author: Emery, V. C.

text:
    Eureka Fire Hose Company v. Eureka Rubber Manufacturing Company.
    [Decided April 12th, 1905.]
    1. “Eureka,”'as an arbitrary or fancy word, was available to a rubber manufacturing company first adopting it for its exclusive use as a trade mark in the designation of its product.
    2. The wrongful use of one of several words of a trade mark may constitute an infringement which will be enjoined.
    3. The infringement of a trade mark may be enjoined, without regard to the intent of the infringer.
    4. The voluntary selection and use of the word “Eureka” as part of defendant’s corporate name, with the intention or purpose in part of competing with complainant, whose hydraulic hose and other goods, at the time of defendant’s incorporation, the word had come to designate and distinguish in the trade, to the knowledge of defendant, in the absence of other evidence to control or explain it, raises a presumption that it was done with the intent to profit by complainant’s trade reputation in competitive goods, and hence no further proof was necessary to entitle the complainant to an injunction against the use of the word to its injury.
    Heard on bill, amended bill, answers, replication and proofs.
    Complainant is a corporation of this state, incorporated December 25th, 1899, under the name of “Eureka Eire Hose Company,” and the defendant is also a corporation of this state, organized July 15th, 1902, under the name of “The Eureka Eubber Manufacturing Company.” The principal manufactures of the complainant are fire and other hose, two-thirds of its business being in a rubber-lined cotton fire hose, and a considerable part of defendant’s sales—seven per cent, or more—• are of hose of the same general character. Complainant is the successor of a company incorporated in the State of Hew York, in 1875, “to manufacture fire hose and other knit and woven fabrics,” which carried on the business of manufacturing' the rubber-lined hose from that time until the complainant was incorporated in this state (where its factory was located), mainly for the purpose of taking over the property and business of the New York corporation. Complainant claims that at the time of defendant’s incorporation the hose and goods manufactured by it had become known in the trade and to the public as the “Eureka” hose or goods, and that it was entitled to the exclusive use of this name as applied to these articles. The use by tire defendant of tire name “Eureka” with reference to the same class of goods, which it is putting on tire market, is alleged to be a violation of complainant’s exclusive rights to the name or word. The complainant also claims that the goods manufactured by its predecessor and itself, and always put upon the market under the name “Eureka,” were of a high grade or standard, and the name came to indicate this high grade, and that the use by the defendant of the name “Eureka,” in connection with' the advertisement and marketing of its goods, is an attempt to market their goods upon tire reputation of complainant’s goods, and is done in unfair competition with complainant; that the use of the word “'Eureka” by defendant in its corporate title, and in advertising and marketing its goods, is likely to deceive and has in fact deceived the public, and has led to purchases of defendant’s goods instead of complainant’s goods. The complainant also alleges that because rubber is one of the components principally used by it in its manufacture of hose, the word “rubber” has from the time of the formation of the New York company been often used by its customers and correspondents as part of its title in addressing them for orders or upon business; that the defendant company has established an office in New York, where complainant also has an office, and that such confusion has resulted from the use by both companies of the name “Eureka” in reference to the same class of goods; and it is also alleged that the use of the name “Eureka” in its corporate title was in contravention of the eighth section of the Corporation act, which provides that “no name shall be assumed already in use by another existing corporation of this state, or so nearly similar thereto as to lead to uncertainty or confusion.” The bill prays an injunction against defendant’s using the word “Eureka.” in advertising or marketing its wares, especially1- fire hose, and the use of the name “Eureka” in its title as a corporation or otherwise. The defendant denies that the complainant’s goods had become known in the trade by the name of “Eureka” goods, or that complainant had acquired any exclusive use of this. name. It admits that it manufactures and markets rubber-lined cotton fire hose and other hose, in competition with complainant,'but alleges that in advertising and marketing these goods the hose and other articles are not advertised, marketed or stamped with the single word “Eureka” as a trade mark or name, but that this word is only used in connection with the corporate name, and its place of manufacture, Trenton, Hew Jersey, together with the trade mark or trade name of the special article, such as “Acme,” “Buffalo,” “Capital,” &c. As to the claim of unfair competition, the defendant denies that the use of the word “Eureka” in its corporate title or in advertising or marketing its goods is likely to deceive or has deceived the purchasing public, or leads or threatens to lead to a diversion of any of complainant’s business to defendant, or that defendant has ever sold its goods as complainant’s goods or on their reputation.
    As to the selection of its name, the defendant alleges that on application made on its behalf to the office of the secretary of state it was informed that the name assumed by it had not been assumed by any other corporation, and that no other name so nearly similar thereto -as to lead to uncertainty or confusion had been so assumed, and that thereupon the defendant chose this name.
    Complainant alleges that before filing the bill it applied to the defendant to cease the use of tire word “Eureka” in competition with it, and defendant admits a request to discontinue the use of the word “Eureka” in the prosecution of defendant’s business, and that it declined to accede thereto, and the reason given is that the use of the word “Eureka” in defendant’s corporate title, and in its advertisements and upon its goods, does not lead to any' uncertainty or confusion, under the eighth section of the Corporation law, and does not constitute unfair trade or competition.

      By an amendment to the bill, made at the hearing, the complainant also claims the exclusive right to a distinctive device, consisting of red, white and blue color parallel lines woven in the fabric for the purpose of distinguishing certain kinds of hose manufactured by it; that this device has become generally known to the public as indicating “Eureka.” goods of a particular kind, and has become identified with “Eureka” hose. The exclusive right to use this device in connection with the trade name “Eureka” is claimed as a valuable asset. Defendant is charged with simulating this device by the use of red, white and blue parallel lines in its catalogues and in branding and putting up its goods, intending to mislead the public, and, it is charged, that for the purpose of creating confusion and causing the public ip 'believe that defendant comj>any is identified with complainant the defendant uses these color lines, and the restraint of this use is sought. The defendant’s amended answer, also filed at the hearing, denies any simulation of this color device of complainant, or any use of it violating any rights thereto which complainant may have.

      Mr. Randolph Perhins, Mr. Gilbert Collins and Mr. Richard V. Lindabury, for the complainant.

      Mr. John V. B. Wicoff and Mr. William M. Imnning, for the defendant.
   Emery, V. C.

(After statement of issues.)

Eour questions for decision are raised by the pleadings and proofs.

First. Whether complainant has such an exclusive right to the use of the name or word “Eureka” as applied to the goods of its manufacture that the use of this name or word by defendant in the marketing of similar goods in competition is an infringement of complainant’s right to the use of the word or name on the goods.

Second. Whether the use of the name or word “Eureka” by the defendant in its corporate title or otherwise, in connection with the marketing of the goods in competition with complainant, was unfair or fraudulent competition.

Third. Whether the use of the name was a violation of the statute.

Fourth. Whether defendant’s use of the color lines, either on its goods or in the advertising and marketing of them, should be enjoined, either as a violation of complainant’s exclusive right or as unfair competition.

• The facts relating to the first question are not substantially disputed. It is clearly proved by complainant that the goods manufactured by the Hew York company, and by complainant as its successor, were, at the time of defendant’s incorporation, generally known in the trade under the name of “Eureka” goods, and that their goods, especially the “Eureka” fire hose, had a more extensive sale and had acquired a higher reputation than those of any other manufacturer. The fire hose was a rubber-lined cotton'fire hose in which an inside rubber tubing is covered with an outside cotton fabric (either woven or knit), the two being combined by a process of vulcanization. The rubber tubing used was manufactured for complainant to its special order and delivered in a special condition adapted to its process of vrilcanization. The process of combining the tube and cover does not appear to have been patented, but complainant’s predecessor claimed to have been the original makers of this combined cotton rubber-lined hose, and in its manufacture it appears to have attained the highest reputation in the home market, and also in many foreign markets. At the time of the transfer by the Hew York company its entire business in hydraulic hose amounted to over $500,000 a year, about two-thirds of which was the cotton rubber-lined hose, a trade exceeding that of any competitor in these goods. The price of the “Eureka” hose was generally higher than that of other hose, and some of its varieties had been adopted or referred to as the Standard hose. Several kinds of hose were made, differing in grade, quality and purpose of use, and to each of these varieties or brands a second or subsidiary trade name or trade mark was given, except to the kind marked with the word “Eureka” alone, which was the best of. each class of hose manufactured. In every other case the second or subsidiary name (usually called “brand” in the trade) was used in connection also with the name “Eureka,” sometimes in the entire name of the brand, as “Eureka Peerless,” “Eureka Wove Knit Hose,” “Eureka Garden Hose,” &c. In some form the name or word “Eureka” appeared on all their goods, and (except in a single instance) the name of the company, The Eureka Eire Hose Company, was also stamped on all their goods. This exception was the fire hose.sold to the city of New York, where the brand name “Eureka” was alone used. All of com: plainant’s hose bore thus in some form the name or word “Eureka.” This word as an arbitrary or fancy word was available to complainant for its exclusive use as a trade mark in the designation of its goods, and as the proofs show, this single name or word “Eureka” had come to designate and distinguish complainant’s hose and other goods at the time of defendant’s incorporation. The circumstance that this name “Eureka” was also used in connection with other words (in its title or other-' wise) could'not deprive complainant of the exclusive use of this word as applied to their goods, or make the exclusive use dependent on the association with other words. Many of the words other than “Eureka” which were used on their different brands were merely descriptive and not the subject of an exclusive -use, such as “Eureka Water Tower Hose,” “Eureka Eire Boat Hose,” “Eureka Tank Hose,” “Eureka Garden Hose,” “Eureka Wove Knit Eire Hose,” &c. The defendant admits the use of the name or word “Eureka” on all of its goods which are put on the market in competition with complainant, but relies as a defence or justification upon the fact that the word “Eureka” is used on its goods only in connection with its corporate title—“The Eureka Rubber Manufacturing Company of Trenton, N. J.,” which is stamped or marked on the goods, and in connection also with a special brand name, such as “Acme,” “Buffalo,” &e.

