text:
    Charles Siedler, App’lt, v. Edward T. Bell et al., Adm’rs, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Executors and administrators—Accounting—Corporations.
    Plaintiff and defendants’ intestate, with others, undertook to form a railroad company, of which intestate acted as treasurer. Plaintiff subscribed for stock, on which he made a payment. In an action against defendants for an accounting it was found that the intestate paid out in furtherance of the enterprise all the money received by him on the sales of stock; that it was done with plaintiff’s knowledge and consent, and that the intestate had accounted for all moneys in his hands to the general manager of the company. Held, that the complaint was properly dismissed.
    Appeal from judgment dismissing the complaint with costs.

      Henry C. Andrews, for app’lt; W. J. Groo, for resp’ts.
   Dykman, J.

—This is an appeal by the plaintiff from a judgment which dismissed his complaint, with costs.

The action was against the administrators of the estate of Henry R. Low, deceased, for an accounting, and it appeared upon the trial that the plaintiff with Low and some others undertook to form a railroad company for the construction of a railroad along the west shore of the Hudson river, and by agreement of the parties Low was to act as treasurer.

He was to proceed with the work of locating the road and procuring the right of way arid pay the expenses of that work from the money received as such treasurer.

The plaintiff, in this action made á subscription for $10,000 of the stock of the new company, and paid $1,000 on account thereof, which went into the hands of Low and was practically all expended for the purposes contemplated.

The trial judge has found that Low paid out and expended all the money received from the plaintiff and other subscribers in, furtherance of the enterprise, and that such disbursements were-made by Low with the knowledge and consent or approval of th& plaintiff, and further that Low had' accounted for all the money which- came to his hands as such treasurer to Delos E. Culver, the-general manager of the proposed company. These findings are-all fully sustained by the evidence, and the judgment should be affirmed, with costs.

Cullen, J., concurs; Barnard, P. J., not sitting.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Frederick A. Phillips, Jr., Resp’t, v. Maria N. Winne, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Service—-Substituted.
    Proof that the sheriff had made repeated efforts to serve the summons and had been unable to find the defendant; that plaintiff’s attorney on calling at her residence was informed that she had gone away to be gone for some time, and was refused information as to where she had gone or when she would return, is sufficient to authorize an order for substituted service.
    Appeal from order denying motion to set aside an order for substituted service of summons.

      Mooney & Shipman, for app’lt; Frank H. Gray, for resp’t.
   Barnard, P. J.

—This action was brought to foreclose a mortgage: The defendant Winne resides at 226 First street, Albany, N. Y. An order for substituted service upon her of the summons was made and an order was granted at special term denying a motion to set aside the order for substituted service. The-order was properly granted under § 435, Code of Civil Procedure. The defendant Winne resided within the state. The return of the sheriff shows that he repeatedly called at her residence and was not able to find her; that he was told on each occasion that she was not in, and that he was not able to serve the summons-personally upon her. The plaintiff's attorney then went with the summons to her residence, and was unable to find the defendant. That the person who answered his call stated that the defendant, had been to Schenectady; had returned and stayed a few hours, and had again gone away to be gone for some time; that she did not care to say where she had gone, or when she would return; that the defendant had received all mail matter previously sent to her, and would receive such matter thereafter. The facts fully established that a proper and diligent effort had been made to serve the summons upon defendant, and that the place of her sojourn could not be ascertained.

The order should therefore be affirmed, with costs and disbursements.

D nor an, J., concurs; Cullen, J., not sitting.


text:
    Christian Jourgensen, Resp’t, v. Benjamin D. Traitel et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Lease—Time of commencement.
    Plaintiff let to defendants the top floor of a building for five years, and a memorandum of the leasing was made which provided that a formal lease was to be delivered before May 1, and the repairs should be completed by the 15th. This top floor was to be made by raising the building. The repairs were not completed until June 2 ; but defendants stored their machinery on the top floor. No formal lease was ever signed. Held, that a finding that the lease was to commence May 1 was correct.
    2. Same—Power.
    The memorandum of leasing also included the furnishing of steam power of “four horse power pulley face.” Held, that this implied that defendants were to have that amount of power for their own use, and that it was not enough to give that power at plaintiff’s pulley without allowing for loss of power in transmission.
    Appeal from judgment in favor of plaintiff, entered on report-of a referee.
    Action for rent and for additional steam power.

      Herman Frank, for app’lts; Blair, Rudd & Simis, for resp’t.
   Barnard, P. J.

—On the Sd of April, 1884, the plaintiff agreed to lease to the defendants the top floor in 96 and 98 Maiden Lane, Hew York. A memorandum of the agreement was signed and a formal lease was to be executed, which was never done. The lease was to be for five years. The premises called the top floor were not in existence when the memorandum was signed, but was to be made by raising the buildings on the lots. The lease was to be delivered before May 1, 1884, and the work was to be finished on or about May 15, 1884. The rent was to .be $1,200' per year, payable monthly, and the leasing included the furnishing' “ four horse power pulley face.” The premises were not completed until early in June, 1884. In the interval between the 1st of May, 1884, and the completion of the premises, the defendants’ machinery was stored in the then top floor of the buildings or one of them. When the power was tested by actual experience, it was found insufficient to run the machinery, and the parties differed as to the fact of four horse power pulley face being given. The defendants, at all events, required more power and promised to pay for all furnished over four horse power in addition to the rent. The defendants were nearly or quite all of June in fitting their machinery, and have paid the rent after the 1st of July, 1884, regularly. The plaintiff seeks to recover rent for the months of May and June, 1884, and also for additional power furnished under the agreement. As to the month of June, 1884, there can be no question of the right of the plaintiff to the rent. The premises were ready for occupancy on or about the 1st of June, 1884, and on the second the defendants took possession. The defendant testifies that plaintiff agreed to charge no rent until the defendants could get into the premises, and work. The plaintiff denies this emphatically ; “I never in any of these conversations released them from the payment of the two months rent." The memorandum necessarily implies that the lease was to commence May, 1, 1884, for it calls for the delivery of the formal lease before that time. The formal leases proposed all so stated the contract to be. Upon one of the leases the defendant made his objection to the terms of the lease in some respects, but no suggestion was made that the lease was not to commence May 1, 1884, and that the rent was to be monthly from that time. The memorandum gave the plaintiff until on or about the 15th of May, 1884, to finish the premises. The defendants actually had their premises upon the top floor of the building as it was before the repairs were completed. I think the finding that the agreement was that the lease was to commence May 1, 1884, is supported by the evidence.

The question of fact whether more than four horse power was furnished was the subject of very contradictory evidence. The plaintiff testifies that the larger pulley which was put on to obtain more power will give from six to eight horse power, and that he knew the facts, and that at the speed at which the plaintiff’s shaft revolved during the defendants’ occupancy the minimum power rendered to defendants was over five horse, and that the market price of power was two dollars per week. ^ The witness Pierce, a machinist, testifies that the first pulley would carry four horse power pulley face and with the larger one put on that it would take six horse power to run the defendants’ machinery. The defendants produced evidence tending to show that no more than four horse power was furnished, and the referee has found that one additional horse power was used, worth two dollars per week. The case is not clear whether or not the referee found that the five horse power used by defendants was based upon the power at the plaintiff’s pulley or at the defendants’ pulley. I think the agreement was intended to give the defendants four horse power for their use, and that it was not enough to give that power at the plaintiff’s pulley without allowing for the loss of power lost in transmission to the defendants’ pulley. The first lease made out by plaintiff rents “four horse steam power,” the amount of power actually used to be determined by mechanical device. The second lease refers to the power “ on premises of C. Jourgensen, on store floor." Neither of these leases were signed, as has been stated. The findings do not show whether the power was calculated at plaintiff’s or defendants’ pulley. There is one exception which seems to show that the calculation was made at the plaintiff’s pulley. The plaintiff at folio 176 of the case is asked whether power would be lost in transmission from the pulley of plaintiff to that of defendants. The question was ex-eluded on the ground that plaintiff had testified to power as given at one place and that the question asked for amount of power at another place.

From this ruling it seems that the referee based his report upon the amount of power given at plaintiff’s pulley and not upon the-power actually used by defendants.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event, unless the plaintiff remits the amount found due for extra power, in which case the judgment is affirmed for the balance, without costs to either party upon appeal.

Cullen, J., concurs.


author: Cullen, J.

text:
    In the Matter of the Petition of Charles E. O’Connor, Rec’r.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Receiver—Pleading.
    In an action or proceeding brought by a receiver, an allegation that he has been appointed receiver in a proceeding named is sufficient. It is not necessary to allege each step in the proceeding to show his appointment was valid.
    2. Same.
    Where the answer denies the validity of such appointment, the receiver is bound to prove such appointment before he can recover.
    3. Same—Trust fund.
    The rule that a receiver cannot reach a trust fund, but that the creditor must himself proceed in equity, applies only where the trust is to receive the rents and profits and apply them to the use of the beneficiary, and not where the trust is only to convert and distribute.
    4. Executors and administrators—Accounting.
    A counterclaim in favor of the executors is no answer to a proceeding to compel them to account, as such counterclaim cannot be tried before-the surrogate.
    5. Same.
    That the executors have accounted to the legatees for substantially all the personal property does not relieve them from accounting for the proceeds of sales of the real estate.
    Appeal from order of the surrogate directing the executors of the estate of Henry Ward Beecher to account.

