author: Davis, P. 3.:

text:
    In the Matter of the Petition of ORIGEN VANDENBURGH, Appellant, v. THE BROADWAY UNDERGROUND CONNECTING RAILWAY COMPANY and Others, Respondents.

      Qm'poration — board of directors to be chosen annually — effect of the failure of the board of dii'ectors to provide foi' it by a by-law — who we entitled to rote at an election held after the proper day therefor has passed — 1850, chap. 140; 1854, chap. 282 —S. 8., pwi. 1, chap. 18, tit. 4, Sees. 5, 8 — Seduction of numb&r of directors — 1864, chap. 582, sec. 3.
    Tlie defendant was organized under the general railroad act on May 27, 1880, and on that day its officers, including a hoard of thirteen directors, were duly chosen. The board of directors neglected to call any meeting of the stockholders for the election of directors, or to adopt any by-lsws relating to and regulating the election thereof until March 20,1882. On that day they met and adopted a by-law, providing that such an election should be held annually on the first Monday of June, in each year, and called a meeting of the stockholders for that purpose to be held on June 6, 1883. At the same meeting they issued certificates of the defendant’s capital stock to certain persons in payment of claims held by them against the company. At the meeting held on June 6th, the inspectors of election allowed the shares of stock so issued in March to be voted upon, against the objection of the owners of shares of stock which had been issued in 1880.

      Held, that section 5 of chapter 140 of 1850, as amended by chapter 383 of 1854 required a board of directors to be chosen annually, aud that the board of directors first chosen should adopt by-laws prescribing the manner $f such election.
    That in the absence of any by-law fixing a date within the year, the election should be held upon the recurrence in the following year of the day on which the first election was held, if that were a legal day.
    That the failure to adopt the by-law or hold the election did not dissolve the corporation, nor relieve the directors from the duty imposed upon them by the statute, and that their action, in adopting the by-laws and calling the meeting of the stockholders, was lawful and valid.
    That section 8, of title 4, chapterilS, of part 1 of the Revised Statutes, providing that where an election shall not be duly held on the day designated and appointed by the act incorporating the company, an election shall be held within sixty days immediately thereafter, and that “in all cases, no share or shares shall be voted upon, except by such person or persons who may have appeared on the transfer books of said company, to have had the right to vote thereon, on the day when, by the act of incorporation of such company, the election ought to have been held,” was applicable to the election so held, and that the inspectors erred in allowing the shares of stock issued in^ March, 1883, to be voted upon.
    At the election two tickets were voted upon, one containing the names of thirteen directors, and the other the names of seven directors. Upon a petition presented under section 5, of title 4, of chapter 18, of part 1 of the Revised Statutes, by persons who had voted the ticket containing the names of seven directors, to have the persons therein named declared entitled to that office:

      Held, that the ticket was not void because it did not contain thirteen names. That no stockholder was bound to vote for any larger number of persons than he chose, and that any number of persons who might receive a majority of the lawful votes were elected, although there was a failure to elect the full number required by law.
    That as the defendant’s road did not exceed fifteen miles in length, the act of a majority of the stockholders in so voting a ticket containing the names of but seven persons, operated under section 3, of chapter 583, of 1864, to reduce the number of the directors of the company, from thirteen to seven.
    That the court had power in their proceedings to declare the said seven persons to be the lawful directors of the defendant’s company.
    Appeal from an order made at a Special Term, denying an application made by the petitioner.

      Tbe petitioner sought, under section 5, of title I, of chapter IB, of part 1 of the Revised Statutes, to have an election of directors of the defendant company set aside, and have certain other persons declared to have been duly elected directors of the company.

      0. Yandenbwrgh, appellant in person.

      Robert Sewell, for the respondents.
   Davis, P. 3.:

The Broadway Underground Connecting Railway Company was organized as a corporation under the general railroad laws of this State, on the 27th day of May, 1880, and on that day its officers, including a board of thirteen directors, were duly chosen. The directors neglected to call another meeting of the stoclcolders for the election of directors until the 20th day of March, 1882, at which time a meeting of the stockholders was called by the board for the 6th day of June to elect thirteen directors and three inspectors of election. Pursuant to such call a meeting of the stockholders was held at the office of the company on the 6th day of June, 1882, at which time three persons, appointed inspectors' of election by the board, officiated as such, and the several persons named in this proceeding with the company, as respondents, were declared to be elected directors for the ensuing year. The board of directors had also wholly failed to adopt any by-laws relating to and regulating the election of directors until the 20th day of March, 1882, at which time they adopted a by-law in substance prescribing that such election should be held annually on the first Monday of June in each year, which by-law was published thirty days before the election held on the 6th day of June, 1882. Prior to the 8th day of March, 1882, but 205 shares of the capital stock of the company had been subscribed or issued, 190 of which were issued in October, 1880, to the petitioner, and fifteen shares to other parties who respectively held one share each; and these several persons appear to be on the books of the company the only shareholders entitled to vote for directors at that time. On the 8th day of March, 1882, the directors audited accounts for legal services in favor of Messrs. Campbell & Page to the amount of $15,000, and in favor of Robert Sewell for $10,000; and on the thirteenth of March following, 150 shares of fully paid stock were issued to Campbell & Page, and 100 shares to Robert Sewell in payment of their respective accounts ás so audited.

At a meeting of the stockholders held on the sixth of June for •the purpose of electing directors, two tickets containing the names of persons for directors were voted; one containing the names of George T. Curtis and twelve other persons for directors; the other containing the names of Harvey Sheldon and six other persons (not named in the first ticket) as such directors. This last ticket was headed as follows: “ Ticket to elect the following seven stockholders as a board of directors of the Broadway Underground Connecting Railway Company.” For this ticket the' petitioner, Origen Vandenburgh, voted the 190 shares of stock standing in his name on the books of the company since October 13, 1880, and his vote was received without objection. Harvey Sheldon voted on one share for this ticket, and the petitioner, by proxy, voted the same ticket for one share each held by two other persons, and' one other vote was cast for the same ticket by proxy. No objections were made to these votes. For the first ticket, containing thirteen names, three shares were voted which were issued in 1880, and no objection was made to these votes. Robert Sewell offered to vote on ninety-eight shares of the stock issued to him on the 13th of March, 1882. The petitioner challenged the right of Mr. Sewell to vote on this stock, and for that purpose read the following protest signed by him:

“I, Origen Vandenburgh, a stockholder entitled to vote at this election, challenge and deny the right of Robert Sewell to vote on the ninety-eight shares of stock of this company on which he now offers to vote, on the ground that said Robert Sewell did not appear on the transfer book of the company to have a right to vote thereon on the day when, by the act incorporating this company, this election ought to have been held. It appears by said book that he then had but one share of stock, and he now has the right to vote only on one share of stock.
“ That the ninety-eight shares, upon which Mr. Sewell now offers to vote, were issued to him since the first day of March last. That this election, for directors, was required by law to be held on some day between the 27th day of May and the 27th day of July inclusive, in the year 1881, and that, therefore, said Robert Sewell has no right by law to vote on said ninety-eight shares of stock at this election.
“ I inform the inspectors of this election that the books of the company show the above facts and demand their production for this purpose.
“ The law prohibiting Mr. Sewell from voting on this stock at this election is section 8, chapter 18, title 4, part 1 of ■ the Revised Statutes, together,with section 5 of the General Railroad Law, act of 1850, as since amended.
(Signed) “0. YANDENBURGH.”

This objection and protest were overruled by the chairman and inspectors of election and Mr. Sewell voted on ninety-eight shares for the ticket containing thirteen names. Mr. Sewell then offered to vote by proxy on 145 shares of stock issued to Campbell & Page on the 13th of March, 1882, and the same challenge was interposed. The challenge was overruled and the votes received in favor of the ballot containing thirteen names.

