text:
    Edmund C. Whitney et al., App’lts, v. Joseph Davis et al. Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1895.)

    Attachment—Action in aid of.

    An action in aid of an attachment, issued in another action, cannot he maintained until the defendant in the attachment action is in default.
    Appeal from an order, denying plaintiff’s motion for a new trial, on the ground of surprise and newly discovered evidence.
    The opinion of Mr. Justice Haight at special term is as follows:
    The evidence in this case shows that the action was brought in aid of an attachment issued in another action, and that the defendants were not in default in that action when this action was commenced. The same question is presented in the case of First Nat. Bank of Salem v. Davis, in which case I have reached the conclusion that the action is not maintainable until such default. See my opinion filed in that case. If the conclusion I have reached in that case is sound, it follows that this action must fail, for the reason that it was prematurely brought. 1 think, therefore, that the motion must be denied. The order to be entered, however, should provide that the motion was disposed of on this ground, and without a consideration of the merits; so that, in case it should be held that my views are unsound upon this question, the case may be again remitted to the special term for a determination of the motion upon the merits. The motion for a new trial upon the ground of newly-discovered evidence is denied, with $10 costs, for the reason that the action appears to have been prematurely br.ought, and without a consideration of the motion upon the merits.

      Norris Morey, for app’lt; Anshy Wilcox, for resp’ts.
   Ho opinion. Order affirmed, with $10 costs and disbursements, on opinion of Haight, J., at special term.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Jay D. Bowen, as Guardian, etc., Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Negligence—Railroad crossing.
    The care ordinarily essential to reasonable precaution, which requires the traveler at a crossing to look both ways before proceeding to cross the track, is not necessarily applicable where there is no reasonable ground to apprqkend danger from detached cars, which are following in the rear of a train that has just passed.
    3. Evidence—Opinion.
    In an action for personal injuries, it is competent to prove that certain conditions of physical impairment are the consequences which may be attributable to the injury, and the fact that such conditions have been the result, relieves the medical opinion from any imputation that it was merely speculative.
    Appeal from a judgment, entered on a verdict for plaintiff, and from an order denying a motion for a new trial, made on a ease and exceptions.

      Charles A. Poóley, for app’lt; S. E. Eilldns, for resp’t.
   Bradley, J.