      W. C. Beecher, for app’lts; Leavitt & Leavitt, for resp’t.
   Cullen, J.

—This is an appeal from an order of the surrogate directing the executors of the will of Henry Ward Beecher to account. The petitioner applies as receiver of the property of Herbert F. Beecher, a son of the testator and a beneficiary under the latter’s will. The records show that the application was granted on the petition and answer alone, the order reciting “ and the parties having only submitted the same.”

The petition alleged that the applicant was appointed receiver in a certain proceeding named. This was a sufficient allegation of the petitioner’s title. He was not bound to plead each step in the proceeding to show his appointment was valid. That could be proven on the hearing if his appointment was put in issue. Rockwell v. Merwin, 45 N. Y., 166; Stewart v. Beebe, 28 Barb., 34.

His appointment as receiver, if unchallenged, prima facie entitled the petitioner to the relief granted. The point that a receiver cannot reach a trust fund, but that the creditor must himself proceed by an action in equity has no application to this case. That rule applies only where the trust is to receive the rents and profits and to apply them to the use of the beneficiary. The will does not appear in the record before us, but so far as can be gathered from the petition and answer the trust is only to convert and distribute.

Several affirmative matters are set forth in the answer of the executors, none of which were sufficient to require a denial of the application. The alleged counterclaim of the executors could not be tried before the surrogate. The alleged assignments of the judgment debtor’s interest in the estate were subsequent to the appointment of the petitioner as receiver. That the executors had accounted to the legatees for substantially all the personal property did not relieve them from accounting for the proceeds of the real estate.

But there is one error for which on this record we must reverse the order below. As already stated, the allegation that the petitioner was duly appointed receiver sufficiently pleaded that fact. But the executors by their answer denied a valid appointment. 0 It was not necessary for them to point out in their answer what defect there was in the petitioner’s appointment, for the various steps in the proceeding leading to that appointment had not been pleaded. The answer was, therefore, sufficient to raise the issue and the petitioner was not entitled to his order until he had proved his appointment.

We give'effect to this error with some reluctance since it is possible that the facts concerning the petitioner’s appointment were conceded on the hearing below.

In his opinion the learned surrogate refers to the decision of this court in O'Connor v. Mechanics' Bank, 27 St. Rep., 1, to show that the petitioner’s appointment was valid. But the difficulty is that the evidence which established that fact in the case cited is not in this proceeding. Since the point is expressly taken we must decide this appeal on the record before us.

The order appealed from must be reversed, without costs, and the proceedings remitted to the surrogate for further hearing and proof.

Barnard, P. J., and Dykman, J., concur.


text:
    Edward D. Shipman, Resp’t, v. Thomas J. Cummins, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Specific performance—Mistake.
    Defendant contracted to sell certain real estate to plaintiff, who did not appear on the day for completing, but six days thereafter demanded the deed, which was refused. He claimed to have made a mistake in noting the day in his engagement book. Held, that there being positive evidence of the mistake, and there being no reason to expecr, any considerable rise in value in the six days, specific performance would be decreed.

      Appeal from judgment in favor of plaintiff, decreeing specific performance of a contract for the sale of real estate.

      C. Furgueson, Jr., (J. C. Church of counsel), for app’lt; J. Tredwell Richards, for resp’t.
   Barnard, P. J.

—On the 23d of September, 1891, the defendant agreed to sell to the plaintiff a lot of land at South Bensonhurst, Kings county, known on map as No. 289, for $260. Ten per cent was paid down, and by the agreement the balance was to be paid on the 23d of October, 1891, at 26 Court street, Brooklyn. The plaintiff did not perform at the day. The defendant appeared at the time and place of performance ready to execute the contract. The plaintiff asks a specific performance of the contract, excusing himself for his failure to attend at the, day, for the reason that he made a mistake in marking the day on his calendar of engagements; that he marked, by mistake, the 29th day of October, 1891, as the day for performance. That on that day he attended ready to take the deed and pay for the lot. The deed was refused by the defendant because of the failure to attend on the 23d of October, 1891. There was some dispute on the trial as to the fact whether the default was occasioned by the mistake alleged. The plaintiff testified that it was and the defendant gave evidence tending to show that the plaintiff on the 29th of October, 1891, when he appeared and asked the deed, stated that the reason for the default was that he, plaintiff, had been out of town on the 23d of October, 1891. The plaintiff on the 10th of October, 1891, had written the defendant’s attorney a letter, in which the true date for performance was mentioned. The letter was not signed by plaintiff, but by his typewriter. The defendant testified that the lot on the 29th was worth $700. The court has found that the default was occasioned by a mistake and has refused to find that there was any rise in value between the 23d and 29th of October, 1891. The findings are supported by the evidence. There is positive evidence of the mistake, and there is no reason to expect any considerable rise in value in the six days.

Under the facts as found, the case was made out; the judgment in favor of the plaintiff is supported by the authorities. Day v. Hunt, 112 N. Y., 191; 20 St. Rep., 233; Merchants' Bank v. Thomson, 55 N. Y., 7.

The judgment should, therefore, be affirmed, with costs.

Cullen, J., concurs; Dykman, J., not sitting.


text:
    Agnes Schleifer, Resp’t, v. Henry Schleifer, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Divorce—Limited—Release.
    The parties hereto separated, defendant agreeing to pay a certain sum per month. A subsequent attempt to live together was prevented by defendant’s cruelty. Subsequently plaintiff signed a release in ignorance of its contents, believing it to be a receipt for the money paid, and defendant thereafter refused to make further payments. Seld, that plaintiff was not bound to ask her husband to go back and live with her before she could maintain an action for a limited divorce, her departure from her husband's house not being an, abandonment under the circumstances.

      Appeal from judgment in favor of plaintiff.
    Action for a divorce a mensa et ihoro.

      George H. Bruce, for app’lt; M. L. Towns, for resp’t.
   Barnard, P. J.

—The parties were married in 1884. In August, 1888, they separated by mutual agreement, and by the terms thereof the defendant was to pay the plaintiff twenty-eight dollars per month. In January, 1889, the parties made an attempt to live together; but it was prevented by the cruel and violent treatment to the wife by her husband. He flogged her, kicked her and locked her up. The alimony was paid up to the -6th of October, 1890, and probably for the month of November, 1890. On the 13th of November, 1890, twenty-eight dollars was paid, and a paper was signed by the plaintiff. This was a general release. The wife supposed it was a receipt for the twenty-eight dollars paid. In this she is supported by the witness Greisseman, who testified that nothing was said about a release from alimony; but that the transaction was a discontinuance of suits existing between the parties. The trial court has found that the release was not understood by plaintiff, and that she signed it in ignorance of its contents. The proof of cruelty and violence upon the part of defendant before the separation was abundant. The plaintiff has not, since the first separation in January, 1889, requested the defendant to live with her. The separation was based upon cruel treatment, and it was not necessary or proper that the plaintiff should ask her husband to go back and live with her before she could maintain an action for a limited divorce, when the alimony agreed upon was not paid. It was not an abandonment of defendant by plaintiff because she left her husband’s house in January, 1889. She was compelled to do so by ill-usage.

The proof of the financial standing of the defendant justifies the alimony' given, which is but thirty dollars per month. Besides this the proof tends to show that the defendant had received from his wife considerable money before the separation.

The judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concur.


text:
    Lewis E. Waterman et al., Resp’ts, v. Edward L. Shipman et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Evidence—Second trial.
    Where the court of appeals has determined that certain facts are not a» defense to the action, evidence to prove such facts is properly excluded on a subsequent trial of the action.
    2. Costs—Extra allowance.
    Where an action to restrain the infringement of a trademark has been, difficult and extraordinary, and the trademark is proven to, be worth $5'i,000 and the profits therefrom #3,000 a year, an extra allowance of $250 is proper.
    Appeal from judgment in favor of plaintiffs, and from order granting an extra allowance of costs.

      Action to restrain defendants from using an alleged trademark of plaintiffs, consisting of the name “ Waterman’s Ideal Fountain Pen,” and to compel them to account for all profits realized by them from the sale of fountain pens stamped with that name. For report of former appeal, see 30 St. Rep., 152; 41 id., 514.

      Antonio Knauth, for app’lts; Walter S. Logan, for resp’ts.
   Barnard, P. J.

—The court of appeals has decided that the plaintiffs have a right to an injunction in this case prohibiting the defendants from using the word “ Ideal ” as applied by the plaintiff, L. E. Waterman, to fountain pens of his own manufacture. The manufacture of pens by the defendants so marked is admitted ; the sale is admitted by the answer. The facts stated in the eighth defense were held not to authorize the use of the word “ Ideal,” and therefore proof of facts tending to establish the same was properly excluded.

The judgment was proper and must be affirmed, with costs.

The order for an extra allowance of $250 was properly made. The case was difficult and extraordinary. The trademark is proven by affidavit to have been worth $50,000 at least and the profits from the trademark to be $3,000 a year.

The order for the additional allowance is fully supported by Maurice v. Smith, 17 Civ. Pro., 158, and should be affirmed, with costs and disbursements.

Dykman and Cullen, JJ., concur.


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    In the Matter of the Appraisal of the Property of Jacob Durscheidt, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Executors and administrators—Inventory—Property set apart for widow.
    Money is personal property within the meaning of the statute, chap. 157, Laws 1843, in relation to setting apart property for the widow of a decedent.
    Appeal from order of surrogate directing the executrix to deliver to the widow the property named in the inventory, and pay her $150 in cash from the money in her hands.

      Fernando Solinger, for the executrix, app’lt; Julius Klamke, for the widow, resp’t.
   Barnard, P. J.