The inspectors at the close of the balloting announced the result of the election to be that George T. Curtis and twelve other persons named on the ticket for thirteen directors had each received 251 votes, and that the ticket headed by Harvey Sheldon, containing six other names, received 193 votes, and that the thirteen persons named in the former of these tickets were duly elected directors of the company for the ensuing year.

Upon these facts the question presented for our consideration is whether the votes challenged by the petitioner were entitled to be cast at the election.

By section 5 of chapter 140 of the Laws of 1850, as amended by chapter 282 of the Laws of 1854, it is enacted that “ there shall be a board of thirteen directors of every corporation formed under this act. to manage its affairs, and said directors shall be chosen annually by a majority of the votes of the stockholders voting at such election in such manner as may be prescribed in the by-laws of the corporation, and they may and shall continue to be directors until others are elected in their places. In the election of directors each stockholder shall be entitled to one vote, personally or by proxy, on every share held by him thirty days previous to any such election.” The first election of directors having been.held on the 27th day of May, 1880, it was the duty of the corporation to have held another election within or at the close of one year from that time. It was also its duty to have adopted by-laws prescribing the time and place of choosing directors at such election. Having failed to perform those duties the directors chosen on the 27th of May, 1880, by operation of the statute just cited, continued to be directors until others were chosen in their place. If there were no other statute affecting the question the right of the persons declared to be elected at the meeting of the 6th of June, 1882, would be indisputable. But the whole subject-matter of such elections, where a corporation has failed in its duty to hold, the same according to the requirements of the statute, is regulated and controlled by the general statute, which is applicable to this case.

That statute (1 R. S., 604, § 8) enacts in these words: If at any time hereafter the election for directors of any bank or other incorporated company of this State shall not be duly held on the day designated and appointed by the act incoiporating such bank or other incorporated company, it shall be the duty of the president and directors of such bank or other incorporated company to notify and cause an election for directors to be held within sixty days immediately thereafter, and in all cases no share or shares shall be voted upon, except by such person or persons who may have appeared on the transfer books of said company to have had the right to vote thereon, on the day when, by the act of incorporation of such company, the election ought to have been held, which said right so to vote shall be exercised by the persons so appearing as aforesaid upon the transfer books of such company, on any day when such election may be held.”

This provision is general in its terms and applicable to all corporations which are not excluded from its operations by express statute or necessary implication. We think it is applicable to elections of directors in such cases as that now before us. The statute of 1850 does not specify the date on which the election shall be held, but it declares that they shall be held annually, and that is equivalent to an express requirement in the absence of any bylaw fixing a date within the year that the election shall be'held upon the recurrence in the following year of the day on which the first election was held, if that be a legal day. In no other way can the provisions of the statute which declares that directors shall be elected annually be complied with. The effect of not complying with that statute set in operation the provisions of the Revised Statutes above quoted, and it became the duty of the president and directors to notify and cause an election for directors to be held within sixty days immediately thereafter.

It is argued that the provisions of the act of 1850 requiring the elections to be annual was inoperative in this case because no by-law had been adopted regulating the manner of holding such election as is also required by that act. Undoubtedly it was the duty of the directors to have adopted such a by-law. The failure to do so was an omission of duty, and, therefore, illegal. The contention is that this illegal neglect to adopt a by-law, rendered the omission to call a meeting for the election of directors a legal one, and, therefore, that the election was not illegally passed, and that as the provision of the Revised Statutes has reference solely to elections which have been illegally passed, it does not apply to this case. But this position is not sound, either in law or logic, for both the omission to adopt the by-law and to hold the election were illegal, and neither can justify the other. Hence, the directors in this case cannot justify the passing of the annual election by asserting their own illegal non-feasance in failing to adopt a by-law regulating the mode, time or place of conducting it. The directors cannot be heard to say that “ inasmuch as we did not enact a by-law, which the law required, we are not bound to hold an election which the law also required, and are not, therefore, subject to a statute which piovides for such election after a failure to hold it as required by statute.” Instead of having that effect, the omission to perform the two duties, under the act of 1850, made more imperative the duty imposed by the prior statute. The election should, therefore, have been called and held within sixty days after the failure to hold the annual election. If this be not the correct construction of the statutes, then the directors first chosen may, by their own wrong, continue themselves in power for an indefinite period, by simply refusing to perform statutory duties, and this, we think, the law will not tolerate. But the failure to hold the election which the statute required in 1881 did not destroy the corporation. It continued, in full vigor until by some action of the State its existence should be terminated for neglect of duty. So the duty to adopt a by-law and to hold an election of directors, still remained in force. The adoption of the by-law, on the 20th of March, 1882, was, therefore, a lawful act; and the calling and notice of the election for the sixth day of June, in pursuance of the by-law, were also lawful; and this brings us to the question of the case, which is, whát stockholders were entitled to vote at that election ?

Section 8 of the Revised Statutes, providing the time within which the election shall be held, is undoubtedly directory; and if the election be not held within sixty days immediately after the failure to hold the annual election, it can be lawfully held at a later period. But that does not abrogate the other provisions of the statute. The statute not only seeks to compel the election within the prescribed time, but it proceeds for a manifest purpose to declare what shares of stock shall be voted upon when such election is held. That purpose is clearly to defeat any intent or attempt to control a subsequent election by creating or issuing new stock within the intervening period. If this provision were not made, a board of directors by its neglect, of duty could not only carry over the election beyond the prescribed period, but might continue to do so until such manipulations of stock could be made as would enable them to keep themselves in power. The statute intended to prescribe a rule which would prevent this sort of proceeding, as far as piacticable, by enacting that at such subsequent election no share or shares of stock should be voted upon except by such person or persons as shall appear, on the transfer books of the company, to have had the right to vote thereon on the day when the election ought to have been held. This barrier against fraudulent conduct is required by the statute to be applied whether any fraudulent conduct in fact appears or not; and no court is justified in disregarding it, because in a particular case the conduct of the directors may not have been tainted with wrongful intent. In our opinion, the rule prescribed by the statute was in as full force and operation when the election was held on the 6th of June, 1882, as it would have been if such election had been held within sixty days after the expiration of the first year.

It appears very clearly in the case that the stock which controlled the election under the ruling of the inspectors was issued in March, immediately preceding the- election, and had no existence at the time when the election ought to have been held. The scheme of the statute would therefore be defeated in this case by allowing such stock to be voted upon at the election of June 6, 1882. It was properly challenged, and as we think, upon substantial grounds, and the vote upon it should have been rejected. If all stock of that character had been rejected, the ticket containing the name of thirteen directors would have received but three votes, while the ticket containing the name of seven directors received 194 votes, and the result would be that the seven persons named would have been chosen directors. That ticket was not void because it did not contain thirteen names. No'stockholder was bound to vote for any larger number of persons than he chose, and any number of persons receiving a majority of lawful votes are elected, although there be a failure to elect the full number required by law. The result of that view is, that it is the duty of the court to declare that the persons named-as candidates on the ticket containing seven names were lawfully elécted, and they would be sufficient being a majority of thirteen, to constitute a board although there might be a failure to elect others. But section 3 of chapter 582 of the Laws of 1864 provides that any railroad company whose main route of road does not exceed fifteen miles, may elect seven of its stockholders as a board of directors to manage its affairs, at any annual election after the passage of this act. (2 R. S. [6th ed.], 520.) The proposed railroad in this case is but two miles in length. It was therefore in the power of the stockholders to reduce the number of the directors to seven. It was not necessary that that should be done by the action of the board of directors, because the statute clothes the electing body with that power. “ Any railroad company may ” do this, is the language; and the stockholders at any election are} for the purposes of such election, the company. The stockholders, we think, .sufficiently conformed to the requirements of the act. In the ticket which they voted they declared their intention to elect seven stockholders as a board of directors of the railway company. That power the directors could not take from the stockholders. Any construction that permitted them to do so would virtually abrogate the statute granting the power, as a board of thirteen would have absolute control of the question whether their number should be reduced or not. The statute did not intend to leave it- to the board, but to the stockholders themselves when they should convene for the purpose of electing a new board of directors, and if the majority express that intent in the body of the ticket, it is as effective, we think, as though it had been done by a formal resolution entered in the minutes of the meeting.