But if complainant has acquired the right to the exclusive use of the name or word “Eureka” as a trade, mark on the goods of its manufacture, this right may be infringed by the use of the name or word, even although in connection with other words or accessories. Paul Tr. M. § 204. In Newman v. Alvord, 51 N. Y. 189, plaintiffs manufactured cement ox water lime from stone taken from quarries near Akron, Erie county, and their cement came to be known in the market as “Akron” cement. Their labels were “Newman’s Akron Cement Co., manufactured at Akron, N. Y. The hydraulic cement known as the Akron Water Lime.” Defendants manufactured cement from a stone quarried near Syracuse. Their labels were “Alvord’s Onandaga Akron Cement or Water Lime, manufactured at Syracuse, Y. Y.” It was held (p. 193) that the plaintiffs had, as against the defendants (who did not get their cement from Akron), the right to the exclusive use of the word “Akron” as their trade mark on their goods. It appeared in this case (p-. 192) that the court found that the word “Akron” was used in the label by defendants for the purpose of increasing their sales and availing themselves of the. reputation acquired by plaintiffs’ cement, under the name of “Akron” cement, and that it was calculated to induce ordinary buyers to believe they were purchasing either plaintiffs’ cement, or cement of the same kind and value, but the judgment in the case was based on the plaintiffs’ exclusive right to use the word “Akron” as their trade mark, and defendants’ use of this word on their goods was enjoined (p. 190). In Hier v. Abrahams, 82 N. Y. 519 (1880), plaintiffs sold a brand of cigars with labels on the boxes “Ilier & Aldrichs,” and be.neath this name the word “Pride” in large letters, and “Havana” underneath. Defendants’ label was “The Pride of Syracuse,” and beneath this “Abrahams & Co.” An injunction against the use of the word “Pride” as a trade mark on cigars was granted, and the court said (p. 525) : “Its use in connection with different words or names from those in connection with which the plaintiffs used it does not sanction its being pirated any more than did the like use of the word1 ‘Akron,’ ” &e. In Ford v. Foster, L. R. 7 Ch. App. 611 (1872), the plaintiff, who designated shirts manufactured by him as “R. Ford’s Eureka Shirt,” and had' given {hem a trade reputation, was held to be entitled to a trade mark of the word “Eureka” as applied to shirts, and to enjoin defendant, -who sold similar articles labeled with the word “Eureka” alone, and in Saxlehner v. Eisner & M. Co., 179 U. S. 19, where the use of the word “Hunyadi,” used in connection with other words by defendant, was in question, the court sustained complainant’s claim to the exclusive use of the word, and it was said (p. 33) : “The reports are full of cases where bills have been sustained for the infringement of one of several words of a trade mark.”

Unless there be something in the claim of defendants that tire use of the word as part of their corporate title authorizes the attachment of its name (including the word “Eureka”) to the goods sold in competition with complainant, then the use of the name or word, • either alone or in connection with any other words, on these goods must be enjoined. I can see no difference or distinction in law between the appropriation of the benefit of a trade mark name or word by using it as part of a corporation name stamped on the competitive goods, and its appropriation bjr use in connection with other words or phrases, as was done in the Alerón Case and in the Rogers Case. Even if the addition of the other words in its title had been such as to clearly indicate that defendant, and not complainant, made the “Eureka” goods in question, yet as defendant, when it assumed this name, was unknown to dealers in these goods, the effect of placing the familiar name on them was, according to the doctrine of several well-considered cases, to give defendant the benefit of the well-established reputation of the articles and to' derive a greater benefit from their fraud. Shaver v. Heller, &c., Co., 108 Fed. Rep. 821, 823; Menendez v. Holt, 128 U. S. 514, 521 (1888). But there was nothing in the other words 'of defendant’s corporate title which indicated clearly that its goods on which the name “Eureka” appeared were not complainant’s goods, or goods of the same class. For the main word by which complainant was known in the trade for its goods was as the “Eureka” company, and the words “fire hose” or “rubber manufacturing” are merely descriptive of the business of the company. As the “Eureka” goods, or most of them, on the market were partly composed of" rubber, they were certainly the product of a rubber manufacturing-company, and in the trade thesq words would not of themselves be likely to distinguish defendant from complainant; the words “Trenton, N. J.,” as indicating the place of inanufacture, would liave little or no effect for purposes of distinguishing the makers of the goods, for both companies had offices in New York City, from which orders were taken, and although complainant’s factory was in fact in Yew Jersey, the place of actual manufacture would probably be unknown to many of their customers. The proofs show that while in the trade complainant’s corporate name always included the word “Eureka,” the other words were often misstated and sometimes omitted, and the confusion between complainant and defendant companies which in some cases is proved to have occurred in the trade resulted, as I think, from the fact that the defendant had adopted the word “Eureka” in its title. It was the main word of the title—its catch-word, so to speak— which the trade identified with the maker of the goods, rather than the other descriptive words of the title, which are often misstated. If this incorporation of complainant’s trade mark word in defendant’s corporate title is an infringement of the trade mark, then complainant is entitled to protection by injunction. This protection is granted without regard to the intent of the infringer, because a fraudulent intent to deceive the public and appropriate the benefit of the trade reputation of another is conclusively presumed, from the using of the name or mark after request to desist, although the absence of such intent ma)r in some cases be a defence to an action for damages. Paul Tr. M. § 23, and cases cited; Lawrence Manufacturing Co. v. Tennessee Manufacturing Co., 138 U. S. 537, 548 (1891); Hier v. Abrahams, 82 N. Y. 519, 526 (1880). Complainant is entitled to enjoin defendant from using the word “Eureka” as part of its corporate title, or in any form on any of the hose or other class of goods sold in competition with complainant which were manufactured or sold by complainant with that name marked on them at the time of defendant’s incorporation.

