author: O’Brien, J.

text:
    In the Matter of the Probate of the Will of Charles A. Limberg, Deceased. Lucille Limberg et al., by Their General Guardian, Paul Kallmeyer, Appellants; William C. Limberg, Respondent.

      Argued January 4, 1938;
    decided March 8, 1938.

      Matthew J. Shevlin and Franklin F. Bussell for appellants.
    It was the duty of the proponent of the paper offered for probate as the last will of the decedent to satisfy the court and jury that such will was the free and deliberate act of a rational, self-poised and clearly disposing mind. (Marx v. McGlynn, 88 N. Y. 357; Matter of Putnam, 257 N. Y. 140; Matter of Anna, 248 N. Y. 421; Matter of Budlong, 126 N. Y. 423; Matter of Smith, 95 N. Y. 516; Rollwagen v. Rollwagen, 63 N. Y. 504; Delafield v. Parish, 25 N. Y. 9; Waterman v. Whitney, 11 N. Y. 157.) The evidence adduced by the contestants was sufficient to warrant the submission of the question of undue influence and fraud to the jury. (Rollwagen v. Rollwagen, 63 N. Y. 504; Delafield v. Parish, 25 N. Y. 9; Matter of Anna, 248 N. Y. 421; Matter of Matulewicz,
      243 App. Div. 204; Eckert v. Page, 161 App. Div. 154; McLaughlin v. McDevitt, 63 N. Y. 213; Matter of Staiger, 243 N. Y. 468; Matter of Putnam, 257 N. Y. 140; Hagan v. Sone, 174 N. Y. 317; Marx v. McGlynn, 88 N. Y. 357; Matter of Hack, 74 Misc. Rep. 16.)

      Frederick W. Bitter and Henry Kock for respondent.
    The contestants offered no competent testimony showing or tending to show that either undue influence or fraud was practiced upon the decedent in connection with his last will. Accordingly, the Appellate Division properly reversed, since it was error for the Surrogate to have submitted the case to the jury and the jury’s determination finds no support in the testimony. (Matter of Kindberg, 207 N. Y. 220; Matter of Dowdle, 224 App. Div. 450; Matter of Tymeson, 114 Misc. Rep. 644; Smith v. Keller, 205 N. Y. 39; Gick v. Stumpf, 204 N. Y. 413; Marx v. McGlynn, 88 N. Y. 357; Cudney v. Cudney, 68 N. Y. 148; Matter of Woods, 189 App. Div. 324; Matter of Dotterweich, 210 App. Div. 131; Matter of Dowdle, 224 App. Div. 450; Eckert v. Page, 161 App. Div. 154.) The testimony clearly shows that the testator had a constant and abiding scheme for the distribution of his property which should not have been altered by passion and prejudice on the part of the jury. (Ridden v. Thrall, 125 N. Y. 572; Matter of Nelson, 141 N. Y. 152; Matter of Dunn, 184 App. Div. 386.)
   O’Brien, J.

The respondent, William C. Limberg, named as executor in a paper purporting to be the will of his father, Charles A. Limberg, propounded that instrument for probate. The proceeding was contested by Lucille and Gloria Limberg, infant daughters of Alfred Limberg, a deceased son of the testator. The issues of fraud and undue influence were submitted to a jury, which found for the contestants, and upon this verdict the decree of the surrogate denied probate. The Appellate Division, deciding that the proofs were insufficient to warrant submission of these issues to the jury, reversed the decree on the law and set aside the findings of the jury.

We think that the testimony of contestants’ witnesses, credited as it has been, is sufficient as matter of law to support the findings of undue influence and fraud. The testator’s wife died in April, 1934, and two weeks thereafter proponent and his wife Sophie, together with their daughters Helen and Jeanne, came to reside with him. The will before us bears the date May 14, 1936. Previously, in April, 1935, a will identical in terms with the will of May 14, 1936, was prepared by an attorney, who was first approached for that purpose by a brother-in-law of proponent’s wife, Sophie, who admitted the existence of ill-feeling between herself and Hermine, the mother of the contestants. When the first will was drawn in April, 1935, testator was seventy years of age and was ill and complaining of his health. Sophie, the wife of proponent, kept a copy but never disclosed that fact to her husband or others. That will, as well as the will before us, provided:

Third: I have in mind Hermine Limberg, the wife of my departed son Alfred Limberg, Lucille Limberg and Gloria Limberg, daughters of my departed son Alfred Limberg, but I do not make any provisions for them. Fourth: All the rest, residue and remainder of my estate, of whatsoever nature and wheresoever situated, of which I may die seized or possessed or to which I may be entitled at the time of my decease, I hereby give, devise and bequeath to my beloved son William C. Limberg. In the event my son William C. Limberg should predecease me then in that event, I give, devisa and bequeath my entire residuary estate as above mentioned to Sophie Limberg, wife of my son William C. Limberg, Helen Limberg and Jeanne Limberg, daughters of my son William C. Limberg, share and share alike.”

Prior to the execution of the first will and intermediate the- execution of these two wills many events occurred and declarations were made by the testator which are of vital importance in determining the question whether the facts as found by the jury are sufficient in law to constitute undue influence and fraud. While the oral and written declarations of the testator may not be received as evidence of the truth of facts stated therein, they are admissible to indicate the state of mind of the testator at the time they were made. (Richardson on the Law of Evidence [4th ed.], p. 230; 3 Wigmore on Evidence [2d ed.], pp. 726, 727; Gick v. Stumpf, 204 N. Y. 413, 417.) This evidence appears: In July, 1934, the testator told his niece, Margaret Lohmeier, that Sophie and William were constantly hounding him about making a will and that he had no peace. On Christmas Eve, 1934, he again told his niece: “ I cannot stand it any more; I am going to put them out. She [Sophie] is a red devil.” In December, 1935, he left home and boarded with a Mrs. Kayser at Lake Huntington until February, 1936. He told Mrs. Kayser that he intended to tear up his will of April, 1935; that William and Sophie would have to leave his house; that they did not give him any rest; that Sophie was a bad woman; that her husband William was just like a dish rag and did whatever Sophie said. He described Alfred’s widow, Hermine, as a lovely woman and expressed an intention so take care of the two children, Lucille and Gloria. Also in December, 1935, he told an employee of Mrs. Kayser that for peace sake he had made a will but would destroy it, and I got to change that will because them children of my oldest son, they are as much entitled to their share as my son is,” and “ I got to provide for them children, otherwise I won’t have no rest in the grave.” In January, 1936, the testator, then at Lake Huntington, wrote to the mother of the contestants: “I no longer feel well at home, for I can no longer live together with those two, for I have a quarrel with them every day. When I come home I will sell the house, so I can part from them.” During the same month he wrote to his niece: Why should I be home, and aggravate myself every day, and where no one talks to me? * * * When I come home then I will tell those two something.”

When the will of May 14, 1936, was executed testator was seventy-one years of age and suffering from cancer and cirrhosis of the liver. Next day he died. The day before the execution of this will testator stated that he intended to make a new will. The new will was copied by a neighbor at Sophie’s request from the duplicate of the former will which Sophie had in her possession and which she supplied. It was for the jury to say whether the acts of Sophie were such as to overcome testator’s independent volition so as to induce him to do what he otherwise would not have done. (Matter of Anna, 248 N. Y. 421, 427, 428.)

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division, payable out of the estate.

Crane, Ch. J., Lehman, Loughran, Finch and Rippey, JJ., concur; Hubbs, J., taking no part.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of Mary T. Mowen against Chase National Bank et al., Respondents. State Industrial Board, Appellant.
    Argued January 5, 1938;
    decided March 8, 1938.

      John J. Bennett, Jr., Attorney-General {Leon Freedman and Henry Epstein of counsel), for appellant.
    The accident sustained by the claimant arose out of and in the course of her employment. (Poupart v. Myers, 242 App. Div. 720; Hanna v. Pierson Co., 194 App. Div. 944; Matter of Underhill v. Keener, 233 App. Div. 779; 258 N. Y. 543; Appert v. Kings Park State Hospital, 240 App. Div. 795; Matter of Giliotti v. Hoffman Catering Co., 246 N. Y. 279; Rhodes v. Hoffman Catering Co., 230 App. Div. 796.)

      William B. Davis and E. C. Sherwood for respondents.
    The claimant’s accidental injury occurred while she was engaged solely in her own affairs, and arose out of her activities in such affairs, and does not come within the provisions of the Workmen’s Compensation Law (Cons. Laws, ch. 67). Lauterbach v. Jarett, 189 App. Div. 303; Kane v. Barbe, 210 App. Div. 558; Matter of Pisko v. Mintz, 262 N. Y. 176; Finnegan v. Biehn, 250 App. Div. 791; Matter of Hollinger v. Fure, 241 App. Div. 644; 264 N. Y. 678.)
   O’Brien, J.

