Volume 25 — New York State Reporter

<p>■1. Equity—Equitable assignment—When not revocable.</p> <p>1 The defendants, as attorneys of one L., brought an action against the ■ B. E. and 0.-R. Co. and recovered judgment. Before the appeal taken , from the judgment was decided, L., who was indebted to plaintiff, executed an order directing defendants to pay over to plaintiff the amount ; collected upon the judgment after deducting their costs and charges. i This order was delivered to plaintiff and subsequently left in custody of , defendants. While the appeal from the judgment was pending, L. endorsed upon the order a notice withdrawing the same and requiring that the money be paid over to him. The defendants collected the amount of the judgment, and the plaintiff thereafter demanded the proceeds thereof r ' from defendants, which was refused. The plaintiff thereupon presented his petition entitled in the action in which the judgment was recovered, - asking for an order requiring defendant to pay over the amount collected, and made a motion for the relief as therein prayed for. This motion was ; denied. Held, that the order executed by L. was an equitable assignment of the proceeds of the judgment, and not the subject of countermand, that ' the defendants held the same in trust for the plaintiff, and that the pro- • ceedings resulting in the denial of the motion upon the petition are no bar ■ to this action.</p> <p>3. Same—Payment—Burden of proof.</p> <p>i . It was urged by defendants that the claim which plaintiff held against L. and as security for the payment of which the order was given, was paid prior to the commencement of this action. Held, that the burden of establishing that defence was upon the defendants.</p>

<p>1. Trade mark—Right to exclusive use oe words or symbols.</p> <p>The owner of a trade mark has no right to the exclusive use of any words, letters, figures, or symbols, which have no relation to the origin or ownership of the goods, hut are only meant to indicate their names or quality. He has no right to appropriate a sign or symbol which, from the nature of the fact it is used to signify, others may employ with equal truth, and have an equal right to employ for the same purpose.</p> <p>3. Same—When party restrained from use of label.</p> <p>Where it appears from the continuation, location and general description of the words used for the case or wrapper of a cigarette, that a person in the employment of the words selected by him, has endeavored to imitate a label used and adopted by another, and from the nature of the device resorted to, deception and injury would be caused, although such person may employ the words he has the legal right to select and use, yet he violates the rights of the other by so printing, placing and arranging them as to produce the conclusion that the manufacture is that of the other party, and when that is the case such other party is entitled to relief from such a composition and use of his label as is calculated to deceive his customers.</p> <p>3. Same—When action maintainable.</p> <p>The fact that plaintiff derived his right to the use of his wrapper by assignment is sufficient to entitle him to the protection applied for.</p>

<p>1. Evidence—Order of proof—Admissibility.</p> <p>The action was brought upon an instrument for the payment of money. The plaintiff over the objection of defendant was permitted to introduce testimony to show that at the time the note was made plaintiff had money. At the time the evidence was offered, it was not relevant to any fact, but upon plaintiff’s statement that he anticipated proof by defendant tending to establish, that at this time when the money was advanced, plaintiff had in fact no money, the court permitted it. saying “I will take it de lene esse, and if it does not appear material, will rule it out. Held, no error, as the ruling related only to the order of proof.</p> <p>Same—When objection as to competency not available.</p> <p>Held, that if the evidence was wholly immaterial, if the attention of the court was not subsequently called to it and no motion made to strike it out, no question is raised.</p> <p>%. Same—Expert testimony—Competency.</p> <p>Plaintiff was permitted to give the testimony of two expert microscopists in regard to the appearance of the note and to its various lines and letters. Defendant objected that the evidence was not competent as bearing upon the question of its genuineness. Held, that as defendant had previously called experts who testified that the signature was a forgery, the testimony was competent in that it tended to weaken and nullify their conclusion.</p> <p>4. Same—Expert—Opinion.</p> <p>The reasons which form the basis of an opinion formed by an expert called to testify as to handwriting are admissible.</p> <p>5. Same—Comparison of handwriting.</p> <p>Where the genuineness of a signature to a note is at issue, a comparison of genuine signatures of the alleged maker and the signature to the note is competent.</p> <p>6. Same—Experts—Qualifications.</p> <p>Every question arising, which involves a point in science or art, which includes handwriting, persons skilled therein are competent to express an opinion, and such opinion is deemed a relevant fact; and it is for the court to determine whether the skill of the person offered is sufficient to be deemed an expert, and such determination is the subject of review.</p>