Second. Is the complainant entitled to enjoin, either wholly or to a limited extent, the1 use of the word “Eureka” in defendant’s corporate name? The right to this relief is based on two grounds—first, that irrespective of complainant’s right to any exclusive use of the word as a trade mark, the defendant’s use of the name or word “Eureka,” in connection with its corporate title, as describing or indicating the origin of its goods manufactured in competition with complainant, constitutes unfair trade or competition. The second ground is that the selection of the name and use of the name is a violation of the eighth section of the Corporation act, because it leads to uncertainty or confusion. The claim to this relief upon the -first ground is broader than the claim to enjoin the use of the name or word on the goods themselves, or in connection with other words, as part of its title or otherwise, which is a strictly trade mark use of the word, and the claim extends to its use of the name in any manner and for any purpose, and on the goods or otherwise, so long at least as defendant continues the competition with complainant’s goods. The contention is that because of the reputation which to the knowledge of defendant had been given to “Eureka” goods in the market by complainant, the selection of this name as part of defendant’s corporate title, for use in its advertisements, circulars, letter-heads, signs or otherwise, for marketing goods in competition with complainant, is in itself unfair competition, without regard to any actual fraudulent intention of tire' defendant in the adoption or use of the word in its corporate title, and it is further contended that the facts proved show an actual fraudulent intent on the part of the defendant to avail itself of complainant’s trade reputation in these goods. If such fraudulent intent to profit by complainant’s trade reputation in these competitive goods existed, and the corporate name adopted vras calculated to deceive, then the use of the name to the injury of the complainant must be enjoined. This principle was declared by the court of errors and appeals in International Silver Co. v. William H. Rogers Corporation, 67 N. J. Eq. 646 (1905), and the use of an individual’s own name in a corporation of which he was an incorporator and officer was enjoined because it was satisfactorily shown that it was voluntarily selected, and for the purpose of making an unfair use of it in competition with complainant. Where the use complained of is that of the use of defendant’s own name, either individually or as part of a corporate title, courts have differed upon the question whether fraudulent intent in the use of the name must be shown in order to entitle complainant to an injunction, and the status of the authorities on this important question is thoroughly examined by Vice-Chancellor' Stevens, before whom the Rogers Case was heard, in his opinion. 66 N. J. Eq. (21 Dick.) 119 (1904). He concluded that the whole question of unfair competition by the use of names or words of which complainant claimed a benefit by reason of trade reputation given to them exclusively by it, was reduced to the single substantial inquiry whether the defendant was in fact, by the use of the name or word, representing his goods as the goods of the complainant, and that-if he was so representing his goods, then, by the weight of authority, fraudulent intent in the use need not be proved to obtain an injunction, although it might be necessary in an action for damages for the false representation. The application of this rule as to the proof required to show fraudulent intent in the- use of the name is brought into question where the name used by the defendant is either his own name or a name which is part of the common stock of the language, such names being both classes of words which prima facie he is entitled to use, subject, however, to tire .qualification that he must so use them as not to represent (either intentionally or otherwise) his goods to be those of another whom he knows to be using the name. In such cases proof of other facts than the mere choice of the name may be necessary to justify either the presumption or conclusion that the use of the name by defendant is for the purpose of representing his goods to be the goods of complainant, and therefore unfair competition. But where, as in the present case, the distinctive feature of the corporate name selected by defendant was an arbitrary name, and was the trade name long established by complainant for those goods which defendant manufactures in competition, then the question which arises is whether any proof of fraudulent intent or unfair competition is necessary beyond the mere selection and use of the name with the intention of competition in those goods. In this class of cases involving the purely voluntary selection of name, the selection of an arbitrary name, to1 which another has given a trade reputation or value, in connection with the very class of goods defendant intends to put on the market, under a name containing the arbitrary or trade name, would seem to be ordinarily, of itself, sufficient proof of unfair competition, without further proof of fraudulent intent. The principle applicable in this latter class of cases and the distinction in matter of proof necessary in the two' classes, is stated in the leading case of Burgess v. Burgess, 22 Law Jour. Ch. (N. S.) 675 (1854), by Lord Turner, which has often been referred to as clearly declaring the law on the unfair use of trade names. He says (at p. 678) : “Where a person is selling goods under his own name, and another person, not having that name, is using it, it is clear that he so uses it to represent the goods sold by himself or the goods of another; but where the two persons have the same name, it does not follow that because the defendant sells goods under his own name, and it happens that the plaintiff has the same name, he is selling goods as the goods of the plaintiff.” In the report of the same case, in 3 DeG. M. & G. 896, 905, the language used is “it may be presumed,” instead of “it is clear,” but the report in 17 Jur. 293, agrees with the Law Journal Reports. In Fuller v. Huff, 104 Fed. Rep. 141, 145 (C. C. A., 1900), it was said that the unnecessary use of a name long used previously by another in the same business, and identified with its product, was likely to deceive the public, although used with prefixes or suffixes, and the manifest tendency to deception authorized an injunction without proof of any instance of actual deception. In Cellular Clothing Co. v. Maxton, App. Cas. 326, 333 (1899), the following statement of the law was approved: “In such a case [where a trader selects an invented name to distinguish his goods from those of other traders] the mere fact of the use of the arbitrary sign by a rival trader raises a presumption of a design to pass off his goods under false colors, which it is not easy to displace.” The voluntary selection and use of the arbitrary name or word “Eureka” as part of the defendant’s corporate name, with the intention or purpose (in part) of competing with complainant in tire sale of goods for which complainant had, to the defendant’s knowledge,paiready given a trade reputation in the market under this name, must, in the absence of other evidence to control or explain it, be presumed to have been done with, the intent to profit by complainant's trade reputation in these goods, and no further proof of fraudulent intent is necessary to entitle complainant to an injunction against the use of the name to its injury. The complainant contends, however, .that on the whole evidence such actual fraudulent intent on the part of the defendant is made out, and I think the claim is well founded.- Of the defendant's knowledge of the trade reputation of complainant's goods, and of its intention to use the name in the sale in competition with complainant, tire proof is clear. Mr. Lambert, who was one. of the promoters of the defendant company, and is now its general manager, had been in the rubber business for nearly twenty years, and was acquainted with the general trade in cotton rubber-lined hose throughout the country, and especially with the complainant’s manufacture. Mr. Cook, one of the incorporators and now the president of the defendant company, had also' been engaged for many years in another company which manufactured similar goods, and had some business dealing or acquaintance with complainant's manager. Another of the incorporators had also been connected with the same company. When the corporate name of defendant was selected, the incorporators knew of the complainant’s corporate title, “The Eureka Fire Hose Companjq” and made the selection of their own title in the view that notwithstanding complainant's name they were entitled to do so-. This fact appears from the letter of their solicitor, written to complainant’s solicitor, November 26th, 1902, in reply to a request on complainant's behaljj to drop the name “Eureka," either in its corporate title or the goods manufactured in competition. The complainant's articles of incorporation declared its object to be (among other things) “to carry on the business of manufacturers of fire and other hose and knit and woven, fabrics and woven goods, and ail goods of which rubber is a component part, and the various materials entering into the manufacture of any and all such goods.” Defendant's articles declare its object (among other things) “to make, purchase and sell rubber articles and goods of every kind and description, of which rubber, or other like gum, is a component pari, and the various materials entering into the manufacture of any and all such goods." This similarity of language indicates that the complainant’s charter may have been in the hands of the draughtsman of defendant’s charter, who was the person who made inquiry at the office of the secretary of state. Before the erection of its factory and putting its goods on the market, Mr. Lambert, as defendant’s manager, prepared a preliminary catalogue, in which attention was ■specially called to defendant’s goods as “Eureka Goods,” by a marginal notice in the catalogue printed in a large, separate block, with large capital letters, reading, “How to Tell Eureka Goods.” These directions, “How to Tell_ Eureka Goods,” thus specially called to the attention of the trade;, gave directions only as to the hose of the defendant company, which were to be branded by its tri-colors, fed, white and blue rings encircling the circumference of the hose, with its name and brand. In its letter-heads, the general style of complainant’s letter-heads was followed, with the picture of a factory from a particular point of view, giving a similar general effect. On these letterheads the word “Eureka” in the corporate title is most prominently and separately printed above, and directly under it is a section of hose, with red, white and blue circles, and the word “Eureka” only of its title appearing on the upper circle. On its sign at the New York office the word “Eureka” in the corporate title is also lettered separately and prominently in a manner to attract attention. Hnder these circumstances, the case would seem to be one where, if the actual intent is important, the burden of showing that the selection and use of this word in defendant’s title was not made for the purpose of deriving some benefit in the competition with complainant in “Eureka”' goods is upon tire incorporators. None of them have been called, and the case of the defendant upon this point rests upon the evidence of Mr. Lambert alone. So far, therefore, as the case depends upon defendant’s intention in the adoption or use of the name, it must be rested on his evidence, and the conclusion to be drawn from his evidence and actions. He gives no direct explanation or statement of the reason for adopting the name, and his evidence shows, apparently, that he considered the only trade mark or trade name to which complainant was entitled in the trade to be the special “brand” names fixed on its varieties of goods, and that it had no special right to the name “Eureka” except as one of its special brand names, and his whole course in the use of the word in the exploitation of defendant’s business proceeded manifestly on this view. His evidence as to the effect of tire names of special brands as indicating in the trade the makers of the goods is that, although well-known brands which have been on the market for any length of time are probably better known by the specified brands than by the names of the makers, and are usually referred to by the brand name, yet brands not SO' well known are usually called by the names of the makers. The fair conclusion from this evidence is, I think, that the names of the makers in the trade, as usually applied to their goods, e. g., the “Eureka Goods,” the “Boston Belting Goods” the “Goodrich Goods,” &c., first establishes the reputation of the brands in the trade, and that the brand name itself afterwards often becomes a sufficient indication of the maker. Lambert says that the complainant’s goods are perhaps more generally known by their brand names than those of any other manufacturers in the market. This indicates, I think, that in his judgment any brand put on the market originally as “Eureka Goods” acquires afterward a special reputation in the trade, by which the name of the brand alone designates the maker. Lambert’s admitted familiarity with the trade and with complainant’s reputation for the goods put on the market originally, at least, as “Eureka Goods,” his subsequent conduct as manager of the defendant in the use of this word “Eureka” in the catalogue, letter-heads and advertisements in putting on the market goods manufactured in competition with complainant, the persistence in using the name after notice that confusion had already occurred, taken in connection with the failure to give any explanation or statement of the reasons for selecting the name, warrant the conclusion'that the defendant’s adoption and use of the word “Eureka” as part of its corporate title and otherwise, was in fact for the purpose of availing itself to some extent of the trade reputation complainant had given to goods marketed under that name, and actual fraudulent intent is proved.

On the question of the violation of trade mark or trade name, no weight can bo given to the certificate or reply of the corporation clerk on defendant’s inquiry as to its-corporate name, for evidently the replies to such inquiries concern only an objection apparent in the name itself, without other consideration, and the action of defendant in acting on this reply must be, of course, at its own risk, when its adoption of the name is properly brought in question. As to the extent to which the use of the name should be enjoined, the protection of complainant’s trade name in connection with the marketing of goods manufactured in competition is the limit of its rights. The bulk of defendant’s business is in rubber mechanical goods not dealt in by complainant, and for the purposes of this business it has the right to use the word as part of its name or otherwise. But so long as it puts on the market goods in competition with complainant, the use of the word in its name, or otherwise in connection with these goods, seems, under the evidence in the case, necessarily calculated to mislead the public and to give defendant some advantage of complainant’s trade reputation. I cannot see how complainant can be sure to receive the full benefit of the trade name to which it is entitled except by enjoining defendant’s use of the name in its title or otherwise so long as it continues the manufacture or sale of the goods sold in competition with complainant. I think, however, the injunction should extend only to the goods or class of goods which complainant was putting on the market under its name at the time of defendant’s incorporation, and if complainant claims a wider injunction, I will hear it on this point. The form of a limited injunction was not specially Considered at the argument, and I will settle this upon notice if necessary.

Third. As to tire complainant’s right to enjoin the use of defendant’s corporate title under the statute, this right exists only if the name assumed is so nearly similar to the existing corporate name of complainant “as to lead to uncertainty or confusion.” The evidence in the cause does show that the use of the word “Eureka” in defendant’s corporate name has led to some confusion, hut in the main this confusion has occurred in reference to dealings—correspondence, orders, &c.—in the goods sold in competition. If the use of the word is enjoined so far as is necessary to protect complainant in its business, it ■ is very doubtful whether any confusion or uncertainty will result, other than that which complainant unavoidably incurs by the insertion in its title of a word which is also included in the corporate name of many other corporations engaged- in different business. On the evidence produced in this cause I will not advise a general decree that the use of defendant’s corporate title bo enjoined. The denial of this relief, however, is to be without prejudice to the filing of a bill hereafter for such relief in case it should appear that under the application of the limited injunction granted confusion or uncertainty, to the injury of the complainant, exists or continues.