Claimant and her husband occupied the upper floor of a two-family house owned by the Chase National Bank. As compensation for services to the owner she was allowed ten dollars per month on her rent. She testified that she was the caretaker, that she took care of the furnace and the stairs and that she always answered the door bell when it rang. Her injury occurred when, in proceeding to answer the door bell, she fell down the stairs leading from her apartment to the outer door which was the entrance to her apartment. Who the caller was does not appear. There is no evidence that, whoever he or she may be, the call had any relation to claimant’s personal affairs. It was part of her duty, whenever the bell rang, to answer it. For all she could know the caller may have come upon some errand in connection with claimant’s duties as caretaker. An attempted inquiry by her, at least to the extent of giving response to the signal, cannot be included exclusively within her personal affairs. Since the purpose of the visit of the unknown person who rang the bell is not shown to relate to claimant’s personal affairs, and since the injury occurred during the hours of employment and upon the premises of the employer (Matter of Norris v. N. Y. Central R. R. Co., 246 N. Y. 307, 313), the finding by the State Industrial Board that at the time claimant sustained her accidental injuries she “ was performing her regular duties as caretaker and janitor, in answering the.door bell, and was acting in the best interest of her employer ” cannot be branded as wholly arbitrary and without any basis in fact for such inference.

: The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated, with costs.in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Loughran and Rippey, JJ., concur; Hubbs and Finch, JJ., taking no part.

Ordered accordingly.


author: Crane, Ch. J.

text:
    Sundail Construction Company, Inc., Appellant, v. Liberty Bank of Buffalo, Respondent.
    Argued January 14, 1938;
    decided March 8, 1938.

      Hampton H. Halsey for appellant.
    When defendant paid the check it did not pay its obligation to plaintiff, and it ever since has had, and now has, in its possession, the amount of money represented by this check, subject to the order of the plaintiff. (Crawford v. West Side Bank, 100 N. Y. 50; Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74; Anglo-South American Bank v. National City Bank, 146 N. Y. Supp. 457.) The alteration made in the name of the payee of the check was a material alteration. (Cons. Laws, ch. 38, § 206; Cohen v. Lincoln Savings Bank, 275 N. Y. 399.)

      Mark N. Turner and Perry E. Wurst, Jr., for respondent.
    Upon certification at the request of the holder, the plaintiff, as the drawer of the check, was discharged, and the drawee bank became directly hable to the holder. (First Nat. Bank v. Leach, 52 N. Y. 350; Gallo v. Brooklyn Sav. Bank, 199 N. Y. 222; Lyons v. Union Exchange Nat. Bank, 150 App. Div. 493; Davenport v. Palmer, 152 App. Div. 761; Carnegie Trust Co. v. First Nat. Bank, 213 N. Y. 301; Cullinan v. Union Surety & Guaranty Co., 79 App. Div. 409; Anglo-South American Bank v. National City Bank, 161 App. Div. 268; 217 N. Y. 726; Lynch v. New Jersey First Nat. Bank, 107 N. Y. 179.) The alleged alteration was, under the circumstances, an immaterial one, as the intended payee received the fuh benefit of the proceeds of the check. (Hartford v. Greenwich Bank, 157 App. Div. 448; 215 N. Y. 726; Holub-Dusha v. Germania Bank, 164 App. Div. 279; Birmingham Trust & Savings Co. v. Whitney, 95 App. Div. 280; 183 N. Y. 522; Elliot v. Blair, 47 Ill. 342; Arnold v. Jones, 2 R. I. 345; Horst v. Wagner, 43 Iowa, 373; Skelton v. Filman, 20 S. W. Rep. 71.)
   Crane, Ch. J.

This case was presented to the court upon an agreed statement of facts which in substance is as follows:

On November 29, 1933, the plaintiff drew its check, dated November 29, 1933, for the sum of $1,100, payable to the order of C. D. Blair. The check was drawn upon its account in the Liberty Bank of Buffalo, the defendant. The check was delivered to one Frank A. Kreppel, with instructions to deliver it to the payee, C. D. Blair. The check was made to “ C. D. Blair ” upon an arrangement with him whereby he was to use the check as a deposit upon a contract to be obtained by him for the benefit of the plaintiff, and, in the event the contract was not obtained, Blair was to return the check to the plaintiff. The contract upon which the check was to be used as a deposit, and upon which said Blair was to receive commissions, was never obtained. Upon receipt of the check Kreppel caused it to be certified. Then he altered the check in a material part. He forged the words “ & Co. Inc.,” so that the payee of the check, instead of being C. D. Blair, became C. D. Blair & Co., Inc. The check in this condition he presented to the Manufacturers and Traders Trust Company of Buffalo, New York. It was presented through the clearing house to the defendant and paid.

The defendant made no inquiry of the plaintiff relative to the check or the forged name of the payee. Neither did C. D. Blair authorize Kreppel to make the change. The plaintiff never consented to the change in the name of the payee or that his bank, the defendant, pay any one other than the original payee, C. D. Blair,” or order. The proceeds of the check were used by C. D. Blair & Co., Inc., to pay its own obligations, and neither C. D. Blair nor the plaintiff obtained any part thereof. Blair and Kreppel were officers of the C. D. Blair & Co., Inc., and it is stated that Blair, over, the telephone, directed Kreppel to deposit the check in the account of the corporation with the Manufacturers and Traders Trust Company and immediately to pay the obligations of the corporation. Kreppel, however, had no authority whatever to alter the check in any particular. These are the facts from which we deduce the following conclusions:

When C. D. Blair received this check payable to his order it was under a special promise and agreement that he would use it in connection with procuring a contract for the drawer. If he had indorsed the check or authorized its deposit in his account the drawer could not complain because his bank paid it. Although Blair broke his agreement and misappropriated the check the drawer would have no remedy against his bank, as the check had been paid in due course of banking. The drawer, however, had the right to determine to whom the check should be paid and to whom its bank should give the money. It designated C. D. Blair, and the bank was unauthorized to pay anybody except Blair, his account, or the person holding the check by proper indorsement. Like other choses in action, the check could have been delivered to a third party without indorsement, but the third party to whom it was given would take it subject to all the equities, and could not collect on it or compel the drawer to pay, because the assignor, C. D. Blair, could not do so. The check had been misappropriated. Neither would the bank be justified in paying a stranger to the instrument without proper indorsement. C. D. Blair never indorsed the instrument, and if he had sought by mere delivery to pass the check over to his corporation, the drawer at least was protected to the extent that the corporation could not collect on the check either from him or his bank. The corporation, as a mere holder of the misappropriated check unindorsed, had no claim it could enforce.

When Kreppel changed the name of the payee from C. D. Blair ” to “ C. D. Blair & Co., Inc.,” it was as much a forgery and alteration as if he had scratched out the name altogether and had substituted that of “ Jones.” We would see at once that such alteration would' not justify the bank in paying the check. Such a mutilation of a check or a negotiable instrument could not be excused upon the plea that the original payee intended to indorse it to Jones ” anyhow. The payee’s intention has nothing to do with such a matter, as a drawer is entitled to all the protection which the law affords when he passes his signature into circulation.

The Negotiable Instruments Law (Cons. Laws, ch. 38), section 205, provides: Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party who has himself made, authorized or assented to the alteration and subsequent indorsers.”

And, by section 206, an alteration is material when any change or addition is made which alters the effect of the instrument in any respect. The change in the name of the payee is a material alteration, rendering the check immediately void. When the payee’s name was changed from C. D. Blair to C. D. Blair & Co., Inc., it ceased to be a check or obligation of the drawer, the plaintiff. The defendant bank, therefore, was not justified in paying it.

The fact that this check was certified in no way changes these results. The certification simply means that the bank holds the money to pay the check and is liable to pay the check to the proper party. It in no way affects the law of forgery or of material change in the instrument or the relationships of the parties, except that the bank, by the certification, makes the amount of the check good to the rightful payee. The relation existing between a bank and its depositor is that of debtor and creditor, and the bank holds the fund, subject to be paid out upon the direction of the creditor according to the terms and conditions imposed by him. The bank’s protection in the payment of checks consists in the fact that it has followed strictly the depositor’s directions in disbursing his funds.

Where a depositor has imposed the condition that his check shall not be paid without it bears his indorsement, the depository, if it pays it to a holder without such indorsement, runs the risk of the transaction, and takes the burden of showing that such holder has acquired in some way the lawful title to receive the funds. It may successfully defend such a payment if it- can show .that it made it to a person who, as against the drawer, was legally entitled to receive it, for, in that event, the drawer would suffer no damage thereby.” (Lynch v. First Nat. Bank, 107 N. Y. 179, 184.)

The defendant in this case is unable to show that C. D. Blair & Co., Inc., was legally entitled to the payment of this check. (See, also, Meuer v. Phenix Nat. Bank, 94 App. Div. 331; affd., without opinion, 183 N. Y. 511; Goshen Nat. Bank v. Bingham, 118 N. Y. 349, 355; 3 Daniel on Negotiable Instruments [7th ed.], § 1798.) These authorities touch merely the question of the transfer of a certified check without indorsement, to one having legal title as holder, against whom there are no equities. We have more in this case, as I have above stated, the payee’s name having been forged. This rendered the instrument void.

For the reasons here stated, the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

O’Brien, Loughran, Finch and Rippey, JJ., concur; Lehman and Hubbs, JJ., taking no part.