—The testator left a very small estate, consisting of furniture of the value of fifty dollars and $614 cash. He left a widow. The appraisers set apart the furniture of deceased for the use of the widow, and also set apart for her $150 in cash, under chap. 157, Laws of 1842. The words of this act provide the exemption in favor of the widow to be “ necessary household furniture, provisions, or other personal property ” of the value of not over $150. The court of appeals, in Matter of Frazer, 92 N. Y., 239, held that when the husband gave all the household property to his wife, the $150 exemption could be given out of other personal property. The question is thus narrowed to this; whether money is personal property within the meaning of this statute. It has heen so held by surrogate’s court. Lyendecker v. Eisemann, 3 Dem., 72.

In general signification the bank book was personal property.

The law intended to give an exemption in addition to specific-articles named to this amount, $150, and it should be construed so as to carry out the benign intent of the legislature.

The order should be affirmed, with costs and disbursements.

Cullen, J., concurs.


text:
    The Brooklyn Trust Co., Pl’ff, v. Henry P. Toler, Def't.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Bills and notes—Mistaken certification—Stock exchange.
    Plaintiff by mistake certified the check of a customer which was delivered to the president of the stock exchange to secure one 0. on certain, stock. The following morning the mistake was discovered and the exchange notified thereof before 10 o’clock. Held, that payment of the check through the clearing house gave the exchange no better title than it had before; that it had no title to the check or its proceeds except as to the C.. claim, and could not hold them to meet the claims of other creditors of plaintiff’s customer, and that plaintiff was entitled to recover the balance-of the money.
    Submission of controversy without action.

      William N. Dykman, for pl’ff; Royal S. Crane, for def't.
   Barnard, P. J.

—On the 21st of October, 1891, the Brooklyn Trust Company certified a check to be good which was drawn by 'William P. Whitehouse on the trust company to the order of Augustus W. Peters, chairman. Peters was chairman of the consolidated stock and petroleum exchange. The - check was given-as a margin to secure I. M. Comsh upon certain railroad stock. *The check was delivered by Whitehouse to Peters and Peters deposited the check with other moneys of the exchange. The certificate was made by mistake and on the 22nd of October, 1891, before 10 A. M., the exchange had notice of the mistake. The trust-company demanded the check and offered to pay the loss realized bv Comsh. This was $1,568.75. On the same day Whitehousesuffered other losses to members of the board of the stock and petroleum exchange. The defendant represents these claims other than Comsh, and as such owner demands the money, after Comsh is paid, of the exchange. The exchange cannot keep the money except to answer the Comsh loss. The trust company gave immediate notice of the mistake and except so far as there was a change of circumstances which had occurred by reason of the mistaken certification a revocation of the certificate that the check was good could be made. Irving Bank v. Wetherald, 36 N. Y., 335.

The payment of the check by the trust company through the-clearance house, to comply with the rule that a certifying bank must pay the check and settle all questions of validity with the-parties to the paper, did not give the exchange any better title to-the money than it had before. The exchange had no title except-as to the Comsh claim and Toler by his judgment against White-house got no title to the money, which neither the exchange or Whitehouse owned. Only one of the claims merged if Toler knew of the existence of the certified check when the stock order was executed. He was neither a party or a privy to the paper and so far as the case shows had no better right than any of the general creditors of Whitehouse.

There should be judgment upon the submitted case for the plaintiff.

Dykman, J., concurs; Cullen, J., not sitting.


text:
    Mary E. Warren, App’lt, v. The Phœnix Insurance Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Insurance (fire)—Alteration—Removal oe goods.
    The policy in question was upon household furniture. Plaintiff moved to New Jersey and the goods were, there destroyed. Shortly before the loss plaintiff wrote to defendant's agents that she had moved without paying the premiums and if they would send the amount she would pay, which was done. Meld, that this was insufficient to put the fact before the agents that the insured property had been removed from the building in which it had been insured, and to create an alteration in the contract, and fhat the policy did not cover the loss.
    Appeal from judgment in favor of defendant.

      W. F. O'Neill, for app’lt; Wm. Vanamee, for resp’t.
   Barnard, P. J.

—The defendant issued a fire policy of insurance to the plaintiff in 1889 upon her household effects. At the time of the issuing of the policy these insured goods were in a house occupied by plaintiff in Middletown, Orange county, N. Y. The policy contained a clause that the insurance should continue while located as described in the policy and while contained in the frame dwelling No. 21 West street, Middletown. In August following the plaintiff moved to Deckertown, N. J., and on the 2d of September, 1890, the insured property was destroyed there by fire. The policy did not cover the loss by its terms. To show an alteration in the contract the plaintiff proved a letter from herself to defendant’s agents dated August 20, 1890, stating that she and her family had moved to Deckertown without paying the premiums, and that if the agents would send the amount due on the policy she would send it. This was done on August 20, 1890, and was paid by plaintiff a few days thereafter, amounting to $2.10. The notice was insufficient to put the fact before the agents that the insured property had been removed from the building in which it had been insured. It was nothing more than a request for the unpaid premiums. The evidence of the conversation with the agent Taylor was improperly received without proof of an agency which would authorize the agent to waive the contract as inade by the policy. No such proof was given. The policy required all waivers to be endorsed in writing by agents, and that no agent should be deemed to have power or to have waived a condition unless endorsed on the'policy. No waiver was endorsed in writing, and none exists according to the contract. Walsh v. Hartford Fire Ins. Co., 73 N. Y., 5; Marvin v. Universal Life Ins. Co., 85 id., 278.

The judgment should therefore be affirmed, with costs.

Dykman, J., concurs; Cullen, J., not sitting.


text:
    The United States Trust Co., Trustee, Resp’t, v. Philip V. R. Stanton, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Executors and administrators — Services performed for, not a • CHARGE ON THE ESTATE.
    Defendant was employed by the executor and former trustee to perform legal services in relation to the estate. No agreement to give him a lien on the estate was made. In an action to foreclose a mortgage given by him it was found that no payment thereon had been made for twenty years, and that the mortgage had been paid by the services. Seld, that defendant was not entitled to judgment against the estate for the balance of the services over the mortgage;, that such services could not be made a charge against the estate.
    Appeal from judgment in favor of defendant, declaring the mortgage in suit paid by services.

      P. V. R. Stanton, app’lt in person; E. W. Sheldon, for resp’t.
   Barnard, P. J.

—The defendant gave a bond and mortgage May 19, 1862, for $2,500 to the executors and trustees under the will of Gilbert W. Bowne, deceased. In November, 1886, the plaintiff was substituted by this court as trustee in the place of the surviving executor and trustee, Beveridge, under the will. These executors, between November, 1864, and February, 1871, employed the defendant to perform legal services in and about the business of the estate. The services are found by the court to have amounted to $17,000; that $1,324 had been paid and that $15,981.90 was due February 1, 1871, with the interest thereon. The interest on the bond and mortgage was paid up to May 1, 1867. It seems from the case that a payment of interest was claimed to have been made on the 23d of October, 1867, but the trial court found as a fact that no such payment was proven, and that no payment had been made upon the bond and mortgage within twenty years next before the commencement of the action, which was October 10, 1887. There is no evidence returned and no appeal is shown by the papers to be taken by the Trust Company, plaintiff. The trial court found as a conclusion of law that the bond and mortgage was paid by the services, and the court does not find as a conclusion of law that the bond and mortgage is barred by the statute of limitation. The finding of fact being in the case that no payment was made on the obligation within twenty years, it would be improper to reverse the judgment because the conclusion of law was not found by the court, in the absence of an appeal by the plaintiff. The defendant urges on his appeal that a judgment be given against the trust estate for the balance due him over and above the mortgage. The claim is not good. The employment of the defendant was not made by the present trustee, and there is nothing in the findings which makes the case different from Stanton v. King, 8 Hun, 4; Stanton v. King and others, 76 N. Y., 585; New v. Nicoll, 73 id., 127.

There was no agreement made by the old executor which created a lien on the estate for the defendant’s services, and there is not proven a state of facts such as would justify the creation of a charge upon the trust fund under any of the cases which recognize exceptions to the general rule, that the trustees are primarily liable for the debt, with power to reimburse themselves out of the estate upon an accounting.

Judgment should be affirmed, with costs.

Dykman and Cullen, JJ., concur.


text:
    Ann Eliza Wilcox, App’lt, v. Charles J. Quimby et al., Individually and as Ex’rs, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Executors and administrators — Power oe sale — When court will ENFORCE.
    In a proceeding to remove executors on the ground of conversion of personal property and failure to sell real estate, no wrongful conduct on their part was shown, but it appeared that the direction of the will to convert was absolute, the time of sale only being left to the executors' discretion; that more than twenty years had elapsed, during the last eight of which the life tenant received no income; that the property was increasing in value, and since the commencement of the proceeding a contract for its sale had been entered into. Held, that the life tenant had a right to insist upon a sale after such a lapse of time; that under the circumstances the court should compel the executors to exercise their power of sale, and that the complaint was improperly dismissed.
    Appeal from judgment of special term, dismissing the complaint.

      James Flynn, for app’lt; M. M. Silliman, for resp’ts.
   Cullen, J.

—This action is brought to remove the defendants as executors, and to have a trustee appointed in their place, and for an accounting. The court at special term at the close of the evidence dismissed the complaint.