Fourth. As to the use of the tri-color device by the defendant, the case now presented shows no ground for enjoining the defendant. Complainant’s use of the colors has been confined tofts fabrics of linen hose and cotton hose or-jackets, the lines of dyed threads extending longitudinally through the fabric. These colors seem to have been originally adopted because of the rules of an underwriters’ board, which required a color distinction of some kind to indicate its approval of the hose as sufficient for the use of factories or buildings insured by its members, and the tri-color is used on only a portion of complainant’s goods. The defendant on its cotton fabrics uses different color lines, purple or orange and green. Its only use of the red, white and blue on its products is on its rubber hose, by printing them with a plate three or four inches long and an inch wide, on ox near the ends of the section of rubber hose. It also uses these colors on its letter-heads, catalogues and envelopes. Complainant’s only ground to enjoin specially the use of the tri-color must be on the basis of trade mark rights, and assuming that it has such rights, I do not think an infringement of them by the defendant has been shown, and this special relief sought by the amended bill must therefore be denied. Irrespective of any trade mark right or claim, the use oí the tri-color by defendant is of some importance in the cause in- connection with the defendant’s use of the complainant’s trade mark and trade name “Eureka” in the sale of hose,- as bearing on defendant’s intent in using the trade name, but it has not been shown to be a ground for independent relief. A decree will be advised in accordance with this opinion.


source: Caselaw Access Project

author: Emery, Y. 0.

license: Public Domain

text:
    John C. Anderson, administrator of James A. Anderson, deceased, v. The Supreme Council Catholic Benevolent Legion et al.
    [Decided April 24th, 1905.]
    The charter of a beneficial association provided that its object was to establish a benefit fund for the families or dependents of members as they shall direct, and a by-law declared that on the death of one or more beneficiaries prior to the death of the member, if no change of beneficiary should have been made, the share or shares to which such beneficiary or beneficiaries would have been entitled shall be paid to the beneficiary’s legal representative, to be distributed to his or her heirs-at-law.—Held, that where a member of such order died after the death of his wife, who was named as his -beneficiary, without appointing a new beneficiary, the heiz-s of the wife at the time of the member’s death were entitled to the fund.
    Heard ou decree of interpleader, statements of claim, and stipulation.

      Mr. Philip L. Daly, Mr. Freeman Woodbridge and Mr. William Newcorn, for the complainant.

      Mr. Thomas 8. Anderson and Mr. John P. Oivens, for the defendants.
   Emery, Y. 0.

J ames .A. Anderson was a member holding a benefit certificate in the Catholic Benevolent Legion, a benevolent association organized under the laws of the State of Yew York. The certificate was payable to his wife, Rosana, who- predeceased him, and no new beneficiary having been designated, the question is to whom the fund is payable. By the certificate, the Legion agreed “to pay out of its benefit fund to Rosana Anderson, wife, a sum not exceeding $1,000, according to the provisions of law governing said fund, upon the death of said member in good standing, provided he shall not have -substituted another beneficiary.” By the charter of the association, one object was to establish a benefit fund, from which, on the death of a member, a sum not exceeding $5,000 “shall be paid to the family or dependent of such member as he shall have directed.” The constitution also declared one of the objects to be the payment, on the death of a member, from the benefit fund, of a sum not exceeding $5,000 “ to his legally designated beneficiary or beneficiaries.” The bylaws provided:

“Sec. 4. In the event of the death of one or more beneficiaries prior to the death of the member, and no change of beneficiary shall have been made, as provided by the laws of the Legion, the share or shares to which said beneficiary or beneficiaries would have been entitled shall be paid to the legal representative of the deceased beneficiary, to be distributed to his or her heirs-at-law, according to the law of the state or commonwealth in which he or she resided.”

Rosana Anderson, the beneficiary, died February 16th, 1903, and on February 25th, 1903, her husband, James A. Anderson, took out letters of administration on her estate. He continued payments as a member until his own death in Januar3r, 1904. His father, John C. Anderson, the complainant, took out letters of administration on the son’s estate on January 15th, 1904, and the defendant, John P. Owens, was appointed substitutionary administrator of the wife’s estate on February 5th, 1904. The administrators of the husband and of 'the wife each demanded payment from the Legion of the amount of the certificate, and the complainant, as administrator of the husband, filed his bill for the payment of the money against the Legion to enjoin payment to the administrator of the wife, who is also made a party defendant, together with Bridget Burke, the mother, and Julia Burke, the sister of the wife, her 'heirs-at-law and next of kin. The husband and wife left no children. The Legion, admitting its liability to pay the money due on the certificate, applied by petition in the suit to pay the money into court and for a decree of interpleader between complainant and defendant under the practice approved by Vice-Chancellor Green in Meyers v. Schuman, 31 Atl. Rep. 460 (1895), and since followed.

. It does not appear by the stipulation as to facts that either the father or the defendants Bridget and Julia Burke.were, at the time of James C. Anderson’s death, members of his immediate family or dependents on him, and at the hearing it was insisted by the opposing claimants that a payment to either the father of the husband or the mother and sister of the wife as “heirs-at-law” of tire wife under the certificate would be invalid under the clause of the charter requiring payment to be made “to the family or dependent of the member as he shall have directed.” But in associations of this kind the word “family,” like that'of “relative,” has a very extensive scope, and -has been held to include relatives or connections, both by blood and marriage. And while a valid objection that the payment, although authorized by the by-law, is not within the charter, might avail the association if it contested either or both payments, yet the money being paid into court by the association as due on the contract expressed in the certificate, the rights of the parties to the payment under the certificate, as supplemented by the bjrlaws, should now be determined without inquiring whether these went beyond the charter. Both these points were decided in Tepper v. Royal Arcanum, 61 N. J. Eq. (16 Dick.) 638 (Court of Errors and Appeals, 1900). The charter may, of course, be considered as affecting the construction of the by-law or certificate. Under certificates of this character issued by benevolent associations the right of the payment is a contractual right only, and depends on an appointment or designation under the certificate (supplemented, if need be, by the charter or by-laws), and is not a vested right of property in the appointee named in the certificate. Golden Star Fraternity v. Martin, 59 N. J. Law (30 Vr.) 207, 215 (Court of Errors and Appeals, 1896), is the leading case in this state as to the nature of the right. The original beneficiary named in the certificate having died, and no change of the beneficiary having been made, according to the rules of the association, the by-law providing for this contingency comes into operation, and' the amount of the certificate is to be paid “to the legal representative of the deceased beneficiary, to be distributed to her heirs-at-law, according to the law of the state [New Jersey] in which she died.” By-lawrs of this character are meant apparently to avoid the inequity pointed out in Golden Star Fraternity v. Martin, supra, of a retention of the money, as well as the premiums, by the association, if tire member after the death of the beneficiary failed to make any'other designation. In such contingency the money could not be made payable to the member himself, or to his legal representative for the benefit of his estate, for such a provision, either by the contract or charter, would be void, as creating an ordinary life insurance policy. Golden Star Fraternity v. Martin, supra, p. 213. One object of the by-laws was to indicate the person, upon whose receipt of the benefit the association should be discharged from further payments or claim, and the legal representative of the beneficiary referred to in the by-law must be the person wdio had that character at the time of the payment. In this ease the substituted administrator of the wife is therefore the person wdio is entitled legally to re^ ceive the payment. This payment to Mm, however, is not in the nature of property received for the benefit of the wife’s estate, but is made upon a special trust for distribution to the persons specially designated by the by-law as the substitutionary beneficiaries, and if these persons are parties to the suit their rights to the fund may now be declared. The only persons claimed to be the substituted beneficiaries as heirs-at-law of the wife are the husband on one side and the mother and sister of the wife on the other, and these claimants are all represented in the suit. Their rights to the fund in court should therefore be decided. The whole case comes down to the question as to who were the “heirs-at-law”' of the beneficiary for the purpose of receiving payment under this by-law. Words of this character, designating classes of persons to take under these contracts, have uniformly received a liberal construction (Tepper v. Royal Arcanum, supra), and if the question related to the-succession to a property right to which on the death of the wife her husband or her next of kin were at once entitled under the instrument, then under this rule of construction the word “heir-at-law” might fairly be taken to mean the person entitled by law to receive the benefit of her personal property on her death. Leavitt v. Dunn, 56 N. J. Law (27 Vr.) 309 (Court of Errors and Appeals, 1893). But in this case the words “heirs-•at-law of the beneficiary” are used only as designations of the persons who are, at the death of a member, to receive •the benefit of a payment, to which the wife had no property right, and the precise question arising for decision is whether the persons 'designated as heirs-at-law must answer the description of “heirs of the wife” at the time of the member’s death, or whether they must answer the description at the time of the wife’s death. If the description applies to the time of the death of the member, the member himself is, of course, excluded as a substituted beneficiary. In my judgment, the by-law is to be construed as directing payment to be made on the death of the member to those who then answer the description of her “heirs-at-law.” It is not a will or other instrument conveying property which we are now construing,' where property is given with a substitutionary bequest, but a contract which is essentially a contract to give benefits to some then living persons, as persons sustaining certain relations, and the designation as “heirs-at-law” of the beneficiary should not therefore relate back to the time of her death,- as if property had been given to her to be vested at that time for the purposes of succession. The time to which the designation applies is, I think, necessarily fixed as the time of the death of the member by the essential nature of tire transaction, including the charter, constitution, by-laws and the certificate or contract. The contract should be construed so that all of these may stand, and any other construction would, I think, make the whole contract -void. The association could not legally have provided-that if'no beneficiary was substituted, then the payment should be made to the member, for such .provision would have been void, as creating a life insurance policy; and equally invalid, I think, would have been a provision that if no other beneficiary was named, the payment should be made to- the legal representative of the deceased beneficiary for the benefit of those persons entitled to her estate on her death. This also would have made the right to the payment an absolute property right in her administrator on her death, as in a life insurance policy. The general object of these appointments or designations of beneficiaries, and the feature which distinguishes them from ordinary life insurance policies, is that they axe intended to be made, not for the increase of the estates of either the deceased member or the deceased.beneficiary, but for the benefit of some of the dependents ox members of the family of either, and in order that the certificates may he valid, the persons to receive the benefit must, I think, be living at the death of the member. And while there may perhaps have -been in this ease misapprehension of his rights, which may have led the member to refrain from.changing the beneficiary, yet the result, which must depend solely on the contract for payment seems to me the only construction of the contract and by-law which is reasonable or will make the contract valid. If a member under this form of by-law could add to the estate either of himself or his wife by the mere failure to designate another beneficiary than .the wife, then a method would seem to have been devised by which a purely life insurance policy to a member can be issued by benevolent associations organized solely for the purpose of benefiting certain persons (families or dependents) who survive them. This would radically change their whole character.

