order of arrest in the action.</p> <p>A defendant released from the order of arrest in the action, and on bail, is not in actual custody within the true intent and meaning of the term, as used in the section referred to.</p> <p>It seems that, in case of bail to the limits of the jail, a different rule prevsils, for in such case the person is really imprisoned upon an execution, within the limits of the jail.</p>

<p>Exceptions ordered to be heard at general term, in the first instance.</p>

The action was in ejectment. The plaintiff claimed as lessee from the corporation of the city of New York, for the term of one thousand years, on a sale for unpaid taxes. The defendant had, after the first trial, claimed and procured a new trial. The motion for the order appealed from was for a second new. trial.

The complaint charged that defendant’s negligence caused the death of plaintiff’s intestate, and claimed damage thereupon, to the next of kin. The circumstances of the death were as follows: The defendants owned and did business in a brewery in which was an elevator, that was worked from the cellar floor to the highest floor. They had contracted, with one Everspacher, that he should build for them an ice-house in the brewery.

<p>Appeal by defendant from judgment, entered on report of referee.</p>

I. Proceedings for a contempt of court, having in view the commitment of the defendant to close custody, cannot be had for disobedience of a final judgment, where, by law, an execution can be awarded for the collection of a sum of money, directed and ordered to be paid by such final judgment (Code Civ. Pro. § 14, subd. 3; Lansing v. Lansing, 4 Lans. 371; 2 R. S. Edm. ed. c. 8, tit. 13). II.

Case agreed upon in a controversy submitted without action, under section 1279 of the Code of Civil Procedure. Held: that it was restrained by the particular words, to the judgment only ; and did not operate upon a mortgage between the parties” (Jackson v. Stackhouse, 1 Cow. 122; See also McIntyre v. Williamson, 1 Ed. Chan. 34; Browning v. Wright, 2 B. & P. 13). III.

The facts in the case appear in the opinion of the court. I. If an original lease was legally made in 1872, by which the corporation, now known as the mayor, aldermen, &c., was made liable for rent for the plaintiff’s premises, the liability continued under the Revised Statutes relative to tenants holding over (Witt v. Mayor, &c., 5 Robt. 248; 6 Id. 441; Schuyler v. Smith, 51 N. Y. 309; Marquart v. La Farge, 5 Duer, 559; Taggart v. Roosevelt, 8 How.

<p>Party in interest.</p> <p>Under the Code, a plaintiff is the real party in interest when he has a valid transfer, and holds the legal title to the demand that is the subject of the action.</p> <p>It is not necessary that there should be any valuable consideration for the transfer or indorsement of the demand to the plaintiff.</p> <p>The defendant is fully protected by a payment of the same, on a recovery by the assignee or indorsee of the demand. ■</p> <p>The grounds of reversal by the court of appeals, of the case of Hays v. Southgate (10 Hun, 511), not applicable to this case.</p>

Appeal by defendants from a judgment of the special term. The plaintiff, by contract in writing, on November 15, 1871, agreed to sell to the defendants and James A. Williamson, for $44,000, a tract of land in the State of Hew Jersey, to be paid $10,000 in cash, and the balance to be secured by bond and mortgage upon the property purchased.

In the month of April, 1871, the defendant, F. C. Moltz, commenced an action of crim. con. against the plaintiff herein, in the court of common pleas, for the city and county of Hew York. The plaintiff herein was arrested, after an undertaking on order of arrest had been executed, which was signed by F. C. Moltz as principal, and F. W. Specht and John M. Schipidt as sureties.

Exceptions ordered to be heard at general term, in the first instance, upon the direction of a verdict for the defendant.

<p>Appeal by defendant from judgment of the special term. The facts of the case sufficiently appear in the opinion of the court.</p>

Appeal by plaintiff from an order denying a motion to vacate an order for the examination of the plaintiff before trial, and directing the plaintiff to appear and be examined, and that his deposition be taken pursuant to section 873 of the Code of Civil Procedure, before one of the justices of this court at chambers in the city of New York.

Appeal by plaintiff from an order denying a motion for an extra allowance, made on behalf of plaintiff, with §10 costs of motion, to be paid by the plaintiff’s attorney personally, and by plaintiff’s attorney, from so much of the order as charged him personally with costs. The facts appear in the opinion. I. At common law, an attorney is held answerable to the summary jurisdiction of the court for every act of official misconduct (2 Greenl. Ev. § 147).

Appeal, by defendant from a judgment in favor of the plaintiffs, entered upon the report of referee. The facts sufficiently appear in the opinion.