Judgment accordingly.


text:
    In the Matter of Miriam F. Becker, Respondent, against Mark Eisner et al., Constituting the Board of Higher Education of the City of New York, Appellants.

      Argued January 11, 1938;
    decided March 8, 1938.

      William C. Chanler, Corporation Counsel (Paxton Blair and Arthur Bainbridge Hoff of counsel), for appellants.
    The operation of the cross-reference feature of the statute assailed (L. 1935, ch. 873) creates precisely the difficulties which the constitutional prohibition was designed to avoid; and as future laws are also made applicable by cross-reference, the evils are intensified. (New York Const, art. III, § 17; People ex rel. Commissioners v. Banks, 67 N. Y. 568; Darweger v. Staats, 267 N. Y. 290; People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593; People ex rel. Everson v. Lorillard, 135 N. Y. 285; Curtin v. Barton, 139 N. Y. 505; People ex rel. Winfield v. Bruning, 89 Hun, 124; Campbell v. Board of Pharmacy, 45 N. J. L. 241; 47 N. J. L. 347; State ex rel. Christie v. Bayonne, 48 N. J. L. 407; Titusville Iron Works v. Keystone Oil Co., 122 Penn. St. 627; People ex rel. Drake v. Mahaney, 13 Mich. 481; State v. Fargo Bottling Works, 19 N. D. 396; Casner v. Meriwether, 152 Okla. 246.) Since chapter 873 of Laws of 1935 prohibits examinations, it violates the civil service article of the Constitution. (N. Y. Const. art. V, § 6; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Kraus v. Singstad, 275 N. Y. 302; Palmer v. Board of

      Education, 276 N. Y. 222; Matter of Carow v. Board of Education, 272 N. Y. 341; Matter of Sandford v. Finegan, 276 N. Y. 70.)

      Osmond K. Fraenkel and Herman E. Cooper for respondent.
    Section 1143 of the Education Law (Cons. Laws, ch. 16), as amended by chapter 873 of the Laws of 1935, does not violate section 17 of article 3 of the New York State Constitution. (People ex rel. Everson v. Lorillard, 135 N. Y. 285; People ex rel. Commissioners v. Banks, 67 N. Y. 568; People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593; Baldwin Lumber Co. v. Moskowitz, 15 N. J. Misc. Rep. 438; Bracely v. Noble, 201 Ala. 74; Lyman v. Ramey, 195 Ky. 223; State v. Gallatin County High School District, 102 Mont. 356; Wells v. City of Buffalo, 14 Hun, 438; 80 N. Y. 253; Matter of Union Ferry Co., 98 N. Y. 139; Weinckie v. N. Y. C. & H. R. R. R. Co., 61 Hun, 619; 133 N. Y. 656; Curtin v. Barton, 139 N. Y. 505; Matter of Buffalo Traction Co., 25 App. Div. 447; 155 N. Y. 700; Choate v. Buffalo, 39 App. Div. 379; 167 N. Y. 597.) The 1935 amendment to section 1143 does not violate section 6 of article V of the New York State Constitution. (Matter of Sandford v. Finegan, 276 N. Y. 70.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for State of New York.
    Chapter 873 of the Laws of 1935 is valid. (People ex rel. Henderson v. Supervisors, 147 N. Y. 1; Matter of McAneny v. Bd. of Estimate, 232 N. Y. 377; Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194; People ex rel. New York Electric Lines Co. v. Squire, 107 N. Y. 593; People ex rel. Everson v. Lorillard, 135 N. Y. 85; Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271; Matter of Sandford v. Finegan, 276 N. Y. 70.)

      C. Dickerman Williams for Faculty of Hunter College, amicus curios.

    Chapter 873 of the Laws of 1935 is constitutional. (People ex rel. Everson v. Lorillard, 135 N. Y. 285; Choate v. City of Buffalo, 39 App. Div. 379; 167 N. Y. 597; People ex rel. Commissioners v. Banks, 67 N. Y. 568; Matter of Union Ferry Co., 98 N. Y. 139; Curtin v. Barton, 139 N. Y. 505; Matter of Buffalo Traction Co., 25 App. Div. 447; 155 N. Y. 700; People ex rel. N. Y. Elec. Lines Co. v. Squire, 107 N. Y. 593; Swikehard v. Michels, 81 Hun, 325; 144 N. Y. 684; Weinckie v. N. Y. C. & H. R. R. R. Co., 61 Hun, 619; 133 N. Y. 656.) The civil service article of the Constitution is irrelevant to the present controversy. (Schieffelin v. Goldsmith, 253 N. Y. 243; People v. Mancuso, 255 N. Y. 463; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Friedman v. Finegan, 268 N. Y. 93.)
   Crane, Ch. J.

The petitioner held the position of tutor in Hunter College, teaching mathematics. She was first appointed in June, 1933, and reappointed thereafter in the years 1934, 1935 and 1936. She was not reappointed in 1937, but instead, on June 2, 1937, the board appointed one Annita Tuller in her place.

The petitioner was employed by the year — a yearly contract — and held no tenure of office. Unless reappointed she was out. Claiming that the Legislature in 1935 changed her situation while thus employed to a position from which she could not be removed without cause, proof of wrongdoing or incompetence, she applied to the courts, and has been reinstated.

By what process did the Legislature work this result? The answer requires an examination of the Education Law (Cons. Laws, ch. 16) and the amendments of 1935. Article 33-A relates to boards of education in the several cities of the State. Section 872 provides that teachers shall be appointed by the Board of Education upon the recommendation of the Superintendent of Schools for a probationary period of not less than one year and not to exceed three years, such period to be fixed by the Board of Education in its discretion. Service may be discontinued any time during probation. In New York city competitive examinations are required for teaching licenses or to have the applicant’s name placed on an eligible list for appointment in the schools (§ 871). Probationers are taken from these lists. The necessity and practicability of such examinations in order to meet the constitutional requirements were discussed and decided in Matter of Carow v. Bd. of Education (272 N. Y. 341). In these matters the Constitution, not the Legislature, is controlling. (N. Y. Const. art. V, § 6.)

In 1935 the Legislature (L. 1935, ch. 819) amended subdivision 3 of section 872 so as to read: At the expiration of the probationary term of a person appointed for such term, the superintendent of schools, * * * shall make a written report to the board of education recommending for permanent appointment those persons who have been found competent, efficient and satisfactory ” - Thereafter such appointees hold their positions during good behavior. Note that all probationers are not continued — only those found efficient and recommended.

The same Legislature (L. 1935, ch. 257) added a new subdivision to this section, subdivision 3-a, which reads:

“ * * * At the expiration of the probationary term of any person or persons appointed for such term, the superintendent of schools, * * * shall make a written report to the board of education recommending for permanent appointment those persons who have been found satisfactory and such board of education shall immediately thereafter issue to such persons permanent certificates of appointment. Such persons and all others employed in the teaching * * * service of the schools of such city, who have served the full probationary period, or have rendered satisfactorily an equivalent period of service prior to the time this act goes into effect shall receive permanent certificates to teach,” etc.

These subdivisions of section 872 of article 33-A of the Education Law did not apply to boards of higher education (Art. 44-A) until an attempt was made by Laws of 1935, chapter 873, to make them applicable.

If we assume, as have the petitioner and the court below, that section 872, subdivision 3-a, now covers the teachers in Hunter College, the petitioner herself falls short of meeting its conditions. She was appointed in June, 1933, for one year, not for a probationary period, for no such period had been fixed or determined by the board. By March 27, 1935, when chapter 257 of the Laws of 1935, adding subdivision 3-a to section' 872, took effect, the petitioner had served by reappointment less than two years. Consequently, subdivision 3-a does not touch her. First. She was not recommended for permanent appointment after a probationary period. Second. Prior to the taking effect of the section — March 27, 1935 — she had not served a full probationary period or rendered satisfactorily an equivalent period of service.” The serving of a full probationary period prior to the taking effect of the statute is the meaning which must be given to the words of the section or else the first condition is meaningless. There would be no need to recommend a permanent appointment of “ those persons * * * found satisfactory ” at the end of the probationary period if the mere lapse of the period of time was sufficient. The section provides for those recommended and “ all others ” who have served the probationary period or its equivalent before March 27, 1935. The words can be given no other meaning. The petitioner does not come within the statute. She was never recommended for permanent appointment and served but a year and a half before the statute took effect. She admits that three years must be taken as the prpbationary period.

While calling attention to this construction we do not desire to place our decision merely upon this ground, but approach the larger question of the constitutionality of chapter 873 of the Laws of 1935, amending section 1143 of the Education Law, in attempting to make the other provisions of that law applicable to the Board of Higher Education of New York City.

The Constitution (Art. Ill, § 17) reads: “ Existing laws not applicable by reference. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any existing law, or part thereof, shall be applicable, except by inserting it in such act.”

We are of the opinion that section 1143, as amended, violates this provision of the Constitution, and is, therefore, void.