I will advise a decree that the defendants Bridget Burke and Julia Burke are equally entitled to the money paid into court, but before making decree will hear the administrator of the will as to the form of the decree which should be made for the protection of his rights.


author: Emery, Y. C.

text:
    Philip N. Jackson v. Leslie B. Miller, superintendent of buildings of the city of Newark.
    [Decided April 26th, 1905.]
    The owner of land in a city, having erected thereon a fence more than eight feet high before aDy ordinance had been passed prohibiting such fences, is entitled to a preliminary injunction restraining- the city- superintendent of buildings (pending final hearing-) from removing the fence on the ground that it was erected in violation of the ordinance, since certiorari would not lie to review the mere determination of the superintendent of buildings; nor would it lie to review the ordinance in question which applied only to fences subsequently erected.
    On application for preliminary injunction. Heard on bill and affidavits and answer and affidavits.

      Mr. Neilson Abed, for the complainant.

      Mr. Malcolm MacLear, for the defendant.
   Emery, Y. C.

Complainant in 1900 erected a wooden fence twenty feet high on the rear of his lots located on Waverly avenue, in the city of Newark. Two dwelling-houses are erected on the front of the lots and within about twenty-fire feet of the fence. At this time there were no ordinances ’regulating the height of fences, and it does not clearly appear that the premises on which the fence was erected were within the fire limits fixed by the common council. The revised ordinances (Bevision of 1902), adopted January 3d, 1902, by section 100 (p. SI) included the premises within- the fire limits, and provided (p. S3 § 103) that before the erection of any building or part of any building, structure or part of any structure, within these limits, the owner should, procure a permit from the superintendent of buildings. By section 105, subdivision c (p. 67), it was provided that “fences of wood shall not be erected over eight feet high,” and section 161 of the revised ordinances of 1902 (p. 98) provided a penalty of $50 for each violation or failure to comply with any provision of tire ordinance for a first conviction and a fine of $25 for each day’s continuance pf violation. At the time of the passage of this ordinance there was no special legislative authority giving the city authority to regulate the height of fences. On April 8th, 1903, a law was passed (P. L. 1908 p. 518) authorizing the common council of cities to regulate by ordinance the height and material of fences, and to provide for the removal, change or alteration of all fences, signs, billboards and advertisements “now or hereafter existing,” and the imposition of a penalty of $25 for any violation thereof. On June 19th, 1903, an ordinance was passed amending section 105, subdivision c, of the revised ordinances of 1902, and provided that the superintendent of buildings should have power to order the removal of any sign,.billboard or fence when, in his opinion, it shall become dangerous or unsafe, and in case of failure of the owner to remove on notice, the superintendent was authorized to remove tire same and enter the premises to do so. This ordinance also provided that “no fence shall be erected over eight feet high.” On September 5th, 1903, a further ordinance was passed giving the superintendent the power to order the repair or removal of any sign, billboard or fence which, in his opinion, is, or is likely to become, dangerous or unsafe, or is erected or maintained in a manner contrary to the ordinances of the city, and to remove the same after notice. On failure of the owner to remove, the superintendent was authorized to do so, and to enter the premises for that purpose. This ordinance provided no penalty for its violation. Before the bill was filed the defendant, as superintendent of buildings, served a written notice on complainant that he had erected and maintained a fence over eight feet high, “which is contrary to and in violation of the city ordinance,” and notifying complainant to have said fence removed within five days, or that the ordinance would be enforced. The bill charges and the answer admits that the fence referred to in the notice is the fence in question, and that defendant, the superintendent of buildings, intends to remove the fence. The notice to the owner to remove did not demand the removal because the fence was unsafe or dangerous, but the answer and affidavits set up that it is dangerous and unsafe, not by reason of the unsafe character of the structure itself, but because of danger in case of lire in the vicinity. This allegation is fairly contested by the affidavits filed in rebuttal, aaid so far as any right of removal is based on the ground that the fence is unsafe or dangerous on this account, it is admitted on the part of the defendant that complainant has a right to have the injunction retained until final hearing. The question mainly argued was the right of the superintendent to enjoin the removal of the fence on the ground that it was maintained contrary to the ordinance. The fence having been erected prior to the passage of any ordinance regulating the height of wooden fences or any law authorizing such ordinances, the complainant has plainly the right' to raise these questions in relation to the ordinance.

First. Whether the fence is maintained in violation of the terms of any ordinance.

The first ordinance (revised ordinances 1902) directing that “fences of wood shall not be- erected over eight feet high,” was prospective only, and so was the amendment of June 19th, 1903, that “no fence shall be erected over eight feet high.” The ordinance of September 5th, 1903, authorized the superintendent to remove any fence erected or maintained in a manner contrary to the ordinances of the city, but as the previous ordinances did not in terms prohibit the maintenance of fences more than eight feet high already erected, the fence in question apparently was not maintained contrary to the ordinance. The general rule is that mere police legislation of this character operates only prospectively and does not demand the sacrifice of existing physical property. Freund Police Power § 538; Buffalo v. Chadeayne, 134 N. Y. 163.

Second. The ordinance regulating the height of wooden fences was passed after the erection of the fence, and the fence not being in itself a nuisance which required immediate abatement in the interest of public safety, the owner is entitled to test the validity of the,ordinance as affecting his property, if it should be held to extend to the maintenance of an existing fence. Even a law requiring all frame buildings within certain limits to be taken down, or preventing their use, would probably be held unconstitutional. Freund Police Power § 538; Buffalo v. Chadeayne, 134 N. Y. 163. The application of the ordinance as well as its validity, if it be held to apply to complainant’s fence, can be tested by a prosecution for penalties prescribed by the ordinance of 1902, section 161, for its violation. The ex parte opinion of the superintendent of buildings that the maintenance of the fence is a violation of the ordinance is of no effect whatever as a judgment upon this question, and legisla-, tion giving it that effect would be unconstitutional. Hutton, v. Camden, 39 N. J. Law (10 Vr.) 122, 127 (Court of Errors and Appeals, 1876); Newark, &c., Horse Railway Co. v. Hunt, 50 N. J. Law (21 Vr.) 308, 314 (Supreme Court, 1888). The statute of 1903 authorizing ordinances regulating the height of fences specially authorized also the recovery of penalties for their violation, and in the absence of any claim on the part of the • city that the immediate removal is necessary for public safety, it is doubtful whether there is any remedy for'the removal of the fence other than the enforcement of th.e penalty directed by the statute. Pending such suit for penalty, and where no immediate public interest forbids, the complainant would seem to be clearly entitled to restrain the invasion and destruction of Ms property. Where the proceedings of the municipality, under the police power, for the removal or dispossession by summary process, without trial of the right, are such as can-be removed by certiorari, the summary proceedings will be set aside by the courts of law. Dawes v. Hightstown, 45 N. J. Law (16 Vr.) 127, 129 (Supreme Court, 1883); Avis v. Vineland, 56 N. J. Law (27 Vr.) 474 (1894). If the proceedings are not removable by certiorari, the owner’s right to retain the status quo, where the question, of right should be determined, has been protected by injunction. In Doughty v. Somerville, 33 N. J. Eq. (6 Stew.) 1, commissioners were enjoined from the summary removal of a. fence in the absence of any proceedings to determine its alleged encroachment on a street. No ordinance had heen passed specially directing its removal, and the commissioners were proceeding merely as ministerial officers. In Manko v. Chambersburg, 25 N. J. Eq. (10 C. E. Gr.) 168 (1874) (Runyon, Chancellor), there was a direction by the borough to the complainant to remove his buildings as an encroachment, and a threat on its part to remove if he did not. No ordinance or resolution specially directing the removal seems to have been passed. The removal was enjoined pending the trial of the right in the action itself. On a subsequent trial of the right at law, it was held that the borough had no right to the removal. Chambersburg v. Manko, 39 N. J. Law (10 Vr.) 496 (Court of Errors and Appeals, 1877). In Tainter v. Morristown, 19 N. J. Eq. (4 C. E. Gr.) 46, 58 (Zabriskie, 1868), the destruction of fences, shade trees and shrubbery was said to be an irreparable injury, which complainant was entitled to enjoin if unauthorized. At the argument I suggested to counsel that a certiorari of the ordinance, which would operate as a stajq might suspend the action of the superintendent pending the decision of the question, and that tills application to a court of law might be first made. But the ordinance itself is general and does not specially apply to the complainant, and may be valid as against other persons who have erected fences since its passage, and it seems to be settled by the later cases at law that its validity on certiorari cannot be contested by complainant until judgment, for penalties for its violation is obtained against him. Pennsylvania Railroad Co. v. Jersey City, 47 N. J. Law (18 Vr.) 286, 289 (Court of Errors and Appeals, 1888); Gas Light Co. v. Rahway, 58 N. J. Law (29 Vr.) 510, 511 (Supreme Court, 1896). The reason is that ordinances which are general and not necessarily unreasonable or invalid in ioio as to all persons affected by them cannot be set aside altogether, which is the effect of a judgment against its validitjr on certiorari, and if the ordinance is invalid to a limited extent, and only against the prosecutor and others similarly entitled, the method for testing, its validity is by objecting to the validity of the ordinance as against them in the penal suits brought for violation. The earlier cases, and also Morgan v. Orange, 50 N. J. Law (21 Vr.) 889 (1888), referred to by defendant's counsel, sustaining the writ of certiorari to such general ordinance before or without judgments in penal suits, have been said to be overruled by these later cases. Hamblet v. Asbury Park, 61 N. J. Law (32 Vr.) 502 (Supreme Court, 1898). The ordinances in question cannot, I think, be said to be certainly and necessarily unreasonable or invalid as to fences subsequently erected, and could not therefore, under the above cases, be set aside on certiorari removing the ordinances, even if invalid as against complainant. The other cases on certiorari to ordinances specially affecting property, referred to by the counsel for the city, are cases where the ordinances on their face affected the property the prosecutor was .proved-to own, or rights he was entitled to enjoy, and were set aside altogether. Outside of the general ordinances in this case, referring apparently to fences thereafter erected, there is no record or proceeding which the certiorari could remove. The notice by the superintendent is a mere ministerial act, and I know of no ease at law which makes such mere ministerial proceedings the subject of judicial inquiry by certiorari. Manifestly the only ground of relief to complainant is the intention of the officer, admitted by the answer, to execute the notice and remove complainant’s property under a claim of right. Such threat and claim is, in the absence of a remedy at law, ground for an injunction pending hearing, if the right of complainant is one of a character which requires it. The fence in question is a structure erected by complainant on his own lands and is maintained in connection with the use and enjoyment of his dwelling-houses erected on the lots. Rights of this character are constantly protected by injunction, and the propriety of an injunction, if there was no relief by certiorari, was not contested at the argument. The removal is threatened by a public officer of the city, claiming the right to destroy property of a private owner, under authority given to him by' an ordinance of the city. Whether he has such authority is at least doubtful, and as against a municipality exceeding its statutory powers by a destruction of property of this character, used in connection with dwellings, the owner is entitled to have -the question of right tried, either in this court or at law, and in the meantime to have the present status maintained. As an injunction pending determination is the only method of securing this status, he is entitled to an injunction until final hearing. Whether on the final hearing the question of the application and validity of the ordinance will be finally determined, or the cause be directed to stand over pending determination by proper proceedings at law, is not now decided. Complainant should, I think, before final hearing, make the city a party defendant, in order that the city may formally adopt or repudiate' the action of the defendant under the ordinance.