The complaint charges the defendants with having converted the testator’s personal property and the rents of the real property and with failing to account. It also charges misconduct on their part in failing to sell the realty. As to the personal property, the evidence fails to show any conversion by the defendants, and, on the contrary, does show that they fully accounted for it before the surrogate. Since the decree in the surrogate’s court no formal account of the rents has been rendered, and the testimony of the defendant Quimby is that they have been consumed in maintaining the property and in repaying to him a balance due on the surrogate’s decree. These facts sufficiently answer the charges of the complaint in these respects.

But the serious question arises as to the failure of the defendants to sell the real estate. This realty consists of a farm of about 170 acres lying partly in the village of White Plains. As a farm, which presumably is the only purpose for which it could be leased, it has rented at from $400 to $600 per year, from which lent must be deducted the taxes and the expense of maintaining the property. The plaintiff, the equitable life tenant of an undivided. third, has received nothing of income from the property for eight years. As suburban property the farm would sell for a large sum. The plaintiff’s husband testified that in 1870 he offered for it $30,000. This is denied by the defendant Quimby.

Be this as it may, now over twenty years has elapsed since the testator's death, and no sale had until pending this action a contract of sale has been made. It does not appear that this contract has as yet been carried into effect. The direction of the will to convert is absolute; the time of sale only is left to the discretion of the executors. The executor testified that he has always been ready to sell at a fair price, and that he has had the property in the hands of real estate brokers, but without offers, until after the commencement of the suit. Mo attempt has been made to dispose of the property at public sale. The sale of the farm now effected will, if carried out, be at the rate of $500 an acre.

We think, on these facts, the complaint should not have been dismissed. There has been, doubtless, no misconduct on the part of the executors in the sense of any moral wrong, and, therefore, there was no ground for their removal. It is also true that the delay in the sale has resulted in a great appreciation in the value of the property. But there must come some time at which the direction of the will to sell should be carried into effect. The life tenants, the primary object of the testator’s bounty, should not be -called upon to continuously sacrifice their interests to the benefit of remaindermen. We think that the plaintiff, after waiting twenty years, cpuld properly insist upon a sale at whatever price the property would bring in the market. That the court can compel an executor to exercise a discretionary power of sale is unquestioned. Haight v. Brisbin, 96 N. Y., 132.

At the time plaintiff instituted her action she was entitled to relief so far as she sought to enforce a sale, and the action was properly brought. That a sale has been made pending the suit should not defeat her action and impose upon her the burden of costs. The present contract of sale is still unconsummated, and may fail, in which case the plaintiff will be entitled to another sale.

The judgment appealed from should be reversed, to the extent that the defendants be decreed forthwith to sell the testator’s realty, and that after or upon such sale the defendants account for the rents and profits since the decree of the surrogate. In other respects the judgment should be affirmed, except that the costs of all parties, both at the trial and on appeal, should be paid out of the fund.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    The Tarrytown & Irvington Union Gas Light Co., App’lt, v. James Bird et al., Trustees, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Gas light companies—Evidence.
    In an action to recover for gas supplied to and used by a defendant, it is competent to show that the gas went out by air passing through the pipes on both the questions of quantity and quality. The meter is not conclusive on the question of quantity, and defendant, by acceptance of the gas, does not preclude himself from showing a breach of the implied warranty as to quality.
    Appeal from j udgrnent in favor of defendants, entered upon the verdict of a jury.
    Action to recover for gas supplied to and used by a masonic lodge of which defendants are trustees.

      Henry C. Griffin, for app’lt; George C. Andrews, for resp’ts.
   Cullen, J.

-—This is an appeal from a judgment of the county court, entered upon the verdict of a jury.

This court cannot set aside the verdict as against the weight of evidence, Thurber v. Townsend, 22 N. Y., 517, nor can the plaintiff here raise the point that the evidence conclusively established its rights to recover the full amount claimed, for it did not ask the court to direct the verdict in its favor. The question could only be raised by such an application and an exception to the court’s refusal to grant it.

The exceptions to the admission of evidence are not well taken. The answer put' in issue both the quality and the quantity of the gas furnished. The meter was not conclusive on the question of quantity. Sickles v. Manhattan Gas Light Co., 64 How., 33.

It was competent to show that the gas went out by air passing through the tubes, on both questions of quantity and quality, for the defendant was to pay for gas, not air. The acceptance of the gas did not preclude the defendant from showing a breach of the implied warranty as to its quality, because the defects could not be discovered until the gas was burned.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Roscoe G. Chase et al., App’lts, v. Charles M. Evarts, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    1. Sale—Wabbanty—Evidence.
    In an action for the price of goods sold where the defense is a breach of warranty, evidence of the warranty is admissible even though the contract was in writing.
    3. Same—Contbact.
    Where the alleged contract was in the form of an order for the goods, with a form of acceptance to be signed by the agent, and the instrument remains in the hands of the agent, in the absence of proof that the agent signed the same there is no written contract between the parties.
    3. Same—Acceptance.
    Where there is an express warranty on the sale of goods, an acceptance of the goods does not estop the vendee from claiming damages for a breach. In such case he is not bound to return- or oiler to return the goods.
    4. Same—Damages.
    Where the goods turn out to be wholly worthless, the measure of damage is the full purchase price.

      Appeal from judgment in favor of defendant, entered upon the decision of the court on a trial without a jury.

      Ira Leo Bamberger, for app’lts; Edward Cromwell, for resp’t.
   Cullen, J.

—This is an appeal from a judgment for the defendant on the decision of the court before which the case was tried without a jury. The complaint was for trees, shrubs and nursery stock sold and delivered. The defense was breach of warranty and that the articles were worthless.

It is claimed that the contract of sale was in writing, and that the court, erred in admitting paroi evidence of a warranty by the plaintiffs. The defendant denied signing any contract and the trial court found this question in his favor. This finding we are asked to reverse as against the weight of evidence. Even if the finding was erroneous, this would not make the evidence improper. The defendant was entitled to present any evidence which would be competent on the most favorable findings in his favor of any facts in dispute. We think the court did not err in its disposition of this question of fact. The contract alleged to have been signed by the defendant was in form an order to the plaintiffs to deliver certain articles. At the end of the order is a printed form of acceptance to be signed by plaintiff’s agent. If the defendant did actually sign , the order it would not constitute a contract 'till accepted in writing by the plaintiffs and the defendant notified of the fact. The instrument remained in the hands of thé agent. There is no evidence that, he executed the acceptance at the time the order was given, or that any notice was given to the defendant of a subsequent acceptance. There was, therefore, no written contract between the parties.

It is next claimed that defendant was estopped by his acceptance of the goods. The court found an expressed warranty. In such case the vendee is not bound to return or to offer to return the property. He may retain the same, stand on bis warranty and recover damages for the breach. Day v. Pool, 52 N. Y., 416.

The evidence established a breach of the warranty and that the property was wholly worthless. The defendant’s damages were, therefore, the full purchase price of the property.

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Dykman, J.

text:
    The National Bank of Orange County, Resp’t, v. Burhans Van Steenburgh et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 22, 1892.)

    Trust—Property takes is same op asother.
    In 1883 plaintiff discounted a note ior defendant B., which was not paid, and judgment was obtained in 1888. Thereafter the judgment was satisfied on delivery of a note of B. with ah endorser, which was renewed several times, and finally protested, and judgment recovered, on which execution was returned unsatisfied. In 1885 defendant J., at the request of B., who furnished the money, purchased certain land, and took title in his own name, and thereafter executed a deed in blank, which B. filled out with his wife's name. No consideration passed either from or to J. for these conveyances. Held, that the acceptanceby plaintiff of the note did not pay the debt to it; that the land was impressed with a trust in favor of plaintiff as an existing creditor of B., which it could enforce by virtue of 1 B. S., 728, § 51, and that the complaint alleging these facts stated a good cause of action.
    Appeal from order overruling demurrer to the complaint, and from interlocutory judgment entered upon such order.

      Herbert Gedney, for app’lts; Bacon & Merritt, for resp’t.
   Dykman, J.

—This is an appeal from an order overruling a de-, murrer to the complaint on the ground of insufficiency, and from the interlocutory judgment entered upon such order.

It is the object of the action to reach certain real property, and procure the payment of a judgment therefrom, and the following is a brief statement of the material allegations of the complaint.

It alleges the organization of the bank under the law of congress, and the discounting of a promissory note- for the demurring defendant Burháns Van Steenburgh for $3,000, the proceeds of which were received by him. That note was endorsed by Aaron Innis, the payee, by the Goshen Foundry & Gas Machinery Company and Burhans Van Steenburgh.

When that note became due it was protested for non-payment, and an action was commenced thereon against Burhans Van Steenburgh and the Goshen Foundry & Gas Machinery Company, and a judgment was entered against the defendants in favor of the plaintiff for $3,321.60 on the 17th day of April, 1888.

About the 23d day of January, 1889, the defendant Burhans Van Steenburgh presented to the plaintiff a promissory note signed by himself as maker’, payable to the order of William T. Bussell, and endorsed by him, for $3,400, payable in four months after date, and requested the plaintiff to take the same in the place of the judgment so obtained as stated above, and the same was so accepted, and the judgment was satisfied of record.

That last note was renewed several times, the last renewal being August 13, 1889.

In August, 1890, the plaintiff commenced an action upon that note against the maker and endorser, but the maker alone was served with the summons and complaint on the 27th day of August, 1890, and judgment was entered against him in the action August 10, 1891, for $3,600.93. There was an attachment issued in that action under which the real property described in the complaint was seized.

On the 16th day of September, 1891, an execution upon the said judgment was issued against the property of Burhans Van Steenburgh to the sheriff of Orange county where Van Steenburgh resided, and that execution was returned wholly unsatisfied and the judgment stands unpaid.