<p>Appeal by defendant from an order, in which the sheriff’s fees on an execution were taxed at $48.92.</p>

<p>Principal and factor.—Agent.—Commission merchant.</p> <p>In a sale of goods to a, factor or agent, who purchases in his own namb, and to whom the credit is given and the merchandise billed and charged, the principal is not liable to respond to the vendor for the price of the goods, where it appears that the principal has paid his factor or agent, for the goods.</p> <p>In the case at bar, the defendants (being a foreign house) employed one Murphy, a commission merchant, doing business in New York, to purchase goods for them in the latter place, on their orders given from time to time, without reference to the persons or firms from whom he should make such purchases, and they paid Murphy for the goods, and a commission for his service. Plaintiff sold to Murphy some goods that he had been thus ordered to purchase for defendants. Murphy bought in his own name, and plaintiff made out the bills in the name of Murphy, and charged the goods to him, and demanded payment from Murphy; but failing to obtain payment, and learning that the goods were purchased for, and delivered to defendants, they seek to recover their value from the latter, although defendants .had paid Murphy for the goods.</p> <p>Plaintiff had no direct personal relations with defendants, although they had information or knowledge that Murphy had orders from defendants to purchase goods for them in New York. They gave the credit to Murphy, and treated him as a principal.</p> <p>Held, that in such a case, the law does not provide for nor permit the substitution of the principal as a party liable to respond to the plaintiffs, for the merchandise purchased of them by the agent.</p>

20. The plaintiffs bring this action to recover a balance of money they had deposited with the defendant. The defendant answered that the money so deposited had been paid out from t-inSe to time on the checks of the plaintiffs, and that they had, at various times, rendered their accounts and vouchers for such payments to the plaintiffs, who made no objection to such accounts, and pointed out no errors.

At the trial, the court directed a verdict for the plaintiff, to which the defendant excepted. The court directed the defendant’s exceptions to be heard, in the first instance, at the general term, and an order to that effect was entered in accordance with section 1000 of the Code of Civil Procedure.

Appeal by defendants from judgment and from order denying motion for a new trial. The complaint stated that Albert Havemeyer died possessed of certain shares of stock of the Long Island Railroad Company.

This action was brought for the adjustment and settlement of partnership accounts of the firm of James Anderson,& Co. The complaint averred, and the answer admitted, a dissolution of the firm. A receiver was appointed in the action. An order was made, referring the action to a referee, to take and state the accounts.

The facts alleged in the complaint are: 1. That the defendants-have become liable to respond for all the debts and liabilities of the town of Morrisania. 2. That the plaintiff owned in fee certain lands in said town at all the dates hereinafter named. 3. That on September 17, 1872, the Board of Trustees of Morrisania confirmed an assessment for grading Willis avenue, of an aggregate amount of $20,348.75, of which the land of the plaintiff was assessed. $3,092.00. 4.

<p>Appeal from order denying plaintiff’s motion for leave to discontinue action without costs.</p>

60 in favor of the plaintiff against the defendant, and granting a new trial. The motion for a new trial was made on the judge’s minutes, upon exceptions taken during the trial, and on the ground that the verdict was contrary to the evidence, and the damages excessive. The action was brought to recover the sum of $6,255.60, and interest, under an alleged contract, made with the defendants, to complete the filling-in, grading and finishing of the Fifth avenue, in the city of.

<p>Equity, among judgment creditors op insolvents.—Modification OF JUDGMENT ON APPEAL.</p> <p>Courts of equity are accustomed to relieve judgment creditors, against impediments fraudulently or inequitably interposed against their legal remedies.</p> <p>Wherever superior equities exist, and are established in favor of one judgment creditor or a class of creditors against other judgment creditors, or against the property of their common debtors, court of equity have full jurisdiction in the premises, to adjudicate upon and enforce the same, by judgment in reference thereto.</p> <p>A judgment of tliis character maybe modified by the appellate court in accordance with its views of such equities, without costs to either party.</p>

<p>Appeal from judgment.</p>

<p>Appeal from an order referring the issues to a referee to hear and determine the same.</p>

<p>cOOTXHT OF APPEALS, JUDGMENT OF.</p> <p>"Where the court of appeals reverses the judgment of the court below, unless the plaintiff stipulates to deduct therefrom certain amounts with interest, &c., but does not direct that- plaintiffs’ costs on appeal to the general term be waived or deducted, this court will not modify the judgment by any change of the con-editions therein.</p>

• The action is brought upon three bonds and mortgages made by Caroline A. Scranton to Eliza A. D. Tweed on premises on West Seventy-fourth street, in the city of New York, and dated January 15, 1874. On July 9, 1874, Eliza A. D. Tweed assigned these three bonds and mortgages to S. Foster Dewey, who on July 24, 1874, assigned them to the plaintiff.