Under the rule of practice laid down by the court In the Matter of Desdoity (1 Wend., 98), the court has power to proceed to declare which contesting board of directors is lawfully chosen. As we have reached the conclusion that the seven persons named in the ticket headed by Harvey Sheldon were duly chosen, it is our duty, we think, to adjudge that they are the lawful directors.

The order of the court below should therefore be reversed, and the prayer of the petition granted, with costs of the appeal, besides disbursements.

Brady and Daniels, JJ., concurred.

Order reversed and petition granted, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: DAvis, P. J..: Lawrence, J.

license: Public Domain

text:
    In the Matter of WILLIAM M. WRIGHT, S. CONANT FOSTER and HENRY H. WALKER.

      Park commissioners in New York — power of, to pass ordinances — 1871, chap. 290, sec. 6; 1873, chap. 335, see. 33 — Reasonableness of such .ordinance — the question of fact, as to whether it is reasonable, is not triable on the return to a writ of habeas corpus.

    Section 6 of chapter 290 of 1871, and section 33 of chapter 335 of 1873, confer upon the park commissioners the full and exclusive power to govern, manage and direct the several public parks, squares and places in the city of New York, and a resolution or ordinance passed by them, in pursuance of the power so conferred, providing that no bicycle or tricycle should be allowed in the Central or city parks is valid, and cannot be held void as being unreasonable.
    The question of fact, as to whether or not such ordinance is unreasonable, cannot be tried upon the return to a writ of habeas eoipus issued upon the application of persons committed for the non-payment of fines imposed upon them by a police magistrate after they had been tried before him for a violation of the ordinance.

      Appeal from an order made at a Special Term dismissing several writs of habeas corpus, and remanding the appellants (the applicants) severally to the custody of the warden of the. city prison.

      Edmund Webmore, for the appellants.

      George P. And/t'ews, for the City of New York, respondent.
   DAvis, P. J..:

In disposing of the several writs of habeas corpus in the court below, the following opinion was pronounced by the court:

Lawrence, J.

On the 7th day of July, 1880, the commissioners of the Central Park adopted the following resolution or ordinance:

“Jdesobved, That no bicycle or tricycle be allowed in the Central or city parks.”

The petitioners were arrested for a violation of this ordinance, and having been committed for the non-payment of the' fine imposed upon them by the police magistrate, they were brought before me on writs of habeas corpus, and they allege in substance, in their traverse to the returns to said writs, that the ordinance in question is unreasonable, and therefore void.

By chapter 290 of the Laws of 1871 it is provided: “ Section 6. * * * * And the said board shall have the full and exclusive power to govern, manage and direct the said several public parks, squares and places; to pass ordinances for the regulation and government thereof, and generally in regard to said public parks, squares and places, they shall possess all the powers and authority heretofore possessed by the mayor, aldermen and commonalty of said city in respect to the public parks, squares and places in said city, and all persons offending against such ordinances shall be deemed guilty of misdemeanor, and be punished on conviction,” etc. (Vol. 1, Laws of 1871, p. 572.)

And by section 83 of chapter 335 of the Laws of 1873, the powers and duties belonging to the department or commissioners of parks were devolved upon and continued in the department of public parks thereby created. It will be observed that the power conferred by the act of 1871 upon the commissioners is very broad and comprehensive. The act declares that they shall have the full and exclusive power to govern, manage and direct the said several public parks, squares and places. This vests in the commissioners the widest discretion, and no court would, in my opinion, be justified in setting aside a provision made by the commissioners for the regulation, government, management or direction of the parks, except in the clearest of cases.

After examining the evidence in this case, I am forced to the conclusion that the ordinance in question is one which, under the statute, the park commissioners were authorized to adopt, and that even although if I were acting in their place, I might not regard such an ordinance as necessary, it is not in a legal sense so unreasonable as to warrant me in substituting my judgment for the judgment of the commissioners. It is perhaps hardly necessary to cite authorities, but 1 will refer to a few cases in this connection. In the case of the Buffalo and Niagara Falls Railroad Company v. The City of Buffalo (5 Hill, 209) it was held that a statute giving power to the common council of a city to regulate the running of railroad cars within the corporate limits, authorizes the adoption of an ordinance, entirely prohibiting the propelling of cars by steam through any part of the city. In that case Nelson, C. J., says: “Power over the subject is given in general terms, and was doubtless intended to be broad enough to enable the public authorities to control and-regulate the running of cars in a way compatible with the public interests of the city, and the proper security of the persons and property of its inhabitants. A large discretion is, therefore, conferred upon the common council. They are to £ regulate ’ the running of the cars; that is, according to the ordinary acceptation of the term, to prescribe rules or laws by which the £ running ’ of cars within the city is to be governed, and the power may, without any strained construction, well apply to the means or force by which the cars are propelled. A right to regulate the running ’ seems ex -vi termini to imply an authority to regulate the power by which they are driven.”

In Cronin v. The People (82 N. Y., 318) it was held that the common council of the city of Albany, who, by the charter, were authorized to enact ordinances to regulate the erection, use and continuance of slaughter houses, had power to pass an ordinance prohibiting the slaughtering of animals within certain specified portions of the city.

In Schanck v. The Mayor (10 Hun, 124) it was held that where the charter of the city of New York provided that the common council shall have no power to make a lease of any real estate or franchise, save at a reasonable rent, the decision of the question as to whether or not the rent reserved is a reasonable one is left to the discretion of the common council, and in the absence of fraud or collusion its decision is conclusive. This case was affirmed by the Court of Appeals (69 N. Y., 444).

In the New York mid Harlem Railroad Company v. The Mayor of New York (1 Hilt., 562-588), Hilton, J., says: Courts are bound to assume that where a discretion is vested in a municipal body exercising functions of a legislative character,' good reasons existed for the adoption of a regulation or ordinance which was the result of such a discretion.”

In the City of Brooklyn v. Breslin (57 N. Y., 596), Earl, Comr., says: “ It is also claimed on behalf of the appellants that the ordinance is void as being in restraint of trade, and unreasonable, unjust, restrictive, arbitrary and oppressive.’ It is sufficient to say that the wisdom and expediency of granting such power to the city were within the legislative power of the State government to decide, and it cannot be said that the ordinance was more than a proper regulation of a particular branch of business for the good order of the city and the protection of the persons and property of its citizens,” etc.

These authorities seem to me amply to sustain the proposition that the ordinance in question was within the discretionary power of the park commissioners, and that the court cannot say, as matter of law or fact, that it is unreasonable. On the argument much stress was laid upon the fact that bicycles are admitted in Eairmount Park, Philadelphia, in the streets of Boston and London, and other places. Precisely what the powers are of the authorities in those cities over their public parks and streets does not appear from anything in the case. If they have the same powers as the park commissioners the not uncommon spectacle is presented of two bodies having similar discretionary powers, differing in judgment as to the mode and maimer in which that discretion shall be exercised. But however that may be, it seems to me to be a sufficient answer to any argument sought to be deduced therefrom that in this city the legislature has vested the power of determining what shall be done in regulating, governing, managing and directing the several public parks in the park commissioners, and with their determination, as the authorities already cited show, in the absence of fraud or collution, the courts cannot interfere.

The rule in such case is forcibly stated by Lowbie, Justice, in Fisher v. Harrisburg (2 Grant’s Penn. Cases, 291, 296).