On the 23d day of January, 1885, the defendant James H. Van Steenburgh, at the request of Burhans Van Steenburgh, who furnished the money to p>av for the same, purchased the land and premises described in the complaint, and the deed of conveyance for the same was taken in the name of James H. Van Steenburgh in trust for Burhans Van Steenburgh. • James H. Van Steenburgh paid no part of the consideration for the land and the complaint charges that he took and held the same in trust for his brother Burhans Van Steenburgh for the purpose of aiding him in his' unlawful design of cheating and defrauding his creditors.

About the 12th day of September, 1888, James H. Van Steenburgh, at the request of Burhans, executed and delivered to the defendant Alexander Goldsmith a mortgage upon a portion of the land for $6,000, which was received by Burhans.

The complaint further charges that James H. has executed and delivered to Burhans an instrument in some form either declaring the trust upon which he held the property or conveying the same in blank.

In September, 1888, James H., at the request of Burhans and without any consideration, executed another conveyance in blank for the premises, and delivered the same to Burhans, who subsequently wrot the name of Ida D. Van Steenburgh, his wife, in the deed as grantee, without any consideration. That deed has not been delivered to her, but she is fully informed of the fraudulent character and purpose of the conveyance.

The defendant. Annie Van Steenburgh is the wife of James H., but she did not join in the deed to Ida.

This lengthy recitation has been made to show how full and complete the complaint is and how well it justifies the prayer for relief which it contains.

The basal fact is that the plaintiff became the creditor of Burhans Van Steenburgh on the 11th day of December, -1883, and has continued to be such creditor from that time. The debt has never been paid. The acceptance of the note in place of the judgment did not pay the debt. It was but the substitution of a new security for it. There was no new consideration for that note, and it was given for the antecedent debt.

Under those circumstances the land conveyed to James H. and paid for by Burhans was impressed with a trust in favor of the plaintiff as an existing creditor of Burhans, which it can enforce in this action by virtue of the statute, 1 R. S., 728, § 51, and that trust in favor of the plaintiff will prevail over the title of James H., because he paid río consideration for his conveyance. Wood v. Robinson, 22 N. Y., 564.

Moreover the facts alleged are amply sufficient to enable the plaintiff to maintain this action to have the conveyances declared fraudulent and void and have its judgment paid by a sale of the land under the direction of the court.

The order and judgment should be affirmed, with costs.

Barnard, P. J., and Cullen, J., concur.


author: Lansing, S.

text:
    In the Matter of the Estate of Marcus L. Filley, Deceased.

      (Surrogate’s Court, Rensselaer County,

      Filed June, 1893.)

    1. Surrogate’s court—Order to show cause.
    While § 780 of the Code is not directly made applicable to the surrogate’s court, an order to show cause may properly be employed in such court to shorten the time of notice.

      .2. Same—Executor’s bond. '
    While a surrogate may not extend the five days fixed by § 3687 in which to file a bond, he may relieve the executor in a proper case from an order taken against him when he can show that it occurred through mistake, inadvertence or excusable negligence, but a motion to open such order or decree can only be entertained on newly discovered facts showing that it was made without jurisdiction or through inadvertence, mistake or fraud.

      3. Same.
    The surrogate having required the executor to give a bond, a controversy arose as to the value of certain real estate alleged to belong to testator, the executor giving evidence that it was of less value than the petitioner claimed. Thereafter the executor moved to modify the decree fixing the amount of the bond on the ground that testator had prior to his death conveyed the real estate to the executor, who had conveyed to another person, and he produced the unrecorded deeds. Meld, not a case of newly discovered evidence which would authorize the opening of the decree.
    This is an application by Marcus L. Filley, Jr., executor, etc., of Marcus L. Filley, deceased, requiring Horace Staples, a creditor of said deceased, to show cause why the decree heretofore made by the surrogate upon the application of said Staples, requiring the said Marcus L. Filley, Jr., to give a bond in the penal sum of $32,000 as such executor, and in default thereof that he be removed from his office, should not be modified by reducing the penal sum of said bond to the sum of $8,000. '
    About the 21st day of March, 1892, a petition was presented to this court by Horace Staples, as creditor, praying that Marcus L. Filley, Jr., be cited to show cause why a decree should not be made revoking, the letters testamentary theretofore issued to him, on the grounds, among others, that he was a non-resident of this state, and that “ his circumstances were such that they did not afford adequate security to the creditors or persons interested for the due administration of the estate.” A citation was issued thereon, returnable on the 2d day of May, 1892; upon the return ■day said Marcus L. Filley, Jr., appeared by counsel and filed an inventory of the personal estate, showing that the value thereof «did not exceed the sum of about $4,000.
    The value of the real estate of which deceased was alleged to have died seized was conceded to be several thousand dollars in addition, and as there was no denial of the allegations of the petition, that the ■executor was a non-resident of the state and a person of no pecuniary responsibility, the surrogate held that the executor must give a bond as such; and the matter was held open until the 7th •day of May for the purpose of enabling the parties to furnish proof of the value of the real estate owned by the deceased, more particularly the mansion house occupied by him at the time of his death, situate in the village of Lansingburgh. On the 7th day of May affidavits were submitted on the part of the creditor Staples showing the value of the real estate was from $12,000 to $13,000, and upon the part of the executor that it was worth about $9,000 ; the surrogate held, upon the proof furnished, that the value of the entire estate, for the purposes of the application, was $16,000 ($4,000 personal property and $12,000 real estate), and ordered a bond to be given in the penal sum of $32,000, with two or more sufficient sureties, within not exceeding five days-after service of the order, or, in default thereof, fhat the letters testamentary of said executor be revoked. On the 10th of May, 1892, a copy of said order was duly served upon the attorney for said executor.
    On the afternoon of the 16th of May (the last of the five days wherein to file his bond) an application was made to the surrogate on behalf of said executor for an order requiring said Staples to show cause before this court, at ten o’clock A. m. of May 17th, why the decree or order above mentioned, to file a bond in the penal sum of $32,000, should not be modified by reducing the penal sum of the said bond to the sum of $9,000, upon the ground that the real estate which had been treated and considered as a part of the estate of said deceased in fixing the bond had been conveyed by deed by said Marcus L. Filley, deceased, to his son, Marcus L. Filley, Jr., several years before his death, and that the said Marcus L. Filley, Jr., had, since that time, conveyed said premises (the Lansingburgh residence) to one William J. Carter, of Philadelphia. The executor, at the time of making his application, filed the bond, with sufficient sureties, in the penal sum of $9,000. The order to show cause was granted, and on the 17th day of May the parties appeared.
    The counsel for the said creditor objected to the modification of the decree or order prayed for, upon the ground that the surrogate had no authority to make an order to show cause, etc., or to extend the time to file the bond beyond the five days provided in the decree or order, or to modify the decree or order theretofore made reducing the bond upon the ground stated in the application therefor. Decision of the preliminary objections was reserved until the hearing upon the merits.
    An affidavit was then submitted on the part of the creditor, Staples, showing that said Lansingburgh residence was occupied by the said deceased at the time of his death and was at present in the occupation of his widow. Also the will of said deceased, showing that the dwelling house situated in the village of Lansingburgh is devised therein to said Marcus L. Filley, -Jr., by said testator for an alleged consideration of services theretofore rendered and a note of $10,000 given him therefor.
    The executor thereupon presented two deeds, of the real estate in question, one purporting to convey the same from testator to the executor, individually, dated 1886; and the other from the executor M. L. Filley, Jr., individually, dated April 18, 1892, conveying said premises to William J. Garter. The said deeds were not recorded until the day of the hearing, May 17, 1892. The deed to W. J. Carter was for an alleged consideration of $3,500.

      R. A. Parmenter, for Marcus L. Filley, executor; Henry A. King, for Horace Staples, a creditor.
   Lansing, S.

—The first question for examination is the objection that § 780 of the Code of Civil Procedure, which provides for shortening the time for notice of motion to less than eight days-by an order to show cause, etc., is not made applicable to the surrogate's court; and subdivisions 4 and 6, § 3347 of the Code, are cited in support of the position. I am inclined to think that § 780 is not directly made applicable to the surrogate’s court. This section contains the general Code provision upon the subject of time of notice of motion, and provides it shall be eight days unless, etc. If the section is not applicable to the surrogate’s court then, in the absence of any other provision (and I have been able to find none), a notice of motion in this court could be made without special limit as to time of service of notice, etc. But in the absence of such provision perhaps subdivision 11 of § 2481 would apply, which provides in effect that where jurisdiction is given in any matter to the surrogate’s court and the practice is not prescribed, it shall proceed according to the course and practice of a court having by common law jurisdiction of such matters.”

But whatever the warrant for the practice of employing an order to show cause to shorten time of notice, the practice is well settled in surrogate’s courts to employ it, and it has been so employed both before and since the adoption of the new Code. Bedfield, in his work on Surrogate Practice, 4th ed., p. 57, says: “ The proceeding to vacate a decree under § 2481, subdivision 6, (where this application is unquestionably made) is properly initiated by a notice of motion or order to show cause." See also Cluff v. Tower, 3 Dem., 253.

For the purposes of this application I shall hold the practice proper.