The latter part of the section is the part under review, and is as follows: “ All laws applicable or which may be applicable to the board of education of a city having a population of one million or more and which deal, or may deal, with probationary appointments, permanent appointments, suspensions, dismissals, reinstatements, and the placement and reappointment of persons employed in the professional staff, administrative staff and all other employees including those whose positions have been abolished or consolidated or may be abolished or consolidated are hereby made applicable to the board of higher education and its included boards of trustees; where it is provided that action shall be taken by the board of education upon the recommendation of the superintendent of schools and/or the board of superintendents, such action shall be taken by the board of higher education or the appropriate board of trustees of the educational unit involved upon the recommendation of the president of the college or educational unit involved. Examinations and /or licenses shall be required only as prescribed for employees of said board of higher education when this act becomes effective. Nothing herein shall be so construed as to apply to a person not regularly appointed to serve on an annual salary in the regular day session of the college or educational unit involved.”

This reference to “ all laws ” and to all which hereafter may apply to the board of education, not the higher board, is entirely too vague, and to permit it to pass as proper legislation would in effect nullify the Constitution. Such decisions as People ex rel. Board of Commissioners of Washington Park v. Banks (67 N. Y. 568); People ex rel. New York Electric Lines Co. v. Squire (107 N. Y. 593); Darweger v. Staats (267 N. Y. 290, 308) have explained the purpose of section 17 of article III of the Constitution and the evils and confusion it was sought to prevent. All those evils now crowd forward in this legislative enactment. For this case the petitioner seeks only reference to article 33-A of the Education Law, but the act is not so limited — all laws — what laws? Nobody knows and nobody can tell with any certainty, although we may guess that none will turn up except article 33-A as applicable to the Board of Education. There is the provision all laws applicable ” — too vague to be good. And that these constitutional warnings as to what may happen were not groundless, see what has been attempted to be legalized here. “ Examinations and/or licenses shall be required only as prescribed for employees of said board of higher education when this act becomes effective.” These are the words embodied in this lengthy section. Where do we look for the law prescribed ” for the examinations of employees of the Board of Higher Education? Nowhere, for there are no such laws, rules or regulations — or, at least, were not when this case came on for hearing. The Board of Higher Education has given no examination when employing its teachers and administrative staff. The board has been maintaining the standard of teaching in the colleges by declining to reappoint teachers who are found unsatisfactory. By this reference to “ examinations prescribed,” which means a written rule or law, at least some regulation duly adopted, we are asked to validate the absence of any such law. Such language is deceptive and illustrates the danger which flows from legislation by reference. In People ex rel. Everson v. Lorillard (135 N. Y. 285); Curtin v. Barton (139 N. Y. 505); People ex rel. Winfield v. Bruning (89 Hun, 124) the references were to procedure and jurisdictions definitely established.

We need not at this time undertake to say how far the Legislature may go in exempting all positions under the Board of Higher Education from competitive examinations. Until it is determined by the Legislature or some other body that such examinations are impracticable, the Constitution (Art. V, § 6) is to be enforced.

The power of the Legislature in this particular is discussed in Matter of Ottinger v. Civil Service Commission (240 N. Y. 435), which authority condemns as illegal this attempt to legislate into an exempt class all positions for which there has not been heretofore an examination.

The order should be reversed and the petition dismissed, without costs.

Lehman, O’Brien, Loughran, Finch and Rippey, JJ., concur; Httbbs, J., taking no part.

Order reversed, etc.


author: Finch, J.

text:
    The People of the State of New York, Respondent, v. Dr. Scholl’s Foot Comfort Shops, Inc., Appellant.

      Argued January 18, 1938;
    decided March 8, 1938.

      Samuel S. Allan for appellant.
    Legislation regulating the practice of podiatry was enacted solely as a means of protecting the public health, and, when practiced by a duly licensed podiatrist, the public health is adequately protected, this whether the podiatrist practices on his own behalf or on behalf of his corporate employer. (Liggett Co. v. Baldridge, 278 U. S. 105; Pratter v. Lascoff, 261 N. Y. 509; Matter of Dickson v. Flynn, 246 App. Div. 341; 273 N. Y. 72; Dvorine v. Castelberg Jewelry Corp., 185 Atl. Rep. 562; State v. Armstrong, 38 Ida. 493.) The conviction should not be sustained, as .defendant cannot be deemed to have practiced podiatry within the meaning of the Education Law (Cons. Laws, ch. 16). (Scadron's Sons, Inc., v. Susskind, 132 Misc. Rep. 406; Matter of Dickson v. Flynn, 246 App. Div. 341; Jaeckle v. Bamberger & Co., 119 N. J. Eq. 126; Dvorine v. Castelberg Jewelry Corp., 185 Atl. Rep. 562.) The acts of defendant’s salesmen or nurse do not constitute the practice of podiatry by defendant within the meaning of and in violation of the Education Law. (State v. Armstrong, 38 Ida. 493; State Board v. Uchin, 9 N. J. Misc. Rep. 966.)

      John J. Bennett, Jr., Attorney-General (Dorothy U. Smith and Henry Epstein of counsel), for respondent.
    The practice of podiatry by defendant was unlawful. (Cons. Laws, ch. 16, §§ 1402, 1412; Matter of Co-operative Law Co., 198 N. Y. 479; People v. Woodbury Dermatological Institute, 192 N. Y. 454; Mertz v. Mertz, 271 N. Y. 466.)
   Finch, J.

The undisputed facts are as follows: The appellant is a Delaware corporation, which operates a chain of stores selling at retail shoes for men, women and children. One of the stores is located in Manhattan. This store employs, in addition to the regular shoe salesmen, a duly licensed chiropodist and a registered nurse who gives vibratory foot massage treatments under the supervision and direction of the chiropodist, and assists him.

The defendant sells, in addition to shoes, accessories such as arch and ankle supports, pads and plasters. • In fitting shoes, its salesmen are trained to use a mechanical device known as a pedograph. This registers an imprint which reveals the ■ outer physical characteristics of the feet of the customer and, when read by the salesman, enables him to determine with greater accuracy the proper width, length and size of the shoe or arch support, if one is required. No charge is made for this service. The appellant states that this pedograph has been used by it for many years, and that it is used by a number of shoe stores throughout the country, and by hygiene and physical education departments in government institutions, hospitals, schools and colleges.

Two special investigators, employed by the State Department of Education, visited the premises of the defendant, ostensibly for the purpose of purchasing shoes, but in reality to obtain evidence for this suit. Upon entering, the salesman took a pedograph imprint of the feet of one of the investigators and in response to a question by this investigator, the salesman told her that the prints showed that she had a weak metatarsal, that her toes curved under, and that she needed arch supporters in order to receive the maximum comfort from her shoes. In further answer to a question by the investigator, requesting information concerning perspiring feet, she was told that this condition was traceable to weak feet, that her feet were in the third stage of weak feet,” and that she should take a course of treatments given by the licensed chiropodist, which treatments consisted of a chiropodic treatment and five vibratory massage treatments. The investigators left, but returned several days later and received from the podiatrist and the nurse the chiropodic and massage treatments previously suggested by the salesman. While treating one of the investigators, the chiropodist inquired whether the gentleman upstairs had checked on her shoes. The chiropodist also stated that he thought the investigator needed a pair of arches. The treatment of the chiropodist was followed by a vibratory massage treatment, given by the registered nurse under his supervision. Thereafter, the investigator was again waited on by the shoe salesman, who took another pedographic imprint of her feet and made substantially the same remarks as on her prior visit; he advised the wearing of arches at all times, as her feet were in the third stage of flat feet.” She again received the vibratory massage treatments, and on five subsequent visits she received these massages, paying five dollars for the series of treatments; but she did not purchase any shoes or arch supports, and did not pay for the pedographic imprints or for the suggestions and recommendations made by the salesman in reference to the kind of shoes she should purchase or the arches she should wear.

The following questions are presented for decision: Did the employment by the defendant of a duly licensed podiatrist, to render service to its customers who desired such service, constitute the practice of chiropody or podiatry in violation of the Education Law (Cons. Laws, ch. 16) of this State? Did the defendant unlawfully practice podiatry when a salesman, as an aid to selling its merchandise, took impressions of the customer’s feet by means of a pedograph, and at her request suggested the type of shoes she needed and remarked about the condition of her feet? Was it unlawful for the defendant to employ a nurse who gave massage treatments under the supervision and direction of a licensed podiatrist?

The Education Law at the time these acts occurred provided that “ No person not heretofore legally authorized to practice chiropody in the state of New York shall be permitted to engage in such practice unless he shall have been duly licensed so to do.” (Education Law, § 1402.) It further provided that Any person who * * * shall practice chiropody or any branch thereof * * * without conforming to the requirements of this article * * * shall be guilty of a misdemeanor.” (Education Law, § 1412.)

* At common law, any person was permitted, without let or hindrance, to apply palliative and mechanical treatment for deformities and functional disturbances of the feet. Scientific knowledge of the diseases or structure of the feet was not required for the practice of the calling until 1895, when the Legislature, as an aid to the protection of public health, made it mandatory upon persons to obtain certificates of merit, or licenses, from the Pedic Society, before permitting them to practice chiropody or podiatry. (L. 1895, ch. 864.) Starting in that year, the statute has been many times amended. At present it is to be found in article 53 of the Education Law and the licensing authority is now the Board of Regents. Neither in the original statute nor in any of the amendments thereto has any express restriction been placed upon the employment by corporations of duly licensed chiropodists. It is contended, however, that-the present statute, in providing that no person ” shall practice chiropody without a license, bars the employment of licensed chiropodists by a corporation; that a corporation is a person; that it cannot be licensed, and that, therefore, it cannot employ licensed practitioners.