The learned justice says: “ Where the municipal legislature has authority to act, it must be governed not by our, but by its own discretion, and we shall not be hasty in convicting them of being unreasonable in the exercise of it.”

In conclusion, I am of the opinion that the ordinance in question is valid and binding, and that, therefore, the writ of habeas corpus should be dismissed, and the prisoners remanded.

We concur in the reasoning-and conclusions-of this opinion, and in the correctness of the order remanding the petitioners.

We think also that the writs should have been dismissed, and the petitioner remanded without proceeding to the trial of the question as one of fact whether the ordinance was or was not a reasonable one.

The court has no jurisdiction on habeas corpus after convictions in criminal eases, to retry questions of fact upon which the correctness of the judgment of the court in which the petitioner was convicted depends. Such questions must be tried and determined by the court having jurisdiction to try the alleged defense. So far as the reasonableness or unreasonableness of the ordinance depended on questions of fact, the place for their trial was the court of the police justice, and the judgment of that court could only be reviewed on appeal, or writ of certiorari, by the appellate court having jurisdiction to hear such appeal.

The return to the writ of habeas corpus in these cases showed nothing more than the commitments issued by the police justice. They recited the arrest, tidal and judgment of the court convicting the petitioners of violating the ordinance. No question was made as to their sufficiency of form. None of the proceedings had before the police justice were brought up, and it must be assumed that the trial was in all respects regular. The traverse simply presented the fact that the ordinance so violated was one enacted by the park commissioners prohibiting the use of bicycles in the Central Park, and alleging that such ordinance was unreasonable and void by reason of the fact set forth in the petition.. It is not the province of the writ of habeas corpus to retry any questions of fact upon which the findings of the court of original jurisdiction must be presumed to have been predicated. And unless it appear as matter of law that the ordinance is vdid it is the duty of the magistrate to remand the petitioner, leaving him to his remedy of review by appropriate proceedings. A very erroneous impression of the purpose and office, of the writ of habeas corpus seems to be rapidly perverting it from a writ of relief from unlawful imprisonment to one of review for the retrial of questions of fact, or the reconsideration of questions of law, clearly within the jurisdiction of the court or officer 'who has passed upon the case and committed the accused. In this case the retrial of the question of the reasonableness of the ordinance as one depending upon facts has occupied a long time, and the evidence extends through several hundred printed pages.

The opinion of the' learned judge at Special Term has correctly disposed of all the questions, and our reference to the practice is only needed to enable us to disapprove of the unnecessary and illegal course often taken in proceedings where petitioners have been tried or examined and committed by a court having jurisdiction of both the person and subject-matter.

The order should be affirmed.

Daniels, J., concurred.

Present — Davis, P. J., Daniels and Macombee, JJ.

Order affirmed.


author: Daniels, J.: Davis, P. J.:

text:
    CHARLES T. PLIMPTON and GEORGE A. SAWYER, Appellants, v. JOHN BIGELOW, Respondent.

      Attachment — when the stock of a foi'dgn corporation having its place of business in this State is subject to it— Code of Civil Procedure, secs. 644, 647, 649, subd. 3.
    The plaintiffs, residents of the State of Massachusetts, brought this action to recover the amount unpaid upon certain promissory notes made by the defendant. Certain shares of stock owned by the defendant in the Hat Sweat Manufacturing Company were levied upon under an attachment issued herein, the papers being "served by the sheriff upon the treasurer and secretary of the company, who resided in the city of New York. The company was incorporated under the laws of the State of Pennsylvania, but its office and factory were located in the city of New York, and its business was there carried on, two of its three directors being residents of that city.

      Held, that the company might be treated as though it were a domestic corporation, and that its stock might be here attached by a creditor of its owner.
    Appeal from an order made at Special Term, vacating the levy of an attachment on the shares of the defendant in the Hat Sweat Manufacturing Company.

      Edward I). Bettens, for the appellants.

      Simon Sterne, for the respondent.
   Daniels, J.:

The plaintiffs, who resided in the State of Massachusetts, brought this action to recover the amount unpaid upon promissory notes made by the defendant. The demands were such as were the proper subject of an attachment under the provisions of the Code, and the plaintiffs were entitled to institute their suit, for the recovery of the amounts claimed, in this court. And for the purpose of obtaining satisfaction they could lawfully avail themselves of all the legal remedies provided by the Code for that object. (Hibernia National Bank v. Lacombe, 84 N. Y., 367, 385.)

Under this authority they had a right to seize whatever property or interests the law of this State rendered the subject of attachment. And by virtue of its provisions the sheriff, in form, levied upon the shares owned by the defendant in a corporation formed under the laws of the State of Pennsylvania, and known as the Hat Sweat Manufacturing Company. This seizure was set aside on motion of the defendant, for the reason that the shares were not deemed subject to the power or operation of the attachment. Whether this decision was correct is the chief point in controversy upon this appeal. Ordinarily, where neither the owner of the shares nor the corporation itself can be found within this State, the attempt to make a seizure of this nature would be entirely ineffectual. For the sheriff, in executing an attachment, can only seize the property of the debtor which may be found within his county, and where the owner of the shares, as well as the corporation issuing them respectively reside and is located in another State, the shares themselves would not be within the county in which the attachment might be issued, and for that reason would be incapable of being levied upon by means of it. But this was not a case of that description. For while the corporation was formed under the laws of the State of Fennsylvania, one of its objects was to transact business in the city of New York, and as a matter of fact its chief place of business was there located where it manufactured goods, made its business arrangements, paid its bills and carried on its general business, and two of its three directors were residents of the city of New York. For this purpose its capital, to a very considerable extent, certainly must have been brought to this State and invested in such business, and the profits to be derived by it, and from which the dividends would be made upon its stock, would in that manner be obtained from this State. To that extent it enjoyed all the rights and privileges' of a domestic corporation, and placed itself, by its operations, within the county in which the plaintiff’s attachment was afterwards issued. So’ far as the defendant was the owner of the shares of the corporation, he, himself, was interested through them in its capital and the business carried on by it. (Burrall v. Bushwick R. R. Co., 75 N. Y., 211.) His stock, of which the certificates held by him were, evidence of his title, was actually therefore within this State, and as such should be subjected to the satisfaction of his obligations to his creditors. There could be no more reason for exempting his shares from those obligations, than there would be if the corporation itself had been organized and existed under the laws of this State. For its business pursuits were carried on substantially the same as if this particular corporation had been created under its laws. There was clearly no substantial difference upon which the owner of such shares could claim immunity. The purpose and object of the corporation was the manufacture and sale of its fabrics, and that business is shown to have been confined to the city of New York. It was here carried on by the corporation through its officers and agents. To that extent it located itself in this city, as it was contemplated it might, under its articles of incorporation, and it was consequently a corporation within this county. ' • ■

The law has provided in general language that the rights or shares which the defendant has in the stock of an association or corporation, together with the interests and profits thereon, may be levied upon ” under an attachmént. (Code of Civil Pro., § 647.) This section has in no manner been confined in its effect to corporations formed under the laws of this State. It is, of course, to be construed with section 644, requiring the property to be levied upon to be within the county, and that is the only restraint to which this general enactment has been subjected; and the association or corporation whose share3 may be so levied upon may as well under this language be one formed under the laws of another State as though it was formed under the laws of this State. And that this section was intended to be so construed is evinced by the circumstance that when a discrimination is intended to be made the Code by its provisions has designated the particular corporation as either domestic or foreign corporations; and care has been taken to preserve this distinction by a definition to that effect given in the Code itself. (Code of Civil Pro., § 3343, sub. 18.) By this definition what shall be known as a domestic corporation has been declared and every other is denominated á foreign corporation. Where no such discrimination as that has been made, and the language is appropriate for that purpose, it is therefore to be presumed that it was intended to include all corporations, and that employed in the section already referred to is of that character. A provision of a like general nature was considered in Southern Life Insurance Company v. Packer (17 N. Y., 51), and it was held to include corporations formed in other States as well as those created under the laws of this State, and no reason appears for distinguishing the present case from the principle of construction established by that authority.