I am satisfied that the next objection of the creditor, that the surrogate has no authority to extend the time of the executor to file his bond beyond the five days provided in the order, is technically well founded. But while the surrogate may not extend the five days fixed by § 2687 in which to file a bond to six or ten days, he may in a proper case under Code, §§ 724 and 2538, relieve a party from an order taken against him when he can show it occurred through “ mistake, inadvertence or excusable negligence" etc., and the same relief may be obtained in certain cases hereafter mentioned under § 2481, subdivision 6, above cited. But under either section relief must be obtained, if at all, not as a matter of favor, but for the specific reasons or upon the grounds provided in the statute.

This disposes of the preliminary objections, and brings us to an examination of the question whether the executor has presented a case authorizing the surrogate to open or modify the decree made herein on the 7th day of May, 1892, adjudging the executor’s pecuniary circumstances to be such as not to afford adequate security for the due administration of the estate of the deceased, and requiring him to file a bond in the penal sum of $32,000 within five days, or in default thereof that his letters testamentary be revoked.

Section 2687 of the Code of Civil Procedure provides that if upon the return of the citation issued under § 2686. the objections to the executor or any of them mentioned in § 2685 “ are established to the surrogate’s satisfaction, he'must make a decree revoking the letters issued to the person complained of:1 But the surrogate may in his discretion * * * allow letters to remain unrevoked * * * (subdivision 8) where the case is within subdivision 5-of that section (2685) (that is where the executor is pecuniarily irresponsible) if the executor gives within a reasonable time,' not exceeding five days, the bond prescribed in article first of this title.’’ The surrogate appears to have no discretion as to time in which to file a bond in the first instance, if he finds the objection sustained.

The direction of the surrogate of the 10th of May, 1892, was a decree, § 2687, supra, and this decree was the deliberate and formally expressed judgment of a court having entire jurisdiction both of the person and subject matter involved.

The decree adjudged:

(1) That the circumstances of the executor did not afford adequate security to the creditors for the due administration of the estate, and,

(2) That the value of the property belonging to the estate at the time of testator’s death was ¡§16,000.

I am satisfied that this decree must remain, unless appealed from, or, unless the case can be brought within § 2481, subdivision 6 of the Code, which provides that this court may open, vacate or modify its decree or order and grant a new hearing for “ fraud, newly discovered evidence, clerical error or other sufficient cause,” but with the qualification that “ the powers conferred by this subdivision must be exercised only in like cases, and in the same manner as a court of record and of general jurisdiction exercises the same powers.” This application must rest upon the ground of “newly discovered evidence.” The ground “other sufficient cause;” will not avail to support.an application for the introduction of evidence under this section, where its only claim for consideration, in the nature of things, is, that it is newly discovered. ISTow what are the facts appearing on this application as to the ground of newly discovered evidence ?

The creditor alleges in his petition the ownership of the property (the mansion house in Lansingburgh) in the testator, and its value; a postponement of several days was sought by Mr. Filley, the executor, for the purpose of submitting to the court proof in regard to the value of the same real estate, (he alleging it to be of less value); proof was subsequently furnished by the executor (without any denial of the fact and upon the assumption that- the real estate in question belonged to the testator at the time of his death) that it was of the value of $9,000. The fact, if fact it be, that this real estate had really been conveyed to Marcus L. Filley, executor, by his father prior to his decease, and had been by him, individually, conveyed since the institution of this proceeding to the alleged grantee, Carter, was well-known to Mr. Filley and known prior to the time the decree was made, and the fact was obviously suppressed by him.

Clearly it is not a case of newly discovered evidence.

(1) The opening of a surrogate’s decree formally and lawfully made requires the exercise of the soundest discretion.

(2) It should only he done in extraordinary cases and where errors are plain, palpable and beyond any question. Decker v. Elwood, 3 Supreme Ct. (T. & C.), 48; Redf. L. & P., 4th ed., page 58, and cases cited.

It is well settled that a motion to open an order or decree in surrogate’s court should be entertained only on newly discovered facts showing that it was made without jurisdiction or through inadvertence, mistake or fraud. Janssen v. Wemple, 3 Red., 229.

“ Where a party has had his day in court, he must show that it was not his fault that he did not improve it before he can get another day on the same matter.’’ In re Estate of O'Neil, 46 Hun, 501; 12 St. Rep., 419.

The discovery of further evidence in an account book, which was in possession of the party, pending the litigation, «prior to the decree, cannot be deemed newly discovered evidence upon which the decree should be opened. In re Olmsted, 4 Dem., 44. See, also, In re Kranz, 41 Hun, 465; 3 St. Rep., 297; In re Tilden, 98 N. Y., 434; In re Hawley, 100 id., 206.

I am satisfied from an examination of the authorities that the surrogate is utterly without power to vacate or modify the decree made herein. Orders and decrees in surrogate’s court are placed upon precisely the same footing as those in other courts of record, and the power conferred to open or modify “ must be exercised only in like cases as a court of record and of general jurisdiction exercises the same power.” It will hardly be claimed that the facts appearing upon this application would warrant the granting of a new trial in supreme court on the ground of newly discovered evidence. There is, therefore, no ground stated in the moving papers which would warrant a new hearing or authorize a modification of the order or decree granted in this matter, and I can conceive of none which could be added from the facts disclosed. The executor well knew the fact, the introduction of which he now seeks as a ground for the modification of the decree, before the application was made. Indeed, I am sure he has not been surprised or misled, for it was stated upon the hearing-that the bond in the amount directed would have been given if the executor had been able to do so.

These views lead to a denial of the motion for a new hearing- or for a modification of the bond.

■ Two other questions involving the merits were discussed upon the motion, which, although in the view I have taken, are not necessarily involved in the decision of this motion, yet, as the result of my examination of these questions tends to support the conclusion I have reached upon the more technical ground, it may not be improper to discuss them briefly. (1) As to the question of requiring a bond covering property alleged to be fraudulently conveyed. I am satisfied that while the decision in Peck v. Peck, 3 Dem., 548, holding “ that the surrogate’s court in fixing the bond of the executor should not take into consideration any property of the title to which the testator or intestate had divested himself during his lifetime, whether a transfer was procured. by fraud or otherwise,” states the general rule, yet there is no such hard and fast rule upon the subject, since in some cases the main object in taking out letters is for the purpose of recovering property fraudulently conveyed. Laws, of 1858, chap. 314, § 1, as amended, Laws of 1889, chap. 487.

“ And (it is held) in any case, an executor is chargeable with breach of trust for neglect in instituting any action or proceeding necessary to recover assets fraudulently disposed of by his decedent.” In re Cornell, 110 N. Y., 351; 18 St. Rep., 200; Hangen v. Hachemeister, 114 N. Y., 566; 24 St. Rep., 526. In such cases, at least, bonds should be required covering the amount of probable recovery, and the statute seems to contemplate the exaction of the same by the proper court. (2) Upon the remaining question, whether the said real estate belonged to testator at his decease: It would seem under the authorities •(aside from all considerations pointing to a fraudulent conveyance) that the proof offered comes far short of showing a transfer of the legal title from the testator before his death.

The deeds in question are not recorded. A deed to convey title must not only be duly executed, but must be delivered.

The fact that the deed from the father, the testator, to the •son, is in the possession of the son, who is his executor, does not furnish the necessary proof that it was delivered to the son' as grantee during the lifetime of his father, because if not delivered he, as executor, would be likely to come into possession of it. In fine, therefore, the absence of any proof of prior negotiations upon the subject of transfer and the absence of any fact to support the presumption of delivery beyond the bare possession of the deed by the executor after death of testator, with the added fact that M. L. Filley, Sr., was at the time of his decease in possession of the property, would seem to require something further to establish that said instrument was delivered by the •grantor with intent to convey title prior to his death. Knolls v. Barnhart, 71 N. Y., 474; Gifford v. Corrigan, 105 id., 223, 226; 7 St. Rep., 7.

But as I have before stated, a decision of the two questions last above discussed are not necessarily involved in the decision •of this motion, since I am compelled to hold under the authorities that the presentation of the deeds upon this application cannot in any just sense be termed newly discovered evidence, so that no ground appears which will warrant the opening or modification of the decree.

Motion to vacate or modify the decree of May 10, 1892, denied with ten dollars costs of motion, and upon filing proof that the executor failed to file his bond as required by said decree, a •decree may be entered vacating the letters testamentary heretofore issued to said executor.


author: Adams, J.

text:
    The Eastman Company, Pl’ff, v. Henry M. Reichenbach et al., Def’ts.

      (Supreme Court, Monroe Equity Term,

      Filed August 30, 1892.)