This construction involves an unjustifiable reading into the statute of terms which it does not contain. The statute does not mention corporations, and on its face has no applicability to corporations. Its obvious purpose is to protect the public health by prohibiting any one from treating or diagnosing foot ailments unless qualified, and by requiring such qualification to be shown by the possession of a license. Neither the context nor the object of the statute accords with the interpretation which would prevent corporations from employing licensed chiropodists.

That this is the proper construction of the statute is confirmed when we examine the statutes regulating analogous professions. The Education Law provides that a corporation selling eyeglasses must have a duly qualified optometrist in charge of the counter at which such sale is made. (Education Law, § 1432-a; Matter of Dickson v. Flynn, 273 N. Y. 72.) In the field of pharmacy, attempts to confine ownership of drugstores to licensed pharmacists, or to corporations whose stock is owned solely by licensed pharmacists, have been declared unconstitutional, on the ground that such a requirement concerning ownership bore no real relationship to public health, and, therefore, was unreasonable. (Liggett Co. v. Baldridge, 278 U. S. 105; Pratter v.Lascoff, 261 N. Y. 509.) A corporation, therefore, may own a drugstore and employ licensed pharmacists to compound prescriptions.

The analogy between the profession of podiatry or chiropody and those of optometry and pharmacy, is a close one, and in the absence of a clear expression of intention we should not hold that licensed practitioners of one may not be employed by a corporation when the Legislature permits such employment of the others.

We are referred to other professions. Law and medicine are ancient and learned professions. Between doctor and patient and lawyer and client there is a confidential and trust relationship which does not exist between the chiropodist and those whom he treats. Dentistry also is recognized as a specialized branch of medicine, and the dentist treats diseases of the teeth and mouth, whereas the podiatrist is prohibited from treating communicable or constitutional diseases of any kind.

We next consider whether the acts of the salesman constituted the practice of chiropody. Clearly the use of the pedograph as a mechanical aid in determining the proper size of the shoe required does not constitute the practice of chiropody. Whether the statements by the salesman, in answer to the inquiries of the customer, constituted a diagnosis, is a more difficult question. It would be an unreasonable and harsh construction of the statute to hold that it was intended to prohibit shoe salesmen from pointing out to customers the manifest abnormalities of their feet when questions are put to them by the customers. It is clear from the record that the salesman at no time held himself out as being a podiatrist or being able to practice chiropody. On the contrary, he referred the customer to the duly licensed chiropodist. Some of the salesman’s remarks may have verged close to diagnosis, but we should not hold that a mere remark concerning an obvious fact or a loose use of language concerning a manifest abnormality constitutes practicing podiatry.

Similarly, the muse who gave massage and vibratory treatments under the direction of the licensed podiatrist was not practicing podiatry any more than a nurse who assists a physician is practicing medicine.

It follows that the judgments should be reversed and the information dismissed.

Crane, Ch. J., Lehman, O’Brien, Loughran and Rippey, JJ., concur; Hubbs, J., taking no part.

Judgments reversed, etc.


text:
    Anna T. Haverstick, Appellant, v. Clarence Hansen & Sons, Inc., Respondent.

      Argued January 12, 1938;
    decided March 8, 1938.

      Harry A. Gordon, Eric C. Gordon and Joseph V. O’Leary for appellant.
    The action is predicated on defendant’s malfeasance, resulting in a dangerous condition causing plaintiff’s injury; the contractual relation of the parties and questions of control of the premises at the time of the accident are incidental and not determinative matters, and the jury resolved the issue as to plaintiff’s alleged contributory negligence in her favor. (Kilmer v. White, 254 N. Y. 64; Clemens v. Benzinger, 211 App. Div. 586; Dollard v. Roberts, 130 N. Y. 269; Kaufman v. Abrahamson & Co., 248 App. Div. 628; Scott v. Shepherd, 2 W. Black. 892; Devlin v. Smith, 89 N. Y. 470; MacPherson v. Buick Motor Co., 217 N. Y. 382; Serano v. N. Y. C. & H. R. R. R. Co., 188 N. Y. 156.)

      Frederick Mellor for respondent.
    Plaintiff failed to prove a cause of action against the defendant. (Digelormo v. Weil, 260 N. Y. 192; Kilmer v. White, 254 N. Y. 64; Lotocka v. Elevator Supplies Co., 246 N. Y. 295; Cullings v. Goetz, 256 N. Y. 287; Potter v. N. Y., O. & W. Ry. Co., 261 N. Y. 489.) Plaintiff’s sister was in entire charge of the house on the day of the accident. She was, therefore, the agent of the plaintiff, and notice to her of the defective condition of the grating was notice to the plaintiff. (Ford v. Grand Union Co., 268 N. Y. 243; Hurley v. John Hancock Mut. Life Ins. Co., 247 App. Div. 547; Hyatt v. Clark, 118 N. Y. 563; Storm v. New York Tel. Co., 270 N. Y. 103; Koslovki v. International Heater Co., 75 App. Div. 60; 178 N. Y. 631; Nalli v. Peters, 241 N. Y. 177.) The defendant was not bound to anticipate any danger to the plaintiff from the condition. (Van Leet v. Kilmer, 252 N. Y. 454; Tyman v. M. L. S. Constr. Co., 262 N. Y. 161; Earley v. New York Tel. Co., 263 N. Y. 424.)
   Crane, Ch. J.

The plaintiff at the times herein mentioned was the owner of a private house, No. 143 Hancock street, in the borough of Brooklyn, city of New York. Her father, an old gentleman eighty-six years of age, lived with her, as did her two sisters, one a school teacher and the other a nurse. Between them they provided a home for the father and themselves. The plaintiff was a costume director in the theatrical trade, earning on an average seventy-five dollars a week.

The defendant is a domestic corporation engaged in the roofing business. On September 26, 1934, it entered into a contract with the plaintiff to make repairs and replacements to the roof of this house in Hancock street. Like so many of our city homes, this is a stone house, bay windowed, with high stoop leading to the parlor floor and an iron gate opening under the stoop onto the dining-room or basement floor. Beneath this basement floor is the cellar. In the courtyard outside the dining-room windows is and was an iron grating which lifted up on hinges so as to rest against the house when open. No doubt this opening was used for dumping coal into the cellar. It was also used as a means of ventilation. A wooden cover was placed over this grating when it was down. The plaintiff, when home, was in the habit of going out early in the morning to lift off this wooden cover so as to air the cellar.

The defendant’s servants, in the course of their work, rigged up a hoist to raise material from the street to the roof, and in doing so dropped a bucket or some heavy object onto the grating, breaking the hinge or fastening which secured it to the stone sides. In this condition the grating became a dangerous trap to any one who might happen to step upon it, as it would be likely to give way and land the person in the cellar. This is what did happen. The plaintiff was away when the grating was broken and did not return home until late at night. The next morning she went out as usual to lift off the cover; she stepped on the grating; it tipped up and she fell through the opening to the floor below, sustaining severe injuries. The defendant knew about the broken staples, knew the dangerous condition of the grating, as the plaintiff’s sister, who was at home, called the workmen’s attention to it, but, instead of making any repairs or providing barriers or warnings, they put the wooden cover over it and left.

A judgment for the plaintiff has been reversed by the Appellate Division on the law alone. Having found all these facts in the plaintiff’s favor it held that no cause of action existed at law because the defendant was not in possession of the real property at the time of the accident, although its men had been working there a few days before. The memorandum decision states: “ The inferences to be drawn from the facts established were within the province of the jury, and clearly the jury, under the proof here, was justified in finding that the iron grating was broken by the defendant’s employees. The defendant, however, having finished its work and left the premises at least two days before the accident, is not liable in tort where it is not in occupation or control of the property.” (250 App. Div. 859.)

This is not a case of passive negligence where an owner or lessee of property fails to repair or maintains it in a dangerous condition, causing injuries to invitees or licensees. This is a case of active negligence, and it makes no difference where the danger was created provided the person doing the act had reason to foresee that it might or would probably cause harm to others. A stranger who injures real property or lays a trap in it whereby others are hurt is liable for bis acts provided a reasonably prudent person would have realized the danger. This is a case where the direct act of negligence caused an injury which any reasonably prudent man should have foreseen, at least the evidence created a question of fact for the jury. The defendant was never in occupation or control of the property; this was always in the plaintiff; the defendant’s servants were on the property by invitation and permission of the plaintiff to do work. The work was done in a careless and negligent manner which caused harm to the plaintiff in just the same way, so far as legal consequences go, as if the men had dropped the bucket on the plaintiff’s head. The knowledge of the plaintiff’s sister of the broken grating was not attributable to the plaintiff; in fact she had not seen her sister from the time she got home the night before until after the accident. (Dollard v. Roberts, 130 N. Y. 269.)

The judgment of the Appellate Division should be reversed, and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.