The Code has prescribed the particular manner by which the shares of the defendant in a corporation may be seized under an attachment, and that is the only other qualification to which the exercise of this authority has been subjected. To make such a seizure, a copy of the attachment with notice showing the property attached is to be left with the president or other head of the association, or corporation, or secretary, cashier or managing agent thereof. (Code, § 649, sub. 3.)

Whenever the corporation by means of its operations in business may be within the county in which the attachment has been issued, and these requirements can be observed, there the Code has provided for the seizure of the shares owned in it by the defendant. And this is all that has been provided for, to constitute a literal compliance with all the provisions made on this subject by the statute. When that may be done it was clearly the intention of the law that such shares might be effectively levied upon by means of the attachment.

It has been stated generally, in a recent work upon this subject, that the right to attach the shares of a defendant in a corporation is restricted to those corporations existing under the laws of the State in which the attachment may be issued. (Drake on Attachments [5th ed.j, § 244.) This general statement of the law was made upon the authority of Moore v. Gennett (2 Tenn. Ch., 375), and it was so generally- considered in the opinion of the court. But the case was not determined upon that point, for it appeared that the interest of the defendant in the shares themselves was neither in fact nor in form levied upon under the attachment.

No lien upon or title to the shares could therefore be maintained, and for that reason, principally, the right and claim of the creditor were rejected. The inability of the creditor to attach the debtor’s shares in a corporation created under the laws of another State was maintained, so far as it was considered, substantially upon the authority of Steel v. Smith (7 Watts & Sergt., 447). But that is in no sense an authority upon this point. It was an action upon a judgment recovered in the State of Louisiana, where the suit was commenced by a seizure of the debtor’s property, and this was held to create no personal liability against the debtor upon which the action could be maintained. These authorities consequently do not maintain the general statement of the law made by this authority. It undoubtedly would be a correct statement of it where neither the debtor himself nor the corporation by which the stock was issued to him-should be within the State when the attachment is issued. But such were not the facts of this case as they have been presented by the affidavits. For here the corporation had voluntarily placed itself within this State, where its active and principal business operations were transacted. The case of Danforth v. Penny (3 Metc., 564) is entitled to no broader application. For the statute under which it arose was so construed as to be intended to place corporations on the same footing as to liability as that of individuals which had previously been held not to include the residents and inhabitants of any other State. It is no authority for limiting the provisions of the Code, so far as to exclude a case of the nature of that now before the court.

What the law may be upon this subject is necessarily for the legislature to declare, and when that declaration has been plainly made, it is the duty of the courts to follow and enforce it, even though it may not be in accord with the views expressed upon the same subject by the courts of a neighboring State. The legislative purpose as to attachment proceedings has been clearly defined by the provisions which have been made in this State, and by them the shares of a defendant in a corporation have been rendered the subject of seizure by virtue of an attachment whenever the proceeding particularly specified can be taken and followed.

This was a case of that description, for one of the resident directora of the corporation, whose shares were owned by the defendant, was its treasurer and secretary, and in the seizure of the shares a copy of the attachment, together with a notice that those shares were levied upon, were served upon this officer, and to promote the proceedings, as he was required by the law to do that, he made his certificate, stating the number of shares owned by the defendant in this corporation. The terms, as well as the spirit, of the statute, were fully complied with, and as the corporation carried on its business and had the bulk of its property in this county, that was all which could be required for the lawful seizure of the shares under the attachment.

The fact that by the provisions of the statute prescribing the time within which an action for the collection of a debt may be instituted, such time may appear to have expired before this suit was commenced, will not justify the order from which the appeal has been taken. For by section 413 of the Code of Civil Procedure this objection can only be taken by answer. This section is clearly imperative, and renders an examination of the authorities relied upon by the respondent on this subject unnecessary at this time.

The case is an important one, and it is known as a matter of fact that the learned Judge by whom the order was directed, from which the appeal has been taken, entertained grave doubts as to its propriety. If it should be sustained in this instance, then every creditor, whether a resident or not a resident of the State, would be deprived, in cases of this description, of the pow^r, through the intervention of its tribunals, to obtain satisfaction of their debts, simply because the corporation, prosecuting its business enterprises within this State, had elected to organize itself under the laws of another State. The distinction between this corporation and ■ a corporation formed under the laws of this State, in view of the other facts made to appear, was simply nominal, and the consequence should be held legally to follow that the debtor, profiting in the same manner by the operations of the corporation as he would if it had been formed under the laws of this State, should not be exempt from the compulsory means provided by law for satisfying his debt. Such a distinction should not be made without some provision in the law indicating the necessity of its adoption. No such provision has been inserted in the Code as' it now exists. But' those which have been enacted plainly require a different view to be taken of their effect.

The order for these reasons should be reversed and an order entered denying the motion 'made by the defendant, but without costs..

Davis, P. J.:

I concur on the ground that for all practical purposes the Hat Sweat Manufacturing Company may be treated in this case as though it were a domestic corporation. Though organized under the laws of Pennsylvania, yet its office, factory, business and officers are located and conducted in this State. Its stock may be properly deemed to be in this State, so that it may be attached here by a creditor of its owner. The question is not free from doubt but it seems to me proper to solve the doubt in favor of the plaintiff.

Present — Davis, P. J., and Daniels, J.

Order reversed and order entered denying motion, without costs.


author: Beady, J.: Davis, P. J.:

text:
    THE ELECTRO-SILICON COMPANY, Appellant, v. EDWARD C. HAZARD and FRANK GREEN, Respondents.

      Trade-mark — wTiat words may be adopted and used as.

    The plaintiff and its predecessors had for the past twenty years been engaged in preparing and selling a finely pulverized white powder, which they called electro-silicon, and which was used for polishing gold, silver and other metals. It appeared that the preparation, which was made from an infusorial earth, was first prepared by the plaintiff’s predecessors, and sold by them under the name of electro-silicon, and also of silicon, these words being coined for and adopted by them as a trade-mark, a declaration to that effect being filed in the office of the secretary of State of California and in the Patent office at Washington. The powder was sold for many years, and became valuable for the purpose for which it was designed.
    The words electro-silicon or silicon are not descriptive of the article, although it contains some silicon, in the form of silica, or silicic acid; silicon itself is not, and from its nature cannot be an article of commerce; it exists in very minute quantities, and is an elementary body closely allied to carbon, existing as a dark brown powder or steel gray mass, according to circumstances^ it is never found in an unconibined state, but only as a component part of compounds, resembling it in no respects, from which it has been separated in very small quantities to furnish specimens for cabinets:

      Held, that the plaintiff had, by its adoption and use of the words as a trade-mark, acquired a right so to iuse them, and that it was entitled to restrain their unauthorized use by the defendants.
    Appeal from an order of tlie Special Term denying a motion to continue an injunction.

      Philo Chase, for the appellant.

      Hugh Porter, for the respondents.
   Beady, J.:

It appears from the papers submitted upon this appeal that about twenty years ago a company in California, called the Electro-Silicon Company, began to put up for sale the article now sold by the plaintiffs under the name of electro-silicon. The company, for the purpose .of designating and distinguishing and, indeed, identifying its article with itself as the manufacturer and proprietor, gave to it its own name, electro-silicon, with the two words united so as to form- a compound word, and determined to use this word as its trade-mark. The original proprietor caused the term thus coined to b.e registered as such in the office of the secretary of State of California and in the patent office of the United States at Washington. There was a change of ownership, but the successors of the company, Coffin, Reddington & Co., and the plaintiffs, who became the owner, put up the article with the compound title printed upon its boxes and labels.