    Injunction—Trade secrets.
    Defendants were in the employ of the plaintiff, one being a traveling sales-)'an, and the others as chemists under a contract hy which they agreed to transfer to the company any inventions, discoveries or improvements-in photography which they might make, discover or invent while in such employ. While so employed they organized a new company to engage in the same business, and issued a prospectus in which they stated that a certain film to be sold by them was prepared by a “ new process; ” and they were peculiarly prepared" to place on the market another article by reason of “ having manufactured and sold it for a manufacturer that has, at present, the niarket monopoly.” Held, that the results of the experiments conducted by defendants while in plaintiff’s employ were none the "less-discoveries or inventions because the agencies employed to produce them and the particular properties of such agencies were known to the scientific mind, so long as the results achieved are new; that such discoveries under the contracts^ belonged to plaintiff; that from the language of the prospectus it is apparent that defendants intend to use some of such discoveries, and that plaintiff is entitled to an injunction to restrain them from using or disclosing any formulas or processes used by it in its business and which were imparted to or discovered by them while in its employ.
    The plaintiff brings this action to restrain the defendants from using or in any manner disclosing or imparting to any one any secret or information as to any processes or formulas used by the plaintiff in its business of manufacturing protographic supplies, and especially in its business of making emulsion and film, which had been imparted to or acquired or discovered by them while in the employ of the plaintiff or its predecessor in business. The plaintiff is, and since the 5th day of December, 1889, has been a corporation duly organized, and as such was and is engaged in the business of manufacturing and selling Kodak cameras, photographic films and papers, dry plates, and other material and apparatus used in the art of photography, it having succeeded the Eastman Dry Plate Company in the conduct of this business. The defendants were in the employ of the plaintiff, holding responsible and lucrative positions. They were men of education,, skill and experience in their respective departments, and their services were of great value to the plaintiff, in whose interests, it is claimed, they, or two of them, Reichenbach and Passavant, had made certain discoveries and inventions which were of great value and which were unknown to the world at large.
    While thus employed by the plaintiff, the defendants organized a new company, with a large capital, for the purpose of engaging in the same business as that carried on by the plaintiff, and issued a prospectus of their enterprise, in which the announcement was made that the “ Corona Camera Company ” had been incorporated for the manufacture and sale of “ Photographic novelties arid specialties,” which announcement was followed by a list of some of the leading “ specialties and novelties,” which it was proposed to manufacture and sell. Among the articles thus enumerated, were a “ Corona film ” and a “ bromide paper,” the latter of which,, it was stated in the prospectus, the projectors of the new company were peculiarly prepared to place upon the market by reason of “having manufactured and sold it for a manufacturer that has, at present, the market monopoly.” Upon entering the service of the plaintiff, or its predecessor, the defendants Reichenbach and Pas-savant executed a written contract by the terms of which it was stipulated that they and each of them should assign and transfer to the company all inventions, discoveries, or improvements in photography which they respectively might make, discover or invent while in its employ.
    There is also evidence tending to show that outside of these ■contracts it was stipulated on the part of these defendants that they should regard their relation to "the company as strictly ■confidential, and that they should not disclose or make improper use of any secrets of the business. The defendant Milburn ■occupied the position of traveling salesman for the plaintiff, and while in pne sense his relation to the company was confidential in its character, he had not the same opportunities as the others to acquire information respecting its secret operations ; that .is, he was not engaged in experimental or formulative investigations.
    The plaintiff, upon learning of the intentions of the defendants respecting the formation of a new company, and upon having the ■contents of their prospectus brought to its notice, discharged them from its employ, and then resorted to a court of equity for the relief which it seeks to obtain through the medium of this action.'

      Hubbell & McGuire, for pl’ff; William A. Sutherland and Theodore Bacon, for def’ts.
   Adams, J.

—This case is invested with questions so interesting, and with consequences so important to all the parties interested, as to fully justify the large expenditure of time and labor which has characterized the trial and submission of the ¡same; and, as introductory to any discussion of the facts or law, the court desires to acknowledge its obligations to counsel ior the very elaborate and careful briefs which have been submitted and which in their arrangement of facts and reference to precedents have been helpful beyond measure.

' It would seem that an orderly and intelligent disposition of the case can best be accomplished by a review of the several ■questions of fact involved, in substantially the same connection .as they are presented by the pleadings; and therefore the one which demands consideration at the outset relates to the matter ■of valuable secrets of trade, which the plaintiff claims to be the. ■Owner of. Did the plaintiff possess such secrets, processes and ■appliances, and were the same discovered or invented by the •defendants or either of them, or imparted to them, while occupying confidential relations with the plaintiff ?

That this proposition must be met with an affirmative answer is practically admitted by - the defendants, for the very specific .allegations upon this branch of the case which are contained in the plaintiff’s complaint are put in issue but partially, if at all, by the somewhat evasive denial that u allot the inventions made iby the defendants, or either of them, belong to or are the exclusive property of the plaintiff.” But, aside from this concession, the very nature of the business in which the plaintiff is engaged suggests processes, appliances, substances and methods, which must, of necessity* depend, for their successful use and operation, upon the enforcement of the utmost secrecy; and the fact that this plaintiff has established and is now conducting this extensive .and remunerative business is of itself evidence so strong as almost to require the court to take judicial notice that discoveries and inventions unknown to the public at large constitute the foundation upon which that business rests. It would be useless to indulge in further expenditure of time upon a proposition so self-•evident, and it must be assumed, therefore, that the plaintiff is, .and was at the time defendants were in its employ, the owner of inventions, discoveries and secrets which were its own special property, and to which great value attached.

That these inventions or discoveries were (some of them, at least) made by two of the defendants, is, as has just been shown, also a conceded fact, and that these same defendants possessed knowledge as to all of them which was regarded as confidential in its nature, is abundantly established by the evidence in the •case. As illustrative of this proposition may be cited those portions of the testimony which show the care and pains which were taken by the defendants to conceal from a curious public, and ■even from the knowledge of their co-employees, the several processes ■employed to obtain certain results. Again, men employed in one ■department were not allowed to go into another department. Ingredients employed in compounding certain mixtures were guarded by lock and key, and the various formulas were only given to those whose business it was to use them. It would be absurd to ■claim that defendants could have been conscious of the precautions thus taken to hedge in the plaintiff’s business affairs without understanding very clearly the meaning of it all, and no conclusion consistent with sound reason can be indulged in other than that which is contended for by the plaintiff, viz.: that it was the possessor of certain valuable trade secrets which were confidentially known by or disclosed to the defendants Reichenbach and Passavant.

But however satisfactorily this fact is made to appear, another, and an equally important one, is, in my judgment, made quite as apparent, and that is that one or both the parties just named, while in plaintiff’s service, made certain valuable discoveries which, under the terms of their employment, and by the strict letter of their contract, plaintiff was entitled to the benefit of. As has already been suggested, both Reichenbach and Passavant were chemists of skill-and experience. The services of the former were sufficiently valuable to command a salary of $5,000 per annum, in addition to which he had been presented by the company with a quantity of its stock, upon the sale of which he had realized nearly $20,000. Passavant was receiving a Salary of $2,500, and both were entrusted with duties and responsibilities of the most delicate and confidential character. Among these duties was that of constant experimenting, with a view to improving the products of the establishment, and these experiments were continually developing new results, which the company was entitled to the sole enjoyment of. This much of the plaintiff’s claim is, as I understand it; conceded; but defendants now insist that these-results were not in the nature of discoveries, because all the-agencies employed to produce them, and even the particular properties of these agencies, or some of them, were already known to the scientific mind; and it is argued that nothing can be invented which already exists, nor can anything be said to be discovered the existence of which is already known. This argument is true to a certain extent, but it has its limitations. To illustrate: It cannot be truly stated that Alexander Bell invented or discovered electricity, but it may be said without fear of contradiction that he did invent the telephone, although it was known long before his day that, by means of a continuous current of electricity, both vibration and sound could be transmitted over-considerable distances. Again: The existence of aluminum and its value in the industrial arts has long been known, but its use has to a great extent been prevented by the expense involved in its production ; and it is within a very recent period that chemists, have been able to devise methods by which it can be extracted from clay so cheaply as to admit of its extensive use. However well known the substance may have been, or the chemicals, by the use of which such a result has been accomplished, it cannot be denied that this was a new and valuable discovery.

So," in regard to some of the inventions or discoveries claimed as property by the plaintiff. They were obtained by compounding certain well known ingredients, possessing well defined properties, but in such a manner as to produce new results, and these results were found to be useful in the manufacture of photographic instruments and supplies to such an extent as to give the plaintiff great advantage over its competitors. Perhaps the composition which will best illustrate the idea sought to be conveyed is that which is referred to in the evidence as the “ doctor.”

The principal ingredient of this composition is an article known the world over as saponin, and it is likewise a well known scientific fact that saponin is useful for the removal of grease. In a certain foreign periodical, known as The British Journal of Photography, under date of February 13, 1885, appeared an -article suggesting that this substance might be used with good effect in photography. The plaintiff, in its attempt to manufacture a superior article of bromide paper and photographic plates, had experienced considerable difficulty from spots appearing upon the surface of the paper and plates, which were thought by some to be occasioned by grease, while others . entertained different-theories respecting them.

After reading the article above mentioned, which only referred, in a general sort of way to the use of saponin in photography,, without specifying that it might have the effect of freeing gelatine emulsion from fat or grease, Reichenb'ach conceived the idea of employing it for that purpose, and after numerous experiments, in which this substance was compounded with others in different proportions, the desired result was obtained, the spots disappeared, from the plates and paper, the plaintiff had a remedy for these defects which no rival manufacturer possessed, and the “ doctor ”. ■came into existence. So important was this result regarded that it was kept under lock and key, and lest it should be discovered by other manufacturers, the different ingredients composing it were purchased in the name of a third party. Under these circumstances. can it be claimed that the “ doctor ” is neither a discovery, an invention nor a valuable secret?

And what is here said respecting this particular substance applies with equal force to some of the other articles claimed by plaintiff to be invested with a proprietary character.

The machine used for washing emulsion, although termed by Reichenbach an ordinary “washing machine,” turns out to be something more than that. lit other words, it is an “ ordinary washing machine" so altered and remodeled as to serve a new .and altogether different purpose from that for which it was originally designed, and when used in connection with a new method of placing the emulsion, which was also the result of experiments made by Reichenbach, it caused a great saving of time and labor.