O’Brien, Loughran, Finch and Kippey, JJ., concur; Lehman and Htjbbs, JJ., talcing no part.

Judgment accordingly.


author: Rippey, J.

text:
    Neva-Wet Corporation of America, Inc., Respondent, v. Never Wet Processing Corporation et al., Appellants, Impleaded with Another.

      Argued October 11, 1937;
    decided March 8, 1938.

      Maurice Bubinger and Robert Jacobs for appellants.
    Defendants conclusively proved prior and continuous user, (Greacen v. Bell, 115 Fed. Rep. 553; Cutter v. Gudebrod, 44 App. Div. 605; Lamb & Co. v. Herskovits, 204 App. Div. 407; Nelson v. Winchell, 203 Mass. 75; Ansehl v. Williams, 267 Fed. Rep. 9; O’Rourke v. Central City Soap Co., 26 Fed. Rep. 576; Page Co. v. Fox Film Corp., 83 Fed. Rep. [2d] 196; Baglin v. Cusenier Co., 221 U. S. 580; Wallace & Co. v. Repetti, Inc., 266 Fed. Rep. 307; Beechnut Co. v. Lorillard Co., 273 U. S. 629; Rockowitz C. & B. Corp. v. Madame X Co., 248 N. Y. 272.) The judgment does violence to the maxim that he who comes into equity must do so with clean hands. (Holzapfel v. Rehtjen, 183 U. S. 1; Holland v. Import Corp., 8 Fed. Supp. 260; Fleischmann v. Fleischmann, 7 App. Div. 280; Prince Mfg. Co. v. Prince Metallic Paint Co., 135 N. Y. 24; Worden v. California Fig Syrup Co., 187 U. S. 516; Gluckman v. Strauch, 99 App. Div. 361; Lehrenkrauss v. Universal Tours, Inc., 227 App. Div. 404.) Plaintiff’s advertising expenditures after notice, its sale of mere labels for a royalty charge, its use of the trade-marks on textiles or bottled chemicals — all invade appellants’ rights and violate the law. (Page & Co. v. Fox Film Corp., 83 Fed. Rep. [2d] 196; Wallace & Co. v. Repetti, Inc., 266 Fed. Rep. 307; Tiffany & Co. v. Tiffany Productions, Inc., 147 Misc. Rep. 679; 262 N. Y. 482; Falk v. American West Indies Trading Co., 180 N. Y. 445; Buffalo Mfg. Co. v. Batavia Leather Co., 153 N. Y. Supp. 779; Waterman v. Gordon, 8 Fed. Supp. 351.) The trial court erred in its findings of fact. (Tiffany & Co. v. Tiffany Productions, Inc., 147 Misc. Rep. 679; 262 N. Y. 482; Ansehl v. Williams, 267 Fed. Rep. 9; O’Rourke v. Central City Soap Co., 26 Fed. Rep. 576; Wallace & Co. v. Repetti, Inc., 266 Fed. Rep. 307; Page & Co. v. Fox Film Corp., 83 Fed. Rep. [2d] 196; Smith Co. v. American Pharmaceutical Co., 270 N. Y. 184.)

      Murray C. Spett and Arthur Sheinberg for respondent.
    Defendants’ registration, in the absence of bona fide and continuous user appurtenant to and in connection with an established business or trade can, as a matter of law, avail them nothing as against the continuous use and good will created by respondent in its name, duck and slogan in the water-repellent processing business. (Rockowitz C. & B. Corp. v. Madame X Co., 248 N. Y. 272; Waldes v. International Mfrs. Agency, 237 Fed. Rep. 502; Layton Pure Food Co. v. Church & Dwight Co., 182 Fed. Rep. 24; Borden Ice Cream Co. v. Borden’s Condensed Milk Co., 201 Fed. Rep. 510; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118; Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665; Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169; Brown Chemical Co. v. Meyer, 139 U. S. 540; Carroll v. Duluth Superior Milling Co., 232 Fed. Rep. 675; Simplex Automobile Co. v. Kahnweiler, 162 App. Div. 480; Corning Glass Works v. Corning Cut Glass Co., 197 N. Y. 173; Beach-Nut Packing Co. v. Lorillard Co., 7 Fed. Rep. [2d] 967; Certain-Teed Products Corp. v. Philadelphia & Suburban Mortgage Guarantee Co., 49 Fed. Rep. [2d] 114; Apollo Bros. v. Perkins, 207 Fed. Rep. 530; Ward Baking Co. v. Potter-Wrightington, Inc., 298 Fed. Rep. 398.) Defendants definitely abandoned whatever rights they had to the use of the marks prior to respondent’s adoption and user. (Ansehl v. Williams, 267 Fed. Rep. 9; Rockowitz C. & B. Corp. v. Madame X Co., 248 N. Y. 272; Victor Radio Corp. v. Radio-Victor Corp., 250 N. Y. Supp. 204; Yellow Cab Corp. v. Korpeck, 120 Misc. Rep. 499.) The contention of unclean hands is unfounded in fact and in law. (Young’s Rubber Corp. v. Lee Co., 45 Fed. Rep. [2d] 103; Fleischmann v. Fleischmann, 7 App. Div. 280; Lehrenkrauss v. Universal Tours, Inc., 227 App. Div. 404; 262 N. Y. 332; Notaseme Hosiery Co. v. Straus, 240 U. S. 179; Board of Trade v. Kinsey Co., 130 Fed. Rep. 507; 198 U. S. 236; Fuller v. Berger, 120 Fed. Rep. 274; 193 U. S. 668; Coca Cola Co. v. Gay-Ola Co., 200 Fed. Rep. 720; Talbot v. Independent Order of Owls, 220 Fed. Rep. 660; World’s D. M. Assn. v. Pierce, 203 N. Y. 419; Curins v. Bryan, 36 How. Pr. 33.)
   Rippey, J.

The plaintiff charges the defendants with unfair practices by which they have unlawfully appropriated or have threatened unlawfully to appropriate to themselves the good will which plaintiff has built up in the business of rendering fabrics, clothing and various other merchandise moth-repellent, water, spot and perspiration resistant and soil proof by means of chemical processing together with its property rights in the trademark or trade name of Neva-Wet ” and trade-mark consisting of a representation of a duck in the rain,” coupled with the slogan sheds water like a duck’s back,” when used in connection with such business. Defendants have counterclaimed and assert unfair competition by plaintiff with their business and unlawful appropriation of the duck ” mark and of the mark Never Wet,” in which they claim a property right. Each asserts that the other’s hands are so unclean that it may not receive any relief in a court of equity. Plaintiff has so far succeeded on all issues, but not with entire unanimity of the judges in the court below.

The findings of fact made by the trial court are fundamentally inconsistent, and under such conditions the rule is that the findings most favorable to the appellants should be adopted and a new trial granted (Stokes v. Stokes, 198 N. Y. 301). But in this case it would seem that the interests of the parties will not best be served by the award of a new trial, since the record, which could not be substantially changed on controlling points upon a new trial, conclusively indicates that the plaintiff may not succeed.

The plaintiff is a Delaware corporation and one S. Howard Lefkowitz is its president. It was incorporated July 10, 1933, and maintains an office at 500 Fifth avenue, New York city. S. & I. Lefkowitz, Inc., was a New York State corporation organized in 1932 and engaged in business in New York city in the manufacture of ladies’ dresses. It did no sponging, dyeing or processing. S. Howard Lefkowitz was also its president. It was the predecessor of plaintiff, and ceased to do business at the time of plaintiff’s organization. Lefkowitz was and is the principal actor in both corporations. Phil Klein was and is the president of defendant Never Wet Processing Corporation. It was organized February 14, 1936, and is engaged in business in New York city. For a time in 1935 Klein operated, under the trade name and style of Never Wet,” and later processing of garments was done by All Weather Processors, Inc., with whom he was associated. None of the parties to this suit are engaged in manufacturing the merchandise processed by their methods. The plaintiff was interested in the sale of chemicals alleged to be made from a secret formula to various manufacturing and retail establishments for use in treating cloth and manufactured garments to make the same water and moth repellant and spot resistant and in licensing to such establishments the use of the trade-mark or trade name Neva-Wet ” and the " duck ” label hereafter referred to thereon for a consideration based on the number of pieces or yardage of cloth processed. It was also engaged in processing such merchandise sent to it for that purpose by others. It claims to have popularized the process through advertising and other means so that the mark or name “ Neva-Wet ” and the “ duck ” mark have acquired a secondary meaning.

The typical and most common case of unfair competition consists in the palming off of the goods of one trader for those of another (Perry v. Truefitt, 6 Beav. 66; Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118, 140; Hanover Star Milling Co. v. Metcalf, 240 U. S. 403; Wornova Mfg. Co. v. McCawley & Co., 11 Fed. Rep. [2d] 465). It is said that nothing less will constitute unfair competition (Elgin Nat. Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 674). In the case at bar there is no express palming off by defendant of its goods as those of plaintiff, and it has been so found by the lower courts. There was no fraudulent representation by word or act that the goods caused to be processed by defendants were processed by plaintiff (Cf. Hanover Star Milling Co. v. Metcalf, supra).