author: Stevens, V. C.

text:
    Henry W. Doremus et al.
      v. The Mayor and Aldermen of the City of Paterson.
    [Filed March 26th, 1904.]
    .: 1. The. act of 1903, entitled “An act to relieve from pollution the- rivers and .streams within the Passaic Valley sewerage district,” &c., is not a bar to the right of riparian owners whose lands are below the point of pollution to have an injunction against or compensation from the city of Paterson upon the principle laid down in Simmons v. Paterson, 60 N. J. Eq. (15 Dielc.) 385.

    2. If a bill by husband and wife, filed in respect to an injury to the wife’s land, does not show that there is issue, upon the birth of which the husband would become entitled to an estate by the curtesy consummate on'her death, such bill is demurrable. If such bill should show the birth of issue and an injury to the husband’s right, the proper practice would be to make him defendant, he being a necessary party thereto.
    On demurrer to amended bill.

      Mr. George 8. Hilton, for the demurrant.

      Mr. Sherrerd Depue, for the complainants.

      This opinion was omitted from its proper place.

   Stevens, V. C.

The defendant demurs to the amended bill. The ease stands thus. In Simmons v. Paterson, 60 N. J. Eq. (15 Dick.) 385, on information and bill filed, it was held that Jersey City had no standing to restrain the city of -Paterson from polluting the Passaic river, but that if the riparian owners would, in the language of Mr. Justice Van Syckel, “amend their bill or file a new bill asking for an injunction, unless the city would consent to make such compensation for the diminution in the value of their lands as should be ascertained to be just, such equitable relief could be given to them.”

Acting on this suggestion, the riparian owners did file a new bill, in which, however, were joined co-complainants not only riparian owners, properly so called, but two other classes of persons, namely,-those whose lands adjoined, not the Passaic river, but the artificially constructed Dundee canal, the waters of which were drawn from the river, and certain lessees of mill power, to whom the Dundee company had leased water rights. I thought that under the authority conferred upon the Dundee company by its charter, which empowered them to lease rights in gross to water power, these two' latter classes of persons were entitled to have those rights protected, the pollution of the stream being as injurious to them as to the riparian owners themselves. On appeal the court of errors and appeals adjudged otherwise. Mr. Chief-Justice G-ummere said: “In the case now under consideration the city of Paterson is not seeking to acquire any right of the lessees or grantees of a lower riparian owner. They concede that such lessees and grantees have rights, * * * but they contend that those rights are subordinate to the city’s right to vent its sewage into the stream. This contention, in our opinion, is sound.” The right of the riparian owner properly so called “to an injunction restraining the pollution of the river by the appellants, unless the latter make just compensation .to him for the diminution in the value of his property occasioned thereby,” was expressly reaffirmed.

notwithstanding this reaffirmance the argument of the counsel of the city was largely based upon the assumption that the decision was erroneous. As, however, it cannot, at least, be questioned here, I shall only notice tiróse new points' which have not been discussed before and which have not been concluded by the judgment of the court o.f review.

Counsel contends in the first place that the act of 1903 (P. L. 1903 p. 777) has taken away the complainant’s right to an injunction, or, at the election of the city, to compensation. The argument on this act is that inasmuch as it authorizes the construction of a trunk sewer to commence at or near the valley of rocks in Paterson and to extend into Few York bay, this sewer, when constructed, will afford air outlet for Paterson’s sewage, and the -nuisance which injuriously affects complainants’ property will cease. His conclusion is that this being so, the court either cannot or ought not to exercise its injunctive power. The argument necessarily rests upon the assumption that the sewer will be constructed, and that Paterson will use it. Counsel for complainants suggests that Paterson, while making this argument here, is contesting the constitutionality of the act in the supreme court. He does not ask me to pass upon its validity, nor shall I attempt to do so. That is now being done by the supreme court. I will consider its provisions on the assumption that it is valid.

In the first place, it does not confer any powers upon Paterson. Its powers are vested in a board of commissioners.

In the second place, it is not, in terms, mandatory. Section 4 provides that the board “is hereby given full power and authority to make, construct, maintain and operate intercepting, main, trunk and outlet sewers,” &c. Their authority to do any work is made by section 5 to depend upon the result of an investigation by them “whether the discharge into Few York bay is .likely to pollute the waters of said bay within the jurisdiction of the State of Few York to such an extent or in such a degree as to cause a nuisance to persons or property within said state.” They are to present the result of their investigation to the governor, with their opinion and the reasons therefor, and thereupon the same are to be considered by the governor and the attorney-general. Fo work is to be done unless the attorney-general shall in writing advise that .no cause of action for damages or an injunction will arise in favor of'the State of Few York or its inhabitants, and unless the governor shall in writing advise “that in his judgment it is safe and prudent to proceed with the work, due regard being had to all the risks and dangers of injunctive litigation.”

Going no further, is it not manifest that an act so framed cannot be a bar to the present suit ? In the first place, the work of construction cannot begin until the commissioners, the attorney-general and the governor each independently conclude that no cause of action -for damages or an injunction will arise in favor of the State of Uew York or of any of its inhabitants.

In the second place, even if the permissive language of section 4 should be construed by the courts to be mandatory, a wide latitude is necessarily given to the commissioners as to the size of the sewers, their location and the time within which the work or any part of it shall be done. It may become necessary not only to construct a trunk or intercepting sewer, but also branch sewers. By section 5 it is made (inter alia)' the duty of municipalities to cause their sewers “to be connected with' and to be discharged into the sewers constructed by the sewerage commissioners when the' same shall have been constructed and at the places which shall have been designated for that purpose by the sewerage commissioners.” Whether'the respective municipalities will discharge all or only a part of their sewage into the sewers thus built, will depend upon their size and location, and, to some extent at least, upon the judgment of the commissioners. By section 20 these commissioners are vested with powers, exclusive of all other boards, to protect the rivers of the sewerage district from pollution,- and they may prohibit the discharge of any sewage into such rivers, and they may apply for an injunction, but whether they will or not, will depend upon what they themselves may have been able to accomplish with the funds at their disposal.

There is nothing in this act which indicates that at any definite future period Paterson must or will altogether cease to empty its sewage into the Passaic. All that can be said is that there is a greater likelihood now, than at any previous period, that at some time'in the future the pollution of the river will cease, either in whole or in part. To say that because -of this likelihood of something being done at some indefinite future period by the commissioners, Paterson will, in the meanwhile, liave the right to appropriate to itself the property of others without paying, for it, is to advance a proposition contrary to all legal principle.

If Paterson were able to name some day certain after which it would cease to injure tire complainants, questions might arise in reference to the quantum of compensation that are not now before the court. If the day named .were a short one, it might even be open to discussion whether, in view of the delay in instituting these proceedings, any compensation, based upon the notion of an appropriation of private property for public use, should be given in this court;—whether, as counsel argues, the complainants should not be left to their actions at law. But as the act of 1903 stands, and as the facts are presented by the bill, no foundation for any such argument exists.

In the next place, it is contended that it does not appear that certain of the complainants did not become the owners of their lands after the diminution in the value thereof or of the greater part thereof had already taken place; and as to Garret Terhune that it appears affirmatively that he did become the owner of his land after such diminution. I fail to see the force of this objection. The nuisance alleged is a continuing and increasing one. Every continuance of a nuisance is held to be a fresh one, and therefore a fresh action will lie. Sedgw. Dam. (8th ed.) § 924; Delaware and Raritan Canal Co. v. Wright, 21 N. J. Law (1 Zab.) 469. “A nuisance continues momentarily, so that damages may be recovered up to the time of bringing action.” Ii. The court of errors and appeals have decided that a wrong is being done to the complainants by the nuisance in question. To prevent its continuance they say that the complainants are entitled to an injunction unless the city will make compensation for the diminution in value of their lairds. This wrong is that which the present owners are suffering and will continue to suffer as long as the nuisance lasts.