It also appears that the article thus designated has acquired a high reputation, and is extensively sold throughout this country and to a considerable extent in Europe, and that the plaintiff and its predecessors expended large sums of money in advertising and creating the business which is done in the article under the name mentioned, and further that when the original proprietor adopted the compound name mentioned as a trade-mark for its article, no other article of trade had ever been called by the name adopted, or by the designation silicon ” and that no article of polishing powder besides the plaintiffs’ had been sold in the market by the name of electro-silicon ” or of silicon,” except the defendants’, which has recently been put upon the market, save an article which was sold under the same name by two persons named Trask and Levy, both of whom were enjoined soon after the infringement was discovered and alleged. It also appears that the plaintiff’s article has heretofore been sold by the defendants, and further that it is not only known by the name of electro-silicon,” but by “ silicon ” alone, by which term it is often called for by consumers. The article itself is a white, finely pulverized' powder composed of infusoria, i. <?., deposits of minute animals found in the State of Nevada and in some other places, and showing when analyzed the chemical element silic acid, or silicon, plus oxygen in a large proportion.

It is said by Professor Chandler, who subjected some of it to chemical analysis and microscopical examination, to be what is called infusorial silica; that it is composed of silicon skeletons, or shells of microscopic organisms, called “ infusoria,” chemically consisting chiefly of silica, with a certain quantity of water and a little oxide of iron, its proper name in the language of science being “ infusorial earth,” or u infusorial silica,” or, speaking chemically without any reference to its origin, “ silica; ” and he says that the name “ silicon ” is entirely improper as a scientific name for the substance, or as giving a true idea of its chemical composition, for the reason that silicon is an element most nearly resembling in its chemical character the element carbon. He further says that this'silicon is not a commercial article; it is only known as a chemical curiosity in the laboratory, and is never sold except as a chemical curiosity in very small quantities, for teachers of chemistry to exhibit to their pupils, and that it appears either as a dark brown powder, as black lustrous plates, or in dark needle-shaped crystals, and never resembles, in any way, the substance known as “ silica; ” and further, that silicon is never found as a natural material. It occurs in nature only in chemical combination with other substances as a constituent of various minerals, such as the emerald, the topaz, the garnet, etc., and that it has no commercial value, and is not, properly speaking, an article of commerce.

And Mr. Morton, who is president of the Stevens Institute of Technology, in Hoboken, New Jersey, and who formerly occupied the chair of chemistry in the University of Pennsylvania, at Philadelphia, and who, for more than twenty years, has devoted himself to the study and practice of chemistry, stated that he received a lump of infusorial earth, of which he made an analysis and which he also examined with a microscope, and found that it was in fact a material known as infusorial earth, consisting of minute fragments of the silicon skeletons of infusoria, and that its composition was essentially silica, containing also a little water and some oxide of iron. And he further said, to designate this article in its natural or manufactured state, silicon would be, in .a scientific sense, entirely improper and indeed absurd, and would be in no wise descriptive of the material here in question, which would certainly not be recognized by that, because silicon is the proper name and designation of one of the elementary bodies closely allied to carbon, and existing as a dark brown powder, or steel gray mass, according to circumstances. The proper name of the article examined by me as above and herewith produced is infusorial earth, and in chemical composition it is essentially silica.

And in a second affidavit he said that for the fuller exposition of the subject he desired to add that the “ silicon ” described by him in his first affidavit is never found in nature in an uncombined state, but only exists as a component part of compounds resembling it in no respect. It has been separated from such compounds so as to exist by itself, only in a very small way, so -as to make specimens for exhibition in chemical cabinets, and has never been so produced in any quantity, and is entirely unknown as an article of commerce. The entire amount of silicon existing in all the cabinets of the world would not probably exceed a few pounds.

The only pi’ofessional chemists examined on behalf of the defendants, in response to the facts thus detailed by Professors Chandler and Morton, was Professor Doremus, who is a known authority in matters of chemistry; but the learned professor does not controvert these allegations. He says that the article under consideration is known to science under various names, such as infusorial earth, infusorial silica, and silica; that it is also known to science as an oxide of silicon, i. e., silicon in combination with oxygen, and that while not pure silicon, yet, in view of the large quantity of silicon it contains, he regards the word silicon as reasonably descriptive of the same in a commercial sense; that it is a matter of common occurrence to find in the market an article of merchandise the popular name of which is not scientifically accurate, and as an example of this he said : “We find that the white oxide of arsenic known to the public as arsenic, and sold under and by that name, whereas arsenic is an element like silicon ; ” and, further, that “ the candles known in the market as stearine candles, and commonly sold under and by that name, are not made of stearine but from stearic acid; and candles known in the market as wax candles, and commonly sold under and by that name, are made of paraffine and contain no wax.”

The professor, therefore, so far as he may be regarded as departing from the conclusions at which Professors Chandler and Morton arrived, must be said to be presenting his views in an argumentative form, and they have not for that reason the force of the. depositions made by these experts. It is quite apparent from the statements of both of these gentlemen, and particularly from that of Professor Morton, that silicon is not a word descriptive of the article which is put up by the plaintiffs. He says: “ As we have seen that the amount of silicon existing in all the cabinets of the world would probably not exceed a few pounds; and, of course, obtainable in such limited quantities and being the result of chemical combinations and the product of the laboratory, it would be impossible for it to become an article in commercial use.

The words electro-silicon cannot, therefore, be regarded as descriptive of the article which is sold by the plaintiff.

In confirmation of this conclusion we find that in Webster’s Dictionary the word silicon is defined to be a dark, nut-brown elementary substance, destitute of metallic lustre and a non-conductor of electricity; it is the base of silax or silica. And the definition of silica, according to the same authority, is a silicic acid in a state of purity. Indeed, in the action brought by the Electro-Silicon Company v. Trask (59 How. Pr., 189), Justice Van' Vobst has stated in his opinion, as appears in this case, that the words electrosilicon are a combination wholly arbitrary and coined for the purpose of creating a trade-mark. And it is stated in the affidavit of Mr. Levy, which was read on behalf of the defense, that in the action brought against him by the Electro-Silicon Company, and decided by Justice Van Vorst, the learned justice found that the article electro-silicon was a white, finely pulverized powder, as already stated, and, further, that the name given to it was an arbitrary one coined for the article and not expressive of the nature or quality thereof, except that silicon is one of it’s principal chemical elements, and he suggested that the word electro was probably designed to express the rapidity with which the polish was attained by its use.

It thus conclusively appears that a preparation made from, infusorial earth for commercial purposes was first ‘introduced by the_ plaintiffs’ predecessors and called electro-silicon; that these words were adopted as a trade-mark and a declaration thereof filed in the office of the Secretary of State of California and in the patent office of the United States at Washington; that for many years it was sold and became valuable for the purpose for which it was designed; that it was known as electro-silicon,-and also as silicon only; that the words electro-silicon were coined for the purpose of creating and establishing a trade-mark; that they are not- descriptive of the article although it ■ contains some silicon; that silicon is not, and from its nature cannot be, a commercial article becáusé it exists in such minute quantities, and is, as we have seen, an elementary body closely allied to carbon ■ and existing as a dark-brown powder or steel-gray mass, according to circumstances, and is never found in nature in an uncombined state, but only exists as a component part of compounds, resembling it in no respects, from which it has been separated so as to exist by itself only in a very small quantity and to furnish only specimens for cabinets. The question presented upon this state of facts is whether the plaintiff has acquired any right of property in the trade-mark mentio led, namely, electro-silicon.