<p>1. Jury—When determination final.</p> <p>Where a fair question of fact is presented to the jury, and their deter-nation is supported by the facts and circumstances arising from the evidence, their finding should not be disturbed.</p> <p>2. Railroads—Duty to maintain highway.</p> <p>Where a railroad company locates its road upon a public highway, it is legally bound, not only to construct the same in such manner as to render it reasonably safe for travelers, but is also obligated to maintain it in that condition.</p>

<p>1. Executors and administrators—What items should not be allowed TO.</p> <p>An executor who has created liahilities against the estate for professional services and otherwise should not he allowed such items against the estate without proof that they have been paid, that they were reasonable in amount, or necessary for the protection of the estate.</p> <p>3. Same—What claims take precedence op legacies.</p> <p>It is a well recognized principle of law that debts and the proper expense of administration are first to be paid, and in that particular take precedence of legacies, and an executor who reverses the order of payment does so at his risk.</p> <p>3. Same—When not chargeable with costs.</p> <p>An executor who has not acted in bad faith, but rather failed to understand his duties and obligations, should not be charged personally with costs.</p>

<p>Appeal by plaintiff from an order vacating an order of injunction.</p>

<p>Wills—Construction.</p> <p>A testator by will bequeathed legacies to various nephews and nieces, naming them, and also legacies to the children of a deceased niece. By the residuary clause, the rest of the estate he devised as follows: “I do give and devise and bequeath unto my nephews and nieces hereinbefore named s * * in such proportionate shares as the legacies hereinbefore given and bequeathed to them re pectively, shall bear to the other.” Held, that the bequest “ unto my nephews and nieces hereinbefore named,” did not include a grand-niece and two grand-nephews, named in a former clause, and therein described as “the three children of my deceased niece,” etc.</p>

<p>1. Action—Eon labor and material—When verdict not disturbed.</p> <p>Where it appeared at the trial that the plaintiff had been employed to-make repairs and alterations to the engine and boiler of defendant’s yacht, by one Charles Pugsley, who was the defendant’s “engineer” on the yacht, and the work had been actually done as alleged by plaintiff, but the defendant denied that he had directly or indirectly employed the plaintiff, and the issue thus raised was submitted to the jury, without objection, who found for the plaintiff; the court will not disturb the verdict on that question.</p> <p>2. Pleading—Answer—Amendment—When not allowed at trial.</p> <p>At the commencement of the trial the defendant moved for leave to amend his answer by setting up as defense that an action for the same cause had been instituted by the plaintiff in a district court of the United States. The motion was denied and defendant excepted. Held, that this motion was addressed to the discretion of the court. The defense should have been set up by supplemental answer, its object being to introduce a new defense; and no error was committed in denying the motion at the trial.</p>

<p>Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order denying a motion made upon the minutes, ‘1 to set aside the verdict and grant a new trial upon the exceptions taken on the trial, because the verdict is for excessive damages and is contrary to the evidence and is contrary to law.”</p>

<p>Abatement and revival—When action not revived.</p> <p>A motion to revive a proceeding to vacate an assessment in the name of the administratrix of a deceased petitioner made upwards of eleven years after the death of the petitioner, should be denied.</p>

<p>Abatement and revival—When action not revived.</p> <p>A motion to revive a proceeding to vacate an assessment for a sewer, in the name of the executor of a deceased petitioner, made more than ten years after the death of the petitioner, no excuse being given for the delay, should be denied.</p>

<p>Negligence—Practice—When motion to dismiss complaint properly denied.</p> <p>In an action for negligence where plaintiff’s evidence makes a prima facie case against defendant, and the evidence of the latter does no more than raise a conflict, his motions to dismiss the complaint, made at the close of plaintiff’s case, and at the close of the evidence on both sides, are properly denied.</p>

<p>1. Pleadings—Pitoov—Payment.</p> <p>Where, in an action by a broker on a contract for the sale of four houses, the answer puts in issue every material allegation of the complaint, it is competent to show that even if defendant did make a payment, as alleged by plaintiff, it was hot on, account of the special contract sued on, but for another and entirely different purpose.</p> <p>2. Bbokebs—Commissions—Indivisible contbaot.</p> <p>Where a broker is entitled to one-third of the excess above a certain amount realized on the sale of four houses, he is not entitled to a proportionate amount on the sale of only one of the four houses.</p> <p>3. Appeal—Ebbob—When haemless.</p> <p>The ruling of the court holding the defendant privileged from answering on cross-examination, the question whether a certain question put by his counsel to plaintiff had been put by his instruction, if error at all, is harmless.</p>

<p>Motion for reargument. For opinion on appeal see 14 N. Y. State Rep., 694.</p>

Re-ARGUMENT. The defendant issued to Joseph L. Tobias a policy of insurance upon the steamer Falcon for the sum of $1,000, loss payable to one Andrew Simons. Tobias was, at the time of effecting this insurance, a stockholder in the Merchants’ Steamship Company, which then owned the steamers Sea G-uIL and Falcon.