How much compensation any particular owner may be entitled to, is now immaterial. If entitled to any, he has a standing in court.

' The twentieth cause of demurrer is as follows:

“It does not appear from the said amended bill that the complainants Jacob H. Van Saun, Peter I. Kipp, Samuel Phillips and John E. Mercilis or either of them have or has any such interest in any of the lands or XJroperty rights involved in this cause as makes them or either of them proper parties complainant therein, and they are therefore misjoined as such complainants'.”

The complainants above named are made parties because of the ownership of the lands by their respective wives. The legal question here presented, which is an important one, is involved in some doubt because of certain expressions to be found in the opinion, to which I will refer. It was intimated on the argument that an appeal would be taken, whatever the decision on the other questions in controversy, and if taken it will afford an opportunity of setting this question at rest.

That it may be clearly presented, I may be pardoned if I quote some elementary law. ‘ Before issue born, the husband, by the common law, had, in his wife’s land, an estate of freehold during their joint lives. “Though by our law, it is said in a note by Hargrave to Coke’s Littleton (Co. Litt. 326a), a woman does not now communicate her rank or titles of honor to her husband, yet the freehold or right of possession of all her lands of inheritance vests in him immediately upon the marriage.” After issue, born alive, capable of inheriting the estate, the husband acquired an estate of freehold yvhich continued for his own life. It was termed an estate by the curtesy initiate during his wife’s life, and it became consummate on her death. What the Married Woman’s act did was to deprive the husband of the freehold during his wife’s life. Naylor v. Field, 29 N. J. Law (5 Dutch.) 287. He no longer held a freehold estate in possession. It did not affect the estate which he took after her death. Upon that event he became entitled to a freehold interest in possession for his own life. Of this estate his wife could not by will or deed deprive him. I have never been able to understand why the husband has not, under these circumstances, an estate in remainder in his wife’s land, which is as completely vested in him as any vested estate in remainder for life is ever vested in any remainderman. There is this contingency attending them both, viz., that the remainderman may die in the lifetime of the prior tenant, in which case he may not enjoy his tenancy. But if there be anything settled at common law, it is that this contingency or possibility alone does not, in the case of a remainderman, malee his remainder what is technically known as a contingent remainder.

Now an elementary rule of equity pleading .is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit must be made parties to it. This rule, in its application to the situation here presented, is thus stated in Story Eq. Pl. § 165. He says:

“Upon similar grounds, where there are divers persons, having in succession an interest in particular property as A for life and B in remainder, then if a bill be filed to transfer the property or in any other manner to touch the rights and interests of all the parties,- they must all be made parties to the bill.”

and see, also, sections 144, 147.

It would seem, therefore, clear that after issue born the husband has such an interest as would make him a necessary party to any suit that might touch or affect his interest in his wife’s land after her death. Vice-Chancellor Dodd applied the rule in Tunnard v. Littell, 23 N. J. Eq. (8 C. E. Gr.) 269, and quoted from the opinion of Chancellor Green in Johnson v. Vail, 14 N. J. Eq. (1 McCart.) 428, the following: “There are numberless cases in which the wife has been allowed, through the medium of her prochein amiy, to sue her husband in respect of her separate property; but I have not been able to find any case, either at law or in equity, in which she has been- allowed to sue or be sued by a stranger merely, in respect of her separate property, without her husband being plaintiff or defendant.”

Chancellor Runyon, in Castner v. Sliker, 43 N. J. Eq. (16 Stew.) 8, overruled a. demurrer to a bill for partition brought by the wife alone. The ground of demurrer was that the husband was not made a party. If the bill, as would seem probable, showed merely that the husband was in esse, and did not show that there was issue born alive, this ruling was clearly right, and the reasoning on which it was based was sound. The freehold estate for their joint lives which the husband had at common law, immediately upon the marriage and before the birth of issue, was destroyed in toio by the Married Woman’s act. Consequently it did not appear that the husband had any interest. Birth of issue could not be presumed. As by force of section 11 of that act, the wife was permitted to maintain an action in her own name, and without joining her husband, for the protection and recovery of her property, real as well as personal, it followed, as a matter of course, that her husband was not a necessary party to the suit, for he did not have, or, to speak more accurately, was not shown to have had any'interest. But if it was intended to go further and.to hold that even if it had appeared that there was issue born, the husband was not a necessary party, then a different question would have arisen, viz., was a husband, having an interest the equivalent of a vested estate in remainder for life, -a necessary party in respect of that interest ?

The chancellor relied upon Porch v. Fries, 18 N. J. Eq. (3 C. E. Gr.) 204. There Samuel Fries, who had married Martha, an infant, joined with her in a demise of timber lands for a term of years, with the privilege1 of cutting wood and timber thereon. She died before she became of age, and the lessees had felled some timber before her death. Upon that event the complainants, her heirs-at-law, filed a bill for an injunction to restrain the further cutting of timber. It was held, inter aMa, that because she was an infant her lease was void; that the growing timber was a part of the realty of which her husband in his character of guardian could not dispose, and that as husband he had no estate in her land during her life, although he took as tenant by the curtesy at her death. It was held accordingly that inasmuch as an estate by the curtesy consummate was only an estate for life, and inasmuch as a tenant for life could not commit waste, and therefore could not authorize others to commit it, the complainants were entitled to an injunction. The bare statement of this case shows that it is only an authority for the proposition that the Married Woman’s act is, in the language of Chancellor Zabriskie in that case, “inconsistent with the estate by the curtesy initiate,” but not with the curtesy consummate. This has become a settled rule of property in this state. Said Judge Depue, in Cushing v. Blake, 30 N. J. Eq. (3 Stew.) 697: “The Married Woman’s act most effectually makes the estate of the wife her separate estate, and yet it has not abolished the husband’s curtesy after her death.” It is very evident, therefore, that Porch v. Fries is not an authority for the position that after the birth of issue the husband is not a proper party to a suit which will affect his own interest. It dealt with no such question.

Young v. Young, 45 N. J. Eq. (18 Stew.) 27, was also decided by Chancellor Runyon. He there held that a married woman might maintain a suit for a specific performance of a contract to convey land to her, in her own name, without joining her husband. This decision is sustainable on the theory that the husband has no interest until conveyance made. Under our statute it is within tire power of the wife to enforce or refuse to enforce the contract and to enforce it either at law or in equity, as she may elect.

In Barrett v. Doughty, 25 N. J. Eq. (10 C. E. Gr.) 379, on a bill filed by husband and wife to obtain a reconveyance of land conveyed, the same chancellor, on the principle that I will refer to presently, ruled that the husband should be made defendant instead of complainant. He made substantially the same ruling in Paulison v. Van Iderstine, 28 N. J. Eq. (1 Stew.) 306.

The last two- cases do not touch the question under consideration. They rest upon the authority of Johnson v. Vail, 14 N. J. Eq. (1 McCart.) 423, and are decided upon the principle there laid down. That was a case in which the wife by her husband and next friend filed a bill for the protection of her separate property against the creditors of the husband. The wife was the owner of a farm in her own right and the sheriff, by the direction of an execution creditor of the husband, had levied upon the growing crops. It was objected that the husband, who had appeared only as next friend to his wife, was a necessary party to the bill. Chancellor Green held that he was a necessary party.. He also held that he should be joined as defendant and not as complainant, on two grounds—first, because if husband and Wife joined as co-complainants or co-defendants it would be considered as the suit or defence of the husband alone and would not prejudice a future claim by the wife, in respect of her separate interest, and she would not be bound' by any of the allegations therein in any future litigation; second, because persons having adverse interests ought not to join as co-complainants, and in the ease under consideration the interest which the creditor claimed as being in the husband was adverse to the claim of the wife. The reasons for this are so fully stated in that ease and in Wake v. Parker, 2 Keen 73, that it is unnecessary to repeat them.

Another ease is Bristol v. Skerry, 64. N. J. Eq. (19 Dick.) 624 It was there held by Vice-Chancellor Grey, principally on the authority of Johnson v. Vail, that on a bill by husband and wife to restrain the defendants from raising a dam and causing the waters of a stream to flow back upon the wife’s land, the husband was not a proper party complainant, but was a proper, though not a necessary, party defendant.

These are all the cases in our equity reports which appear to bear upon the question. There are three eases at‘law which should be mentioned. The first is Ross v. Adams, 28 N. J. Law (4 Dutch.) 160. Land of the wife conveyed to her after marriage, and after the passage of the Married Woman’s act, had been condemned for the purposes of a railroad, and the money had been paid into court. The question was how it should be disposed of. The supreme court held, among other things, that the clerk of the court should calculate the value of the husband’s interest, i. e., the present value of the estate by the curtesy which would have come to him at his wife’s death had the land not been condemned. The case was reversed in- the court of errors and appeals, 34 N. J. Law (4 Vr.) 505, not upon the ground that if the husband had an estate by the curtesy he was not entitled to a part of the money, but because, upon the proper construction of the deed, the wife took only a life estate, there being ho words of inheritance in the granting part of.it. In State v. Hulick, 33 N. J. Law (4 Vr.) 307, under a statute which required the surveyors of highways to assess the damages which the owner of any land taken would sustain, it was held by Judge .Woodhull, on-the authority apparently of Porch v. Fries, supra, which, however, holds no such doctrine, that the surveyors were right in not naming the husband as owner and in not assessing damages either to him separately or to him and his wife jointly. This decision would not accord with the prior decision of the supreme court, to which I have just referred, if there was in the case proof of issue born. The report does not show that there was. If there was not, the two cases are entirely reconcilable. In Trade Insurance Co. v. Barracliff, 45 N. J. Law (16 Vr.) 543, it was held by the court of errors and appeals that a husband who with his wife was in the occupation and enjoyment of her real estate, in which he had an inchoate right of curtesy, had an insurable interest therein. Mr. Justice Dixon, in his opinion, quotes as supporting his view the case of Ross v. Adams.