There are a great many cases illustrative of the rules of law governing the rights acquired by trade-marks, and it may be said that in some respects they are conflicting ; but the ultimate object of the courts has been, in all of them, not only to protect and encourage honest competition, as a matter of public policy, but to condemn anything like dishonest traffic, or fraudulent or unjust attempts to invade existing rights. In the case of Messerole v. Tynberg (decided in the Court o£ Common Pleas in 1868, and reported in 4 Abb. [N. S.], 410) the question was whether the plaintiff’s trade-trade, which consisted of the word “ Bismarck,” was one which could be used by others, though it was a popular term and was in generaL use. In that case the subject was examined at some length, and it was held that whilst the word used might not be the subject of special right or property, it might become so when the application of it .identified a particular article. The case of McAndrew v. Bassett (10 Jur. [N. S.], 550), was cited in that case, in which Lord Westbuky said that “property in the word for all purposes cannot exist, but property in that word as applied by way of stamp upon a stick of licorice, does exist the moment the licorice once gets into the market so stamped; and obtains acceptance and reputation in the market, whereby the stamp gets currency as an indication- of superior quality, or of some other circumstance that render the article so stamped acceptable to the public.”

And in the case of Matsell v. Flanagan (2 Abb. [N. S.], 459), it was held .that a court of equity would protect a person in the use of a trade-mark, e. g., the name of a newspaper, although the name adopted was one that belonged to the language of the country, and might be employed in any way or for any purpose which would not defraud individuals or deceive the public. But the case of Hier v. Abrahams (82 N. Y., 519) is regard as conclusive upon the right of the plaintiff herein toan injunction. In that case the action. was brought to restrain the defendants from infringing upon the plaintiff’s alleged right to the use of the word “ pride ” as a trade-mark, and the court declared that there were trade-marks of two kinds — pictures or symbols, or a peculiar form and fashion of label, or simply of a word or words, which in whatever form printed or represented, continued' to be the distinguishing mark of the manufacturer who has appropriated it or them, and the name by which Ins products were known and dealt in, and that this distinction was recognized in the statutes for the protection of trade-marks as well as in the cases. It was said that where the trademark consisted of a picture or symbol, or in any peculiarity in the appearance of the label, the imitation must be such as to amount to a false representation, liable to deceive the public and enable the imitator to pass off his. goods as those of the person whose trademark was imitated. But where the trade-mark consisted of a word, it might be used by the manufacturer who has appropriated it, in any style of print, or on any form of label, and its use by another in any form was unlawful; .that the goods became known by the name or word by which they had been designated, and not merely by the manner or fashion in which the word is written or printed, or the accessories surrounding it, and the unlawful use of the name or word in any form might be restrained. The learned judge in delivering the opinion refers to the several cases in which the right of trade mark was preserved where it consisted of a word, and declared that it was not necessary to the preservation of the plaintiff’s rights by injunction that an actual intent to defraud should be established ; that the violation off their rights in the conversion of the trade-mark in legal contemplation was a fraud, and if the defendants, with a knowledge of those rights invaded them and caused damage, that would justify an intendment, if one were necessary, .that they did so with intent to defraud.

The learned justice in the court below denied the motion to continue the injunction upon the authority of the case of Morgan Sons v. Troxell (11 Abb. N. C., 86); but the question discussed herein was not in issue in that case. The gravamen of the plaintiff’s complaint there was a simulation of the form of package and the color of the labels used in connection with the article, and the court .held, substantially upon an inspection of the different packages, that there was such difference in them that the plaintiff’s charge could not he sustained. The plaintiff in this case does not defend upon the charge of simulation, but upon the right of property acquired in words designating the article sold and which were adopted as a trade-mark, and therefore the element of intent to defraud does not necessarily enter into the consideration of the case. It might be, under various authorities, that if the words used were merely descriptive of the article sold, the plaintiff cculd not successfully assert and maintain an exclusive right to use them, such for example as “ Dr. Johnson’s Yellow Liniment” (Singleton v. Bolton, 3 Douglas, 293), “ Thompsonian Medicines ” (Thompson v. Winchester, 19 Pick., 214), Schiedam Schnapps ” (Wolfe v. Goulard, 18 How. Pr., 64), “ Dessicated Codfish” (Town v. Stetson, 3 Daly, 53), “Julienne Soup” (Godillot v. Harris, 81 N. Y., 263), where the right asserted was not maintained because the names were riot new and distinctive, but were old and appropriate of a certain class of goods, or had been previously sold by other dealers, the names being generic and therefore descriptive. The plaintiff’s claim might be disregarded also if the designation merely described the material or composition of the article sold, such as “ Paraffine oil ” (Young v. Macrae, 9 Jur. [N. S.], 322), or “Ferro-Phosphorated Elixir of Calisaya Bark ” (Caswell v. Davis, 58 N. Y., 223), or if the trademark merely indicated the place of manufacture, as for example, “Lackawanna Coal” (Canal Co. v. Clark, 13 Wall., 311), or “Glendon Iron” (Glendon Iron Co. v. Uhler, 75 Penn. St., 467), or “ Durham Tobacco ” (Blackwell v. Wright) 73 Sup. Ct., North Car., 310).

' But as we have seen, it conclusively appears that neither the words in combination nor singly employed, describe the article •which they are intended to designate. It is a substance for polishing composed of infusorial earth, the proper description of which is not silicon, which exists in small quantities and is not an article of commerce. The words, therefore, are arbitrary and coined for the purpose of distinguishing an artiéle which the plaintiff’s predecessor first introduced into the commerce of the nation of which it has become a part.

In conclusion it may be said, as suggested by the'counsel for the •appellant, with great propriety, that silicon or electro-silicon is not, as already stated, descriptive of the plaintiff’s article. It is not a descriptive name of' a class of polishing powder, or the appropriate descriptive name of the material of which it is composed, or the place of its manufacture or production, or of the nature of the thing itself, or of the quality of the thing' itself, or of the mode of its use, or of the mode of its construction, but is new, arbitrary and distinctive; and under the authorities referred to it is quite clear, therefore, that the plaintiff is entitled to the exclusive use of the trade-mark for the purpose designated, having acquired by its use a property in it.

For these reasons the order appealed from should be reversed, and the motion granted, with ten. dollars costs of the appeal besides disbursements, and ten dollars costs of the motion below.

Davis, P. J.:

My brother Brady has presented his views of this case with such admirable force and clearness, and pointed out the distinctions between the question in this case and those upon the authority of which the motion was disposed of in the court below, that I concur with his conclusions without hesitation, although on the argument I was of the impression that the authorities cited by the respondent, would require an affirmance of the order denying the injunction. ■ I think the injunction should be granted.

Present — Davis, P. J., and Brady J.

Order reversed, and motion granted, with ten dollars costs and disbursements, and ten dollars costs of motion below.


author: BRADY, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK; Respondents, v. HENRY BOAS, Appellant.

      Election — refusal of am inspector to receive a vote — Ms act must be shown to ha/oe been willful to render it a felony — 1872, chap. 675, sec. 67.
    At an election, field in the city of New York in November, 1881, one Gerdes, who was duly qualified and lawfully entitled to vote thereat, tendered his vote, but the same was by the board of inspectors of election, of which the defendant was a member, refused upon the ground that some person had already voted upon his name. The inspectors, after having informed him of that fact, told him to come back in an hour and that they would send to head-quarters for information. Upon his return they told him that they had received an answer and declined to receive his vote. It appeared that they had sent to the chief of the bureau of elections, and that he suggested in the presence of Gerdes that the best way to settle the matter would be by an application for a mandamus.

    Upon the trial of the defendant, one of the inspectors, upon an indictment based upon section 67 of chapter 675 of 1872, making it a felony for any inspector of election to “willfully exclude any vote duly tendered, knowing that the person offering the same is lawfully entitled to vote at such election: ”

      Held,, that in order to justify a conviction it must be shown that the action of the defendant was willful, that is, that if not malice at least a decided intention, designedly and purposely to exclude the vote, must be proved.'
    Appeal from a judgment and conviction, entered upon the trial of the defendant in the Court of General Sessions of the Peace, in and for the city and county of New York, for a violation of section 67 of the election law. (1872, chap. 675.)