<p>1. Judgments—Power of court to annul.</p> <p>A court has power to annul or vacate its judgment, though more than a year has passed since the entry of the judgment.</p> <p>2. Same—When will be amended.</p> <p>In an action to foreclose a mortgage by a railway company, the city of New York was made a party defendant, and it was alleged in the complaint that this was done, “ because the plaintiff was informed that the city might have or claim an interest in the properly covered and conveyed in the two mortgages mentioned and in the relief demanded in the complaint. No claim or demand is made against the city.” A judgment was obtained for plaintiff -which recited that all the allegations of the complaint were true, and that the railway company owned certain described land, premises and grounds, for the purpose of erecting and operating a railway thereon. The judgment then proceeded to lay out the route of the railway, and recited that the railway company had commenced to build the railroad, as require I by the statute creating the company, and provided that “ said corporation defendants, their officers and servants, will respect the aforesaid orders, judgments and decrees herein." Held, that the judgment affected the city defendants in a manner unauthorized by the complaint, and would be amended on motion of the city. That the court had no jurisdiction to make the judgment that was made, and this want of jurisdiction may be set up collaterally or otherwise.</p>

<p>Costs—Security for—Deposit—Power of court to order additional-UNDERTAKING-CODE ClV. PRO., § 8276.</p> <p>Under Code Civil Procedure, section 8276, where plaintiff has been ordered to file security for costs, but in lieu thereof is allowed to deposit a sum of money to be applied on the costs if awarded, and no undertaking is . . in fact filed, the court has no power to order an additional undertaking, and it is immaterial that there have been intermediate orders for undertakings.</p>

<p>1. Attachment—Sufficiency of affidavit.</p> <p>Where in an affidavit for attachment the facts relied upon are stated om information and belief, the source of the informrtion must he disclosed.</p> <p>2. Same—Motion to vacate—Original papers only can be relied on.</p> <p>On a motion to vacate an attachment, plaintiff cannot prove by other affidavits that the facts authorizing its issuance really existed, but he must rely on the original papers upon which the attachment was granted.</p>

<p>Pleading—Complaint—Demubber—When does not lie.</p> <p>In an action brought to obtain equitable relief, enjoining forever the commission of a trespass, begun by one of the defendants in the proceedings taken by it- in the construction, of its road upon his real estate and continued by the other, who subsequently leased and operated the road, Held, that the uniting the causes of action constituted no ground for demurrer; also that the fact that the time for the termination of the lease is, by the terms thereof, remote, does not make any material difference, a perpetual injunction being sought for.</p>

<p>Appeal from interlocutory judgment entered upon decision of the special term sustaining demurrer to the complaint.</p>

<p>Appeal from special term judgment dismissing the complaint on the merits in a judgment creditors’ suit to set aside a general assignment.</p>

<p>Appeal from interlocutory judgment entered upon decision of the special term sustaining demurrer to the complaint.</p>

<p>Appeal from a judgment of special term entered upon the report of a referee.</p>

<p>Appeal from an order made at special term • on the motion of defendant, suspending the operation of the judgment heretofore entered in this action, so far as the same contains an injunction against the defendant, pending an appeal therefrom by the defendant to the court of appeals. This same order was before this court at the December, 1888, term, and an order was then made by this court, reversing the special term order, so far as it suspended the operation of the judgment or relieved the defendant from the duty of immediate obedience to the injunction contained in it, on the ground that the court had no power to make the same. See 21 N. Y. State Rep., 455; From the last-mentioned order defendant appealed to the court of appeals, where it was reversed, and the cause remitted to the general term for the exercise of its discretion. 23 N. Y. State Rep., 111.</p>

<p>Appeal from special term order denying defendant’s motion to set aside de* fault and inquest taken.</p>