The case here, therefore, revolves around the ownership and the right to the exclusive use of four trade-marks and of two alleged trade names in connection with the business of processing merchandise for the purposes above indicated. The law applicable to the use of. trade names and trade-marks in actions for unfair competition is substantially the same (Howard v. Henriques, 3 Sandf. 725; Glen & Hall Mfg. Co. v. Hall, 61 N. Y. 226), although there is a distinction in definition according to geographical limitations on use (Ball v. Broadway Bazaar, 194 N. Y. 429). It is observed in the last cited case that a “ trade, name relates to a business and its good will rather than a vendible commodity,” and that the trade-mark represents the good will in the market, while the trade name proclaims it to those who pass the shop. ” (p. 435). The infringement of trade-marks and the illegal use of trade names is a branch of the broader law of unfair competition (Hanover Star Milling Co. v. Metcalf, supra). The ultimate offense in cases involving unfair competition is the palming off by one trader of bis goods as those of another (Merriam Co. v. Saalfield, 198 Fed. Rep. 369; affd., 241 U. S. 22). But the equity power of the court should not be exercised to interfere with freedom of conduct of trade and general business competition but only to restrain fraud and imposture (Monro v. Tousey, 129 N. Y. 38, 43).

Concerning trade-mark registration and use, the following facts appear. On June 2, 1925, a certificate of registration was issued to Klein by the United States Patent Office of the trade-mark known as “ duck in the rain,” in class 39 (U. S. Code, tit. 15, § 131), and first use of the mark was claimed in connection with his business on October 15, 1923. This trade-mark as registered consisted of the picture of a duck with straight lines drawn at an oblique angle above to indicate rain or water falling upon its back, and Klein indicated that it was to be used in connection with and attachedfjto men’s and boys’ overcoats, suits and trousers and ladies’ coats and suits in said class. Klein also secured registration in the Patent Office of the mark “ Never Wet ” on January 3, 1928, in the same class, claiming first use May 15, 1926, and asserted that the mark was to be applied or affixed to the goods or to packages containing the same by placing thereon a printed label on which the trademark was shown. Some five years later Lefkowitz attempted to secure registration of the mark “ Neva-Wet ” in class 39, but, after a contest in the United States Patent Office, to which reference will later be made, he was denied registration on the ground that it was in conflict with Klein’s trade-mark registered five years previously and additionally was purely descriptive. Klein’s mark was then held to cover clothing generally. Neither Lefkowitz nor plaintiff has been able to secure registration of that mark in class 39 at any time in view of Klein’s previous registration of “ Never Wet,” despite continuous effort so to do. On August 6, 1935, however, plaintiff procured registration of a trade-mark Neva-Wet ” for processing fluids to be used for the purpose of treating various materials under class 6, relating to medicines, chemicals and pharmaceutical preparations, and on October 1, 1935, registered a label for garments bearing a facsimile of a duck in the rain,” with a legend thereon sheds water like a duck’s back.” On March 17, 1936, plaintiff secured registration of a trade-mark Neva-Wet ” for processing fluids for treating furs and the like in class 6. The “ duck ” mark was identical with Klein’s except for the legend. It is important to note that S. & I. Lefkowitz secured registration of the trade-mark ec Neva-Wet ” on June 12, 1934, in class 42 (textiles) and plaintiff secured registration of the same name in class 37 (paper) February 19,1935; that S. & I. Lefkowitz also registered Neva-Wet ” on August 15, 1933, for linen suits after rejection for piece goods, and plaintiff procured registration of “ Water-Shed ” in class 39 on May 7, 1935, of “ Weather-Guard ” in class 39 on May 14, 1935, of “ Repels-Wet ” in class 39 on May 14, 1935, of Everdry ” in class 6 on December 31, 1935, and of All-Wether ” in class 6 on February 11, 1936. An important point to note is that three registrations were granted to plaintiff in class 39 other than “ Neva-Wet,” and that each application, whether filed by the Lefkowitz Company or by the plaintiff (with the exception of those registered August 15, 1933, and October 1, 1935) was based upon the allegation that the trade-mark was first used in interstate commerce on April 10, 1933, which the evidence did not sustain. Plaintiff disclaimed at the trial the acquisition of any right to use any of the trademarks through the S. & I. Lefkowitz Company.

The registration by Klein of his marks was under the act of Congress of 1905 (Ch. 592, Feb. 20, 1905, 33 U. S. Stat. 724-731; U. S. Code, tit. 15, §§ 81-109). By virtue of the express terms of the act, registration constituted prima facie evidence of title (IT. S. Code, tit. 15, § 96). On the other hand, plaintiff’s marks were all registered under the act of 1920 (Ch. 104, March 19, 1920, 41 ü. S. Stat. 533-535; IT. S. Code, tit. 15, §§ 121-128), and under that act registration was without effect as a source of title or even as prima facie evidence thereof (Broadway Rouss, Inc., v. Winchester Co., 300 Fed. Rep. 706, 719; cert. den., 266 IT. S. 607). Lefkowitz attempted to register the mark “ Neva-Wet ” under the act of 1905, but the application was rejected after notice that the mark was in conflict with Klein’s mark “ Never Wet.” After S. & I. Lefkowitz, Inc., was refused registration under the 1905 act it canceled the application under that act on June 23,1933, switched to an attempted registration under the 1920 act, and thereby admitted that it could make no claim to ownership of the mark in class 39. In attempting to meet the objection of the Patent Office, an amendment to the application was made by Lefkowitz, in which he said: Themark in No. 237,302 consists of the word 1 Never ’ and the word 1 Wet ’ printed in bold face type with the first letter of each word capitalized. It cannot be seen that the public would confuse applicant’s mark ‘ Neva-Wet ’ in its distinctive form with the mark shown in registration No. 237,302.”

Without use in connection with a business, trademarks, of course, are not subject to exclusive appropriation merely because of priority of registration. The trial court found that plaintiff has caused its water-repellent chemicals to be applied to substantially all kinds of merchandise described in classes 6, 37, 39 and 42, embracing chemicals, paper and stationery, clothing, and knitted, netted and textile fabrics, aggregating some thirty-five different types of merchandise. These chemicals are sold in bottles and upon the bottle is featured Neva-Wet ” as well as the representation of a duck in the rain ” at wholesale and retail since February, 1936, and merchandise has been treated by plaintiff and others by the method plaintiff has adopted. Labels impressed with the marks have been used and attached to the merchandise so treated. Considering the findings as a whole, and in the light of the sustaining evidence, we think the court meant to find and did find that the marks registered by Klein became attached to his business and good will prior to the time of their registration, and that from the time of first use until 1930 he lawfully used such trade-marks in a business lawfully conducted by him with full right to do so. Thus priority of bona fide adoption and use and validity of ownership have been found, upon sufficient evidence, in favor of Klein. It is the general rule, as between conflicting claimants to the right to use the same trade-mark or colorable imitations of one another, priority of appropriation determines the question (Oneida Community, Ltd., v. Oneida Came Trap Co., 168 App. Div. 769; United Drug Co. v. Rectanus Co., 248 U. S. 90). Klein acquired good title not only by the terms of the 1905 registration act, but by selection and adoption of marks open to use by him, which according to the evidence on which the findings were necessarily based, were appended and attached physically to vendible commodities actually sold. Such early use has been clearly found to have been continuous and to have extended from earlier than 1923 to 1930.

Thus the foundation for plaintiff’s claim to exclusive right to use the marks which, it says, were subject to its exclusive appropriation, cannot and does not rest on priority of title, appropriation or use, upon consent or upon assignment. It rests upon the findings (1) that, although Klein had acquired prima facie an exclusive right to the use of the Never Wet,” duck ” and “ Always Dry ” trade-marks and used them many years before the claimed first use of any of the marks claimed to be owned by the plaintiff, he had lost this exclusive right to them through non-use, (2) that Klein intentionally abandoned the marks in 1929 or subsequently, (3) that plaintiff appropriated and used them in good faith without consciousness of infringement, and (4) that it successfully exploited them in its business. It has developed a substantial business in which it used the marks.