      William F. Kinizing and John E. Brodshy, for the appellant.

      John MoKeon, for the respondents.
   BRADY, J.:

The defendant was indicted for a violation of the election and registry law of the city and county of New York, passed May 14, 1872, and its amendments, in having willfully excluded the vote of John F. Gerdes at the November election of 1881, knowing that he was legally entitled to vote at such election. He demanded a separate trial and was tried and convicted at the November sessions of 1882, and sentenced to one year’s imprisonment in the state prison.

The' indictment charged that Gerdes was entitled to vote at the election named, and that the appellant, well knowing that he was lawfully entitled to .vote aqd a duly qualified voter at such election, did then and there feloniously and willfully exclude the vote of Gerdes so tendered, against the form of the statute in such case made and provided. The testimony in the case abundantly shows the performance of all the duties on the part of Gerdes, the voter, which required from the inspectors the reception of his ballot. But it appears that some person had voted in his name prior to his presentation of his vote, and it was for that reason that the defendant with the other inspectors, declined to receive his vote.

It appears also that 'he made three applications to have his ballot received; that upon his first application he was told by the inspectors after having been informed of the incident already mentioned7 viz., that some person had voted in his name, that he might call back in an hour and that they would send to head-quarters for information; that he went back in an hour or so and asked whether they had received any answer and they replied in the affirmative.

For the defense it was shown that they did send to John J. O’Brien, who was the chief of the bureau of elections, in reference to the vote of Mr. Gerdes and asked his advice, and that he suggested that the best way to settle the matter was by an application by Mr. Gerdes for a mandamus; that there was plenty of time and lawyers present to procure it. There is no doubt upon the evidence that the suggestion was made in the presence and .hearing of Mr. Gerdes, for a Mr. Hall, a witness for the prosecution, stated that he heard Mr. O’Brien say something about getting a mandamus and that Gerdes was present.

There is no doubt that the defendant, as one of the inspectors, committed a grave error in refusing to accept the vote of Gerdes, and that it resulted in depriving the voter of the highest privilege he can exercise under our forms of government.' But the statute requires that the exclusion shall be willful and to be willful there must exist, if not malice, a decided intention designedly and purposely to exclude the vote. To do an act willfully is to do it. willingly, by design — “on purpose,” "Worcester’s Dictionary. Such was not this case. The inspectors assigned the reason. It was not sufficient in law, it is true, but they were evidently impressed and sought advice from the chief of the bureau of elections, ydio suggested what he considered to be the proper mode of disposing of the controversy. He was in error, it is true,' but being persons uneducated in law and perhaps not sufficiently advised- of their duties as to understand them perfectly, they . placed reliance upon the advice thus given and by a person connected with the bureau of elections. This deprives the case of the essential element, under the statute, of malice or deliberate design and. intent, and renders it necessary to reverse the judgment pronounced against the appellant.

The learned recorder charged the jury that if they came to the conclusion that Mr. Gerdes was a legal voter and had the legal right to vote, and that the defendant willfully excluded his vote, knowing .at the time that he was duly and legally authorized to vote at that election, it was a felonious act on his part and within the meaning of that term, and that he would be guilty of the offense charged in the indictment. This was excepted to and the exception seems to have been well taken, because the proposition declared is that if the defendant knew that the voter was legally authorized to vote and his vote was excluded, it was willfully done. This is not justified by the evidence in the case.

The learned recorder also charged the jury that if a majority of the board, acting as a board, the defendant being one of the majority, willfully and knowingly, all being actuated with the same common intent and motive, feloniously to exclude the vote of Gerdes, the act of one would be the act of all, or the act of the majority incurred in excluding- the vote, and- that they, that is, the persons composing the majority of the board, would be jointly and severally liable and should be convicted. This was stating the law of the 'case accurately, because it presented the necessary elements to justify a conviction, namely, that the defendant should be actuated by a common intent and motive feloniously to exclude the vote of Gerdes. If the intention feloniously existed, then the vote would be willfully excluded. If the motive was a felonious one, then the vote would be willfully excluded, and the appellant would be within the provisions of the statutes and liable to conviction and punishment.

The proposition which runs through the charge seems to be, that if the vote was excluded, the defendant knowing that Gerdes was entitled to vote, he having the necessary qualifications and the right .to do so, it was a willful act to exclude the vote, and one, therefore, which. came within the provisions of the statute. This is not the law of this case, although the general proposition is correct, because -it is evident that the exclusion of the vote by the appellant rested upon the proposition that some person had voted in his name, and that the inspectors thought they had no power to receive another vote, such vote having been received, although erroneously. The suggestion emanating from the inspectors to Mr. Gerdes that he should procure a mcmdamus seems to rest upon no other proposition than that they should be thus protected in doing what they considered would be an erroneous exercise of their duty, viz., the receipt of tbe vote when one bad already been given in tbe name of tbe voter presenting bis ballot.

If tbe construction of the statute be that tbe mere presentation of a vote, by a person who is known to be qualified as a voter, is sufficient, under circumstances such as presented themselves in this case, to justify tbe conviction as an act willfully done, then there must be a departure from rules which govern cases of a kindred character, and which seem to have been well settled by the adjudged cases. For example, in the case of Jenkins v. Waldron (11 Johns., 114) it was held that an action on the case would not lie against inspectors of an election for refusing the vote of a person legally qualified, with out proving malice, express or implied. The court said in that case:

“ It is not alleged or proved that the inspectors fraudMlently or maliciously refused to receive Waldron’s vote; and this we consider to be absolutely necessary to the maintenance of an action against the inspectors of an election.”

And in Bishop on Statutory - Crimes (§ 806) it is stated as a proposition in reference to the persons intrusted by law to pass upon the qualification of voters, that they are not answerable to an indictment when what they do is done through mistake, either of law or fact, being honestly done.

It must be further said that the section under which the defendant was indicted makes the exclusion of the vote a felony, and the general rule of law in regard to a felony is that there must be an intent to do wrong, and the intent must be proved beyond reasonable doubt. It is true that the inspectors are not invested with any discretion as to the rejection or acceptance of a vote, when the person offering it has the necessary qualifications authorizing him to express it; but the language of the statute is willful.” It is not that if they reject the vote of a person duly qualified they may be convicted, but they must do it willfully, and that means with knowledge aforethought, and with a wicked design. If this be not so then the word willful has no force in the statute, and might just as well be éxpunged.

For these reasons it is thought, as already suggested, that the judgment must be reversed, and a new trial ordered, upon which the people may be able to show, from facts and circumstances, the existence of a deliberate intent or design to do wrong.

It is the determination, of this court, and must be of every tribunal in the State, to preserve unconditionally and absolutely the right of a qualified voter to exercise his franchise, and to punish, whenever the facts justify it within the provisions of the statute, any departure from the strict duty of the inspectors, who in reference to the vote are the depositaries of a great public trust, and this suggests, what has frequently been stated - both in and out of the courts of justice, that inspectors of election should be educated and intelligent men, thoroughly instructed in the duties that they are to perform, so that when the voter presents' himself they shall understand precisely the duties incumbent upon them, and thus preserve the absolute right of the voter, without interference and without impediment to express his vote, if he possesses the qualifications of the statute and is willing to take the oath required by law. It may be troublesome to make selections of such persons, but the importance of doing it results from the character of the duties to be performed as illustrated by this case, in which it is quite clear that if the inspectors haa thoroughly understood their duties the vote of Gerdes would not have been excluded.

Judgment reversed, and new trial ordered.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, new trial ordered.