So, too, the formula known as the “ peerless ” appears from the ■evidence to be. a modification or combination of other formulae which, while doubtless composed of similar ingredients, is so ■compounded as to produce better results and to give greater satisfaction. And so I might continue through the entire list of ■articles named by plaintiff, and show that in some particular, even though a slight and apparently unimportant one, each of them had its peculiar characteristics and variations, these characteristics and variations resulting from experiments ■made by some of plaintiff’s officers or agents. But enough has been said to indicate my views respecting this branch of the case, ■and I am unable to see why they do not coincide with the established rules of all civilized countries respecting inventions and the rights of inventors, the fundamental idea of which is to recognize as an invention the actual creative act of the inventor, although he may have called to his assistance the ideas and creations of other parties, provided such ideas and creations are so used as to achieve new results.

The remaining questions of fact relate to the intentions of the ■defendants, and their probable effect upon the plaintiff’s business. 'That defendants, while in its employ, did organize a new company, which was designed to engage in the same general business as that ■carried on by the plaintiff, is a fact so clearly established by the proof as to admit of no controversy. Indeed, it is virtually admitted in the answer. It is contended, however, that although it is their design to engage in this business, they do not intend to make use of any inventions, discoveries, or secrets in which the plaintiff has any proprietary interest. The real significance of this contention can be better understood, perhaps, when it is borne in mind that the main effort of the defendants from the very outset has been to show that the plaintiff has no such inventions, discoveries, or secrets. It would therefore seem to follow, as a logical sequence, that if, as a matter of fact, plaintiff did possess valuable secrets and inventions which were either disclosed or discovered while defendants were in its employ, they were to be made use of by this rival organization. And this, I think, is the fair construction to be placed upon the acts, language and conduct of the defendants. Their operations were carried on with the utmost secrecy, and their interviews with Millington and Brownell, as detailed by the last-named parties, -were almost ludicrous in this particular. Their “ prospectus” is so constructed as to relieve defendants Beichenbach and Passavant from any. liability under their contracts, and to make Milburn the responsible party, but the statements therein contained furnish, nevertheless, indubitable proof that the new company is intending to avail itself of certain trade secrets which, as has been shown, are the property of plaintiff. To particularize, the “ Corona film ” referred to is said to be “ a cut-sheet sensitive photographic film, made by a new process ; ” and concerning the bromide paper,” it is represented that 'the new company is peculiarly strong by reason of the fact that “we” have “ manufactured and sdld it for a manufacturer that has, at present, the market monopoly.” Mow, inasmuch as Beichenbach and Passavant were in plaintiff’s employ when this prospectus was issued, it necessarily follows that the “ new process ” for manufacturing film and bromide paper was either oné that was then in use by plaintiff, or else it was one wtiieh had been discovered by them or one of them while in plaintiff’s employ, and in either case it was the property of the plaintiff. The probability is, that the “ new process ” is the same as that concerning which so much evidence has been given, and which the defendants now insist is in no sense new.

To briefly summarize, then, the established facts of this case, it appears that the plaintiff is the owner of valuable trade secrets, which were either discovered by one or more of the defendants or, necessarily disclosed h them while occupying a confidential relation towards the plaintiff; that as to such trade secrets as were discovered by either Beichenbach or Passavant they have undertaken and agreed to give plaintiff the exclusive property in and control over the same; and that, in violation of this agreement, they are now proposing to make use of them, or some of them, in such a manner as to materially injure the plaintiff’s business.

With these facts established, the application of the legal principles which must govern the disposition of the case does not appear to be a very formidable undertaking. It may be safely assumed at the outset, I think, that whatever remedy plaintiff may have does not reside in a court of law.

The very nature of the case, the peculiar character of the in- " jury liable to be inflicted, and the incalculable damages which may possibly result, all show most conclusively that legal relief is totally inadequate for plaintiff’s protection, and that its only re- ■ sort must be to a court of equity. The learned counsel for defendants has contended, with all the adroitness and skill at his command, which is but another way of saying that -such contentian has been put forth with all possible adroitness and skill, that this case is not one of which a court of equity can take jurisdiction, and several authorities, of both English and American courts, are cited in support of this claim. I am constrained, however, to hold that the weight of authority is opposed to his view of the law. The question presented is an interesting one, and would justify a somewhat analytical review of the cases which bear upon either aspect of it, did time permit; but for the purposes of this adjudication it will be necessary to advert to such only as are deemed conclusive upon this court.

In Morison v. Moat, 9 Hare, 241, which is an English case, it was held that an injunction would issue to restrain the use of a secret in the compounding of a medicine, not being the subject of a patent, and to restrain the sale of such medicine by a party who acquired knowledge of the secret in violation of the contract of the party by whom it was communicated and in breach of trust and confidence. An appeal was taken from the decision of the vice chancellor, and in 1852 the case was affirmed by the court of chancery, and it was there held' that “ there is no doubt whatever that where a party who has a secret in trade employs persons under contract either express or implied, or under duty express or implied, those persons cannot gain the knowledge of that secret and then set it up against their employers.” Morison v. Moat, 21 Law Journal (N. S.), Equity, p. 248.

In 1868, the supreme court of Massachusetts recognized and followed the authority of Morison v. Moat, and in the opinion of Gray, J., the law is thus stated: If a party “ invents or discovers and keeps secret a process of manufacture, whether a proper subject for a patent or not, he-has not, indeed, an exclusive right to it as against the public, or against those who in good faith acquire knowledge of it, but he has property in it which a court of chancery will protect against one who, in' violation of contract and breach of confidence, undertakes to apply it to his own use, or to disclose it to third persons. The jurisdiction in equity to interfere by injunction to prevent such a breach of trust, when thb injury would be irreparable, and the remedy at law inadequate, is well established by authority.” Peabody v. Norfolk, 98 Mass., 452. The language above quoted was cited with approval in Salomon v. Hertz, 40 New Jersey Ch., 400, and it is almost identical with that employed by elementary writers of recognized standing in discussing the same question. Judge Story says: “Courts of equity will restrain a party from making a disclosure of secrets communicated to him in the course of a confidential employment, and it matters not in such cases whether the secrets be secrets of trade, or secrets of title, or any other secrets of the party, important to his interests.” 2 Story Eq., 952. See also High on Injunctions, vol. 1, page 15, second edition.

The same doctrine has obtained in this state for at least half a century, and has been enunciated by a line of decisions which, with a single exception, is unbroken. Jarvis v. Peck, 10 Paige, 118; Hammer v. Barnes, 26 How., 174; Champlin v. Stoddart, 30 Hun, 300; Tabor v. Hoffman, 118 N. Y., 30; 27 St. Rep., 756. The Champlin case was decided by the general term of this department, Smith, P. J., writing the opinion, in the course of which he takes occasion to say that “ a secret of trade is fully recognized in equity as property, the disclosure of which will be restrained by injunction.” By a careful reading of the various decisions upon this subject, it will be seen that some are made to-depend upon a breach of an express contract between the parties, while others, proceed upon the theory that where a confidential relation exists between two or more parties engaged in a business venture, the law raises an implied contract between them that the employee will not divulge any trade secrets imparted to him or discovered by him in the course of his employment, and that a disclosure of such secrets thus acquired is a breach of trust and a violation of good morals, to prevent which a court of equity should intervene. It may also be observed in this connection that the word “property,” as applied to trade secrets and inventions, has its limitations, for it is undoubtedly true that when an article manufactured by some secret process, which is not the subject of a patent, is thrown upon the market, the whole world is at liberty to discover, if ifc can by any fair means, what that process is, and, when discovery is thus made, to employ it in the manufacture of similar articles.

In such a case, the inventor’s or manufacturer’s property in his process is gone; but the authorities all hold that, while knowledge obtained in this manner is perfectly legitimate, that which is obtained by means of any breach of confidence cannot be sanctioned; and this distinction is quite forcibly presented in a recent decision of the cojirt of appeals, to which the attention of this court has been directed by the supplemental brief of defendant’s counsel. Judge Landon, in his opinion, speaking of the plaintiff’s claim, says: “ His case is unlike those in which the injunctive process of the court is sought .to restrain the disclosure of a secret, or the publication of a letter, which may prove injurious to business or character.” Bristol v. The Equitable Life Assurance Society, 132 N. Y., 264-267; 43 St. Rep., 786. But without multiplying citations or prolonging consideration of the legal aspect of this case, it may be said by way of conclusion that the principle contended for by the plaintiff is not only abundantly supported by authority, but is likewise founded in good common sense, and is peculiarly applicable to the case in hand. Here is a party which, by the expenditure of vast sums, of money and the exercise of much skill and ingenuity, has built up a large and prosperous business, the capital of which consists largely in certain inventions and discoveries made by its officers, servants and agents. The world at large knows nothing of these inventions and discoveries, because they are locked within the brains of those who conceived them. The defendants, who have-been largely instrumental in perfecting them, while under both an express and implied contract to give the plaintiff the benefit of their inventive genius, propose now to disregard their legal and moral obligations by creating a new establishment where these inventions and discoveries may be employed to plaintiff’s serious injury. This is not legitimate competition, which it is always the policy of the law to foster and encourage, but it is contra bonos mores, and constitutes a breach of trust which a court of law, and much less a court of equity, should not tolerate. It follows, therefore, that the plaintiff is entitled to the relief sought by this action, certainly as against the defendants Reichenbach and Passavant; and, as the defendant Milburn has allowed himself to engage in an illegitimate enterprise, with knowledge or the means of knowing what its operation involves, I can see no good reason why he should not be subjected to the same restraining process as his co-defendants. Judgment is accordingly directed against all three defendants, with costs of the action.