<p>I. MORTGAGEE.</p> <p>1. DISCHARGE OP PART OP PREMISES ALIENED BY OPERATION OP A RELEASE OP THE PART RETAINED.</p> <p>1. General rule does not operate, when.</p> <p>1. Does not, unless the releasor has hnowledge of the fact of the alienation or notice sufficient to put him upon inquiry.</p> <p>(cs) Notice, sotticibnct oe.</p> <p>1. What is not. The record of the deed of itself is not.</p> <p>2. What is. Where it appears that the deed was recorded before the release was given, that the releasor employed an attorney to make the necessary searches and prepare the release, who did make the searches, and found various conveyances (there being ten several lots released), and reported the result to his client, and the attorney, being called as a witness, did not, by his evidence, negative the presumption that he found the deed of the lot in question on record,—Held, sufficient notice to the releasor, although he testified that he could not recollect that he was informed of the conveyance of the lot in question.</p> <p>2. Does not operate as a discharge from so much of the debt as remains after applying thereto the value of the lands released, even though the releasor had notice of the alienation.</p> <p>3. Involuntary release.</p> <p>1. Building contract. Land was conveyed, and a mortgage taken back for the whole purchase-money, and simultaneously therewith a contract was entered into between the vendor and vendee, whereby the vendee agreed to erect eleven houses on the land, and the vendor agreed to loan money to the vende ■ to be applied toward the erection of buildings thereon, the advances to be made at certain steps of the building, and to take back mortgages for the advances, and on the completion of the houses a mortgage was to be given on each house and lot for the one-eleventh of the whole purchase-money and of the advances, and all other mortgages were to be removed and canceled. At a certain stage of the contract there was due the vendor for advances $18,700, and for purchase-money $29,920, total, $48,020. The vendee then made to an insurance company eleven mortgages, each for $4,000, one on each lot. The money received on these mortgages ($44,000), was paid over to the vendor (who discharged the purchase-money mortgage) thus leaving due the vendor $4,020. Thereafter the vendor made another advance called for by the contract, amounting to $0,600, making then due him $11,220. for which the mortgage in suit, covering ail the lots subject to the mortgages held by the insurance company, was made to him by the 'vendee and his wife. The description in this mortgage does not indicate into how many lots the premises were subdivided ; but contained this provision: “In case of foreclosure of this mortgage, all to be sold in one parcel, or in single lots, at option of ” the mortgagee. It was agreed between the vendor and vendee, that this mortgage should be held by the vendor, as security, until he got his final mortgages, which would be eleven of $1,770 each. This mortgage was recorded May 17, 1878. By October, 1878, the vendee had sold and conveyed eight of the lots. One of the eight was the lot in question, which was sold and conveyed to the defendant August 23, 1878. Subsequent to this sale to defendants, the original vendor made to his vendee the last advance called for by the contract, amounting to $8,250. Second mortgages of $1,770 were given on each of these eight lots (except the one sold to defendants), which were turned over to the original vendor; the original vendee gave to the original vendor a second mortgage of $1,770, on each of the three lots remaining unsold by him. The ten lots on which the second mortgages of $1,770 were given, were released from the mortgage of $11,220. It was agreed between the original vendor and vendee, that these ten mortgages should be applied first to the last advance of $8,250, and then on the mortgage for $11,220, which left $1,770 of the mortgage of $11,220 (which $1,770, with the first mortgage of $4,000 on the lot, constitutes one-eleventh of $63,470, the aggregate amount of the purchase-money and advances), a charge on defendants’ lot, unless that lot was relieved therefrom by force of the above-mentioned releases. It should be mentioned that the deed to defendants conveyed subject to two mortgages amounting in the aggregate to $5,000, which, by their answer, they admit had reference to the mortgage of $4,000, and to one-eleventh of the mortgage of $11,220.</p> <p>Held,</p> <p>that the mortgage for $11,220 continued to be, and was a lien on defendants’ lot to the extent of $1,770, with interest.</p> <p>II. VENDOR'S LIEN.</p> <p>1. Under the above circumstances, and it further appearing that the deed to defendant was made in payment of materials, &c., theretofore supplied by them to the vendee, which were used for, and upon the houses.</p> <p>Held,</p> <p>that the contract between the vendee and vendor constituted an equitable mortgage and a specific lien for the said sum of $1,770, on defendants’ lot, and the vendor was in this aspect entitled to a judgment of foreclosure and sale.</p>

<p>Appeal by defendants from judgment and order denying motion for new trial on the minutes.</p>

<p>Appeal by defendant from judgment entered on report of referee.</p>

This, was an action for an injunction to restrain defendant Smith and his attorney from prosecuting'an appeal taken in an action between the plaintiff and defendants Bradley and Smith. This plaintiff claimed that Smith had expressed a determination not to appeal, and that he was afterwards induced to do so by his co-defendant, Bradley, who desired an appeal to be taken to promote his own interest, and who was aiding in the prosecution of Smith’s appeal.

<p>Motion for re-argument after order, of general term reversing the judgment below.</p>

<p>Appeal from judgment in favor of defendants on two demurrers, severally interposed by them to complaint.</p>

Appeal by defendants from an order denying their motion for the substitution of an attorney in place of the one originally retained by them. The original attorney was the respondent. The appeal is from an order denying defendants’ motion for a substitution of attorney. On the motion it appeared that no complaint was made against the attorney, and that the object for which the benefit of his services was required had been accomplished.

<p>Appeal by the defendants from a judgment rendered upon the report of a referee.</p>