There was no evidence that Klein intentionally abandoned his marks. We think the evidence conclusively establishes the contrary. To constitute abandonment v there must be satisfactory evidence of definite acts on the part of Klein which indicate an actual intention permanently to give up the use of the trade-mark (Saxlehner v. Eisner & Mendelson Co., 179 U. S. 19; Burt v. Tucker, 178 Mass. 493; Rockowitz C. & B. Corp. v. Madame X Co., 248 N. Y. 272; Jergens Co. v. Woodbury, Inc., 273 Fed. Rep. 952; affd., 279 Fed. Rep. 1016; cert. den., 260 U. S. 728). Successful opposition of Klein to the efforts of Lefkowitz to secure registration of “ Néva-Wet ” in the Patent Office, which efforts commenced on April 10, 1933, and extended to December 21, 1934, and Klein’s then assertion of his right to use and to the ownership of the mark Never Wet,” as shown by the documentary evidence in this case, conclusively establish the fact that there had not been and was not an intentional abandonment by Mm of the mark “ Never Wet.” Such lack of intent to abandon either mark is likewise conclusively shown by uncontradicted and ummpeached evidence of a number of witnesses, some of whom were clearly disinterested, to the effect that Klein had used the marks in connection with processing men’s and women’s clothing more or less continuously from 1923 to 1936, that the processing had been done for Mm, and that both marks had been attached to thousands of suits. There was no substantial evidence to the contrary. It was sought to raise a question of fact by testimony to the effect that Klein’s business of processing was small, that he did no manufacturing, that the business was interrupted, and that he was, from time to time, engaged in other businesses or. none at all. Failure to manufacture the merchandise to wMch the marks were attached could not prevent Klein from acquiring such trade-marks or property rights in the names or labels (Volger v. Force, 63 App. Div. 122) or establish later abandonment thereof. No inference of abandonment may be raised from the mere fact that Ms business was small (Ansehl v. Williams, 267 Fed. Rep. 9; O’Rourke v. Central City Soap Co., 26 Fed. Rep. 576; Page & Co. v. Fox Film Corp., 83 Fed. Rep. [2d] 196, 200). There were concededly periods between 1929 and 1936 when Klein was devoting some portion of his time to other businesses, yet he testified that he continued to sell suits which he had had processed for him by others even during such periods to which labels bearing his mark had been attached. However that may be, “ the right to use does not depend upon any particular period of usage ” (Wallace & Co. v. Repetti, Inc., 266 Fed. Rep. 307; cert. den., 254 U. S. 639; Baglin v. Cusenier Co., 221 U. S. 580) or upon the fact that there may have been intermittent periods of non-user or slight use if the business employing the trade-marks was more or less continuous (Beech-Nut Packing Co. v. Lorillard Co., 273 U. S. 629; Katz Underwear Co. v. Corticelli Silk Co., 29 Fed. Rep. [2d] 874). Abandonment being in the nature of a forfeiture must be strictly proved (Julian v. Hoosier Drill Co., 78 Ind. 408; Mathy v. Republic Metalware Co., 35 App. Cas. [D. C.] 151). There was no evidence or finding of acquiescence by Klein in infringement by plaintiff with knowledge thereof or of loches. As soon as Klein learned of the infringement he went to Lefkowitz and demanded that he desist and asserted his continued ownership in and right to the use of the marks.

It appears, then, that Klein had valid trade-marks to the use of which he was entitled at the time of the attempted registration by the Lefkowitz Company and later the registration by plaintiff of the mark Neva-Wet ” and of the label containing a “ duck ” mark, and that such appropriation and subsequent use by the plaintiff were an infringement. “ Neva-Wet ” is clearly a colorable imitation of Never Wet.” Whether or not the marks Neva-Wet ” and “ duck ” were subject to exclusive appropriation as common-law trade-marks, Klein had the right to register and established the marks in connection with the use in his business. A colorable imitation is as much an infringement as is the use of the mark in its precise form (Davids Co. v. Davids Mfg. Co., 233 U. S. 461).

The finding that plaintiff had adopted and used its marks in good faith without consciousness that it was infringing is contrary to all of the evidence in the case applicable to the question, oral and documentary, except the testimony to that effect by Lefkowitz which is insufficient as matter of law.

From the testimony of Lefkowitz and the documentary evidence it appears that Lefkowitz embarked, in 1933, as president of and in behalf of 8. & I. Lefkowitz Company, to acquire the name or mark “ Neva-Wet ” in the identical class in which Klein had the registered mark Never Wet.” If he had no notice of Klein’s mark when the application was filed, notice thereof was given him in writing by the Patent Office on July 28, 1933. In the meantime he had organized the plaintiff corporation. Subsequent to the date of its organization the application was rejected four times, including the rejection on November 16, 1934. During that period, to meet and overcome, if possible, rejection on the ground of Klein’s prior mark, it was asserted in writing that Klein had abandoned his mark and again that Klein was dead. To meet the objection of the previous registration of Neva-Wet ” by S. Leibovitz & Sons, Inc., it was represented that that concern had abandoned the mark and was out of existence. All of those representations were knowingly false. The Leibovitz concern was prominently engaged in business at the time near the place of business of Lefkowitz. On November 30, 1934, two weeks after his failure to secure the registration of “ Neva-Wet ” in class 39, in behalf of plaintiff he caused to be filed three applications to register Water-Shed ” and Weather-Guard ” in class 39 and “ Neva-Wet ” in class 37 (paper), and on December 5, 1934, applied for registration of “ Itepels-Wet ” in class 39 and later made five applications for registration of “ Neva-Wet ” and other names in class 6. “ Neva-Wet ” was fraudulently appropriated with full knowledge that it was in conflict with and an infringement of Klein’s mark and for the definite purpose of securing whatever advantage might be derived from whatever good will Klein had therein or whatever advantage he might have derived from its use. If the name “ Neva-Wet ” was not appropriated for a fraudulent purpose why was it not satisfactory for plaintiff to use one of its other marks? The clear design was to breed confusion and mislead the public (Lehrenkrauss v. Universal Tours, Inc., 262 N. Y. 332, 338). Likewise, the use by it of the label with the duck is clearly a simulation of Klein’s mark. The fact that the legend on the label sheds water like a duck’s back ” was added would not change the result, because the purpose of the mark was to show that the process and the chemicals used as a repellant by Klein would shed water like a duck’s back. Plaintiff represented that the name Neva-Wet ” was registered in the Patent Office under the number 61,774 for use on ladies’ dresses and in the manufacture of ladies’ and misses’ dresses and in connection with ginghams, piques, organdies, seersuckers and corduroys, whereas the trial court found that the label bearing number 61,774 was restricted in its use to linen suits and rejected for piece goods. Plaintiff fraudulently represented to the pubEc that it had the sanction of the Patent Office for the use of the “ duck ” label generally in connection with a processing fluid which it put out in bottles under U. S. Reg. No. 326,893, which covered a trademark for the product “ Neva-Wet ” in class 6 (chemicals), whereas respondent was granted the right to use the duck ” label for garments only under registration number 46,419. Similar false advertising has been declared a bar to equitable relief (Holland v. C. & A. Import Corp., 8 Fed. Supp. 260; Prince Mfg. Co. v. Prince’s Metallic Paint Co., 135 N. Y. 24, 38; Worden v. California Fig Syrup Co., 187 U. S. 516, 528).

While the foregoing and other misconduct, going directly to the issues involved, was clearly recognized by the trial court in its opinion, it brushed it aside by asserting that it was immaterial in view of the scope of plaintiff’s activity and the widespread effect of a large advertising campaign which had apparently succeeded in attaching significance to the name and process of the plaintiff. The court evidently overlooked the fact that most of the money referred to as being spent in advertising was used after Lefkowitz had had definite notice from the Patent Office of Klein’s marks and in spite of the fact that he knew that those marks had not. been abandoned by Klein (Cf. Tiffany & Co. v. Tiffany Productions, Inc., 262 N. Y. 482; Wallace & Co., v. Repetti, Inc., supra; Page & Co. v. Fox Film Corp., supra). No amount of advertising can excuse fraud and unconscionable conduct in the appropriation of other people’s property. Regardless of any other question in the case, the plaintiff is not in court with clean hands, and is not entitled to equitable relief (Koehler v. Sanders, 122 N. Y. 65, 75). The fraudulent conduct of plaintiff goes directly to the issues involved.

The trial court found that by reason of the use of the trade-marks by plaintiff they had acquired a secondary meaning, but, even so, it was barred from asserting it here, inasmuch as it has unlawfully appropriated by simulation and fraud the marks of the defendants which were not abandoned. Resulting similarly is the fact that any secondary meaning found attached after notice of Klein’s rights.

We think that the term “ Neva-Wet ” represents merely an idea and is merely descriptive of the articles' to which the term is attached and indicates characteristic qualities and the nature of the article (See Derenberg on Trade-Mark Protection and Unfair Trading, pp. 257-263.) If so, it is not subject to exclusive appropriation (Caswell v. Davis, 58 N. Y. 223; Koehler v. Sanders, supra; Fischer v. Blank, 138 N. Y. 244, 249). The words “ Neva-Wet ” and Never Wet,” if used separate from and unconnected with the corporate names, are practically interchangeable phonetically, in appearance and meaning. They are words of common speech, purely descriptive and not subject to exclusive appropriation by plaintiff as a trade name in the absence of proof and finding that the business is confined to narrow limits geographically (Ball v. Broadway Bazaar, supra). Plaintiff asserts and it has been found that its business is internationally advertised and not local but international in scope.

Plaintiff uses the word “ Neva-Wet ” in its corporate name, on its labels and advertising matter and in connection with its business generally, and defendant the words Never Wet.” Their mere use in the corporate names lays no basis for unfair competition. Their use in the corporate titles in conjunction with the other words used is not calculated to deceive any one. On their face they indicate that they are names of separate and distinct corporations.

There is no basis in fact for the conclusion that defendant may be restrained from the use of the words Never Wet ” in its corporate name.

The judgments should be reversed in so far as they award relief to the plaintiff and the complaint dismissed, with costs to the appellants in all courts. The judgments should otherwise be affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Pinch, JJ., concur.

Judgment accordingly.