In view of this course of decision, I think it may be affirmed that it has never yet been expressly decided that after issue born the husband is not a necessary party in equity to any suit which touches or affects his right to curtesy after his wife’s death. To so hold would be to create an exception to the general rule regarding parties which could not be sustained on principle, and which might in some cases lead to the destruction of the right.

Coming to the case in hand, I think the demurrer must be sustained. There is no allegation of issue born alive, capable of inheriting the estate. Had there been such an allegation, I think it would have appeared that the husbands had an interest in the controversy and that they were necessary parties. The bill as it stands does not show any interest on their part. If it should, then the correct practice would be to make the husbands defendants, because the suit relates to the separate estates of their wives. In the case in which this was held (Johnson v. Vail, supra), Chancellor Green further declared that the wife’s bill should be exhibited in the name of her next friend. But this was said in the year 1862 and before the enactment of section 11 of the Married Woman’s act. By the explicit language of that section-she is authorized to maintain an action in her own name “for the recovery and protection of her property as if she were an unmarried woman." This statutory authority clearly does away with the necessity of appearing by next friend.


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    Pauline Sternberger v. Berthold Sussman et al.
    [Decided February 28th, 1905.]
    1. He who has two funds for the satisfaction of his claim shall not, by electing to resort to the singly-charged fund, disappoint him who has that fund only to resort to.
    2. This rule is subject to this, among other qualifications, viz., that both funds must be within the jurisdiction and control of the court, except in the rare cases in which it is clear that the creditor having the two funds will sustain no loss, delay or additional expense, if required to resort, first, to the fund without the jurisdiction.
    3. Where there is a paramount mortgage upon land, part of which is conveyed by the mortgagor, equity will throw the burden upon the land that remains where the grantee has paid full value or where the grantor has covenanted against encumbrances. But, the rule being based upon intention, expressed or implied, it will not obtain, in favor of a purchaser, at a sheriff’s foreclosure sale.

      Mr. J. Bayard Kirkpatrick, for the complainant.

      Mr. Frank P. McDermott, for the defendants.
   Stevens, V. C.

This is a suit to foreclose a mortgage upon an undivided interest in lands in Monmouth county. It is admitted that the mortgage is a valid instrument and a first lien, and that the money secured is due. The only defence is that complainant’s mortgage is also a lien upon lands in the city and State of Yew York, and that, as these lands are apparently an adequate security for the money, the mortgage should be first foreclosed in the courts of Yew York, and that only in the event of a deficiency there should the first mortgagee be allowed to continue his suit here. This defence is made by a person who was formerly a second mortgagee of the land that', is being foreclosed in Yew Jersey, but who has himself foreclosed here and became the purchaser at the foreclosure sale.

The principle invoked is that he who has two funds for the satisfaction of his claim shall not, by his election, disappoint him who has only one, and that equity, to satisfy both, will throw him who has the two upon the fund which he alone possesses, so that the other fund may remain clear to him who has but the one. Aldrich v. Cooper, 8 Ves. 382. This rule is subject to several qualifications, and among them, I think, to the qualification that, except in very special cases, both funds must be within the jurisdiction and control of the court. Lewis, Trustee, v. United States, 92 U. S. 623; Aldrich v. Cooper, 2 Lead. Cas. Eq. (3d Am. ed.) 276, Am. note; Ad. Eq. (8th Am. ed.) *272, note. There seems to have been some divergence of view on this subject. In the York and Jersey Steamboat Ferry Co. v. Associates of Jersey Co., Hopk. Ch. 522, it was held by Chancellor Sandford, in New York, that a mortgagee having a lien upon boats in that state and also upon lands in New Jersey would be required, at the instance of a mortgagee of the boats only, to first proceed against the New Jersey land. The case has been questioned, and both on reason and authority it is clear that' this course of procedure should be taken only where it is manifest that the creditor having the two funds will not sustain any loss, delay or additional expense by being required to adopt it. A case of this sort would rarely occur in practice. The second mortgagee may be protected by requiring the first mortgagee to place his remedies at the disposition of the second mortgagee after they have served the purpose of satisfying his own debt. 2 Lead. Cas. Eq. (3d Am. ed.) 276.

In the ease in hand it is argued by defendant that there are special circumstances. It is said that the property in New York is an adequate security for the complainant’s claim. All that it seems to me that the evidence shows is that it may be. The mortgagor appears to have the legal title to an undivided interest in valuable New York propertjr, but what Ms beneficial interest may be, how far it may be encumbered or available, does not clearly appear. It is evident that tire foreclosure of tire first mortgage there will necessarily be attended with delay and expense. The first mortgagee should not, therefore, be compelled to litigate in Mew York at his own costs for the benefit of the answering defendant. Assuming that the facts of this case are such as to present the question, the defendant must fail in his contention.

It is argued further that the second mortgagee, by reason of her purchase at the foreclosure sale, now stands in the position of a purchaser for value. The principle invoked is that where a mortgagor for valuable consideration conveys away a part of the mortgaged premises, the portion retained is in general primarily liable for the payment of the mortgage debt. Mills v. Kelley, 62 N. J. Eq. (17 Dick.) 213. But this principle has no application to the facts of the ease. The defendant’s grantor is not the mortgagor, but the sheriff. The statute provides that on a foreclosure sale by that officer no greater estate in the premises sold shall at any time be conveyed or granted “than would have been vested in the mortgagee had the equity of redemption been duly foreclosed.” P. L. 1902 p. 529 § 54. Had a strict foreclosure been resorted to, the decree would have adjudged that the mortgagor be divested of his equity of redemption. That would have been all. The burden of the prior encumbrance would have remained, as before, because there would have been nothing done to vary it. But precisely the same result has been effected by the foreclosure sale. The second mortgagee purchased that legal title which he himself had all the time been holding, divested, however, of the equity of redemption. It is difficult to understand how this act alone could have had the effect of shifting the burden of the first mortgage—of throwing a heavier burden upon the Mew York land.

But there is another way of looking at it. It is said in Mills v. Kelley, supra, that the ground upon which equity throws the burden primarily upon the land that remains, after conveyance of a part, is either that the grantee, having paid full value for what he buys, ought not to pay any more, or that where the consideration is not valuable, the grantor, having covenanted against encumbrances, is bound to make that covenant good. The rule, says Vice-Chancellor Pitney, in Gray v. Hattersley, 50 N. J. Eq. (5 Dick.) 211, is based upon the intention of the parties, either expressed in the writing passing between them or implied from the facts and circumstances of the case.

If it had been shown that a mortgagor had covenanted with a grantee of property in New Jersey that the land was free from encumbrances, and if it had appeared that it was, in fact, encumbered by a mortgage which covered not only land in New Jersey, but also land in New York, then a question would be presented analogous, at least in some respects, to that first discussed. The question would have been whether, because of an act done by the mortgagor subsequently to the making of the first mortgage, the court would have compelled the first mortgagee to exhaust his remedy in New York before allowing him to proceed in New Jersey. But the very foundation for the contention would be the act of the mortgagor—the act of an owner able, as between himself and the subsequent purchaser, to throw the burden of the first mortgage where he chose. No one would for a moment imáginc that the mere act or intention of the purchaser could shift the burden. No one would assert that the statute gave the sheriff express authority to shift it. If then the burden were shifted, it would be by the inherent force of the conveyance—the mere act of transfer. But, as a matter of conveyancing, it is perfectly possible to convey title to land without Changing the'burden of prior encumbrances. Indeed, it is said by Vice-Chancellor Emery, in Jackson v. Condict, 57 N. J. Eq. (12 Dick.) 522, 526, that on a conveyance, “as between different portions of the premises subject .to a common charge, the general and fundamental rule of equity is that the burden is to be borne by the different portions ratably.;" and that this rule would only be departed from where the intention of the parties was shown to be otherwise. Consequently the burden would, in the absence of evidence to the contrary, remain as it was. And this conclusion is fortified by the statutory direction before quoted, that on a foreclosure sale no greater estate will be conveyed “than would have been vested in the mortgagee had tire equity of redemption been duly foreclosed." To regard the legal title of the first mortgagee as, in a measure, modified for tire benefit of the purchaser, by the mere act of selling, would seem to be opposed to the spirit and purpose of the enactment.

This result' is perfectly just. The second mortgagee had notice of the first mortgage when she took her own security. She foreclosed and bought in with notice. She does not stand in the position of one who has paid a full price for an unencumbered property. She says in her answer that the sheriff conveyed to her all the rights of the defendants in the foreclosure suit, but she 'does not say what price she paid. She does not, in her answer, base any right upon her payment. The sheriff’s deed states that the consideration was $1,000. The mortgagor’s interest in the property is admittedly worth much more than that. If the burden of the mortgage be thrown on the Hew York land the second mortgagee will get the property for a very inadequate price.

But there is another difficulty with the defendants’ ease. Originally the mortgages covered the same property, both here and in Hew York. As matters now stand, the defendant has a second mortgage on property in Hew York and the complainant a first mortgage on property there and here. The defendant could, with more plausibility, insist, in the Hew York courts, that the complainant should first exhaust his security here before he foreclosed there than now insist that he must sue there before he can sue here. The defendants’ case, in every aspect of it, seems untenable.