There is substantially no conflict in the evidence of. the circumstances under which the plaintiff’s injury was occasioned. He was in the highway, going north, and as he came to the track of the Rome, Watertown & Ogdensburg Railroad, a single-track road, which crossed the highway at right angles, he saw a freight train approaching from the east, and waited for it to pass; and when what he supposed was the rear car had passed, he stepped onto the track, and was struck by a detached car, which was following at a short distance in the rear of those connected with the engine. This car had been detached while the cars were in motion, so that by its momentum it might pass into &. switch on the north side of the track, and 110J feet west from the center of the highway. The speed of the train at the time the car was detached by pulling out the pin connecting it with the car ahead of it was variously estimated as at the rate of from four to fifteen miles per hour, and the distance between the detached car and the rear one connected with the engine, as represented by the evidence, was from ten to sixty feet. The alleged negligence of the defendant is in the fact that the running switch was made across the highway. This crossing is near the depot of the station known as Millers. It is not a populous village, and therefore the method of moving a detached car across this highway into the switch may not necessarily be negligence per se, as it has been held to be in making a running switch at the intersection of a railroad and a public street in such a village. Brown v. Railroad ■Co., 32 N. Y. 597. The defendant gave evidence to prove that the manner it was done at the time in question was not what is termed a “running” or “flying” switch, because the train was stopped some distance east of the highway for the purpose of having the movement of the detached car slower than it otherwise would be at the crossing, and (as the defendant’s witness terms it) thus “dropping” it into the switch. But the question of the negligence of the defendant was properly .submitted to the jury. There was no one at the crossing, nor signal in any manner given, to warn persons in the highway that a car detached from the train was following it. The bralceman upon the car was upon the rear end of it, and so situated that lie did not see the plaintiff as he proceeded to go upon the track. These circumstances permitted the imputation of want of due care on the part of the defendant. It would more palpably have been negligence if the occurrence had been in the night time. Railroad Co. v. Converse, 139 U. S. 469. But it was at midday, and the plaintiff would have seen the approaching car if he had looked to the east. He did not do so. This fact gives much force to the charge of his contributory negligence, and must defeat his recovery, unless the circumstances were such as to permit the conclusion that such omission on his part was excused. The plaintiff was not aware of this method of running cars into the switch at that station. His attention was -diverted by salutation from the fireman in the cab of the engine, which salutation he returned, and he continued looking in the -direction the engine was moving until he observed the passage of the rear car of those attached to the engine-; then, proceeding to cross the track, he was struck by the detached car. The plaintiff had reason to suppose that the end of the train had passed when he attempted to cross over, and it cannot, as a matter of law, be ■assumed that he had reason to apprehend that a disconnected car may have been following those drawn by the engine, or that .another train would so soon succeed that which had passed the place where he stood. The care ordinarily essential to reasonable precaution which requires the traveler at a crossing to look both ways before proceeding to cross a railroad track was not, in view of the circumstances, necessarily applicable to the present case, for the reason that there was no reasonable ground to apprehend danger when he saw the train pass, and stepped onto the track in the rear of it to go forward. French v. Railroad Co., 116 Mass. 537; Brown v. Railroad Co., 32 N. Y. 597, 601; Duame v. Railway Co., 72 Wis. 523; 40 N. W. 394. In delivering the opinion in Brown v. Railroad Co., Judge Davis made the remark, somewhat applicable to the situation in the present case, that, “ it is ■asking too much to say that it was negligence as matter of law not to have anticipated that detached cars were following in the Tear of the train that had passed.” The fact that the plaintiff may have seen the approaching car if his attention had not been attracted to the fireman by their exchange of salutations does not aid the defense. This continued diversion of his attention until he proceeded to cross the track did not necessarily evince a want -of due care in view of the fact that it was not within his reasonable apprehension that a disconnected car would follow the passing train. In Woodward v. Railroad Co., 106 N. Y. 369 ; 11 St. Rep. 169, the plaintiff’s intestate was familiar with the fact that the company was in the habit of shunting or kicking cars down the switch over the crossing on which he received his fatal injury, and it was held that his failure to avoid the accident was attributable to his want of due care. That case has not, necessarily, any application to the present one upon the question of contributory negligence, which question, we think, in this case was one of fact, and properly submitted to the jury.

A physician and surgeon, called as a witness for the plaintiff, having testified that he attended the plaintiff, dressed his wounds, etc., shortly after the injury in October, 1893, made an examination of him in April following, and had recently, in September, 1894, examined him, proceeded to state the plaintiff’s condition, and gave evidence tending to prove that the impaired physical condition and deformity of some of the members of his body were attributable to the injury in question. The defendant’s counsel took exception to the reception of this' evidence as speculative. The plaintiff, at the time of the accident, was séventeen years of age, in vigorous health, and good physical condition. His injury was apparently severe. It was followed with certain conditions of physical impairment. It was competent to prove that they are consequences which may be attributable to the injury, and, in view of the fact that such conditions have been the result, relieves the medical opinion from any imputation that it was speculative. There was no error in the reception of the evidence. Griswold v. Railroad Co., 44 Hun, 236; 7 St. Rep. 804; Id., 115 N. Y. 61; 23 St. Rep. 729.

The verdict for $8,000 was quite large,' but, in view of the evidence relating to the injury and its consequences, it cannot be said to be so large as to justify the conclusion that the jury were influenced by prejudice or passion in reaching the result. The view taken is that the verdict is supported by the evidence, and that there was no error in the rulings at the trial.

The judgment and order should be affirmed.

All concur.


author: Bradley, J.—On

text:
    William Curry, Resp’t, v. Rochester Railway Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Tbial—Charge.
    Where the charge following a request does not, nor does the charge as already made, substantially cover the proposition, and the evidence permits the jury to find all the facts included in the proposition which the court is so requested to charge, the refusal to so charge is error.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Charles J. Bissell, for app’lt; Chamberlain & Page, for resp’t.
   Bradley, J.—On

July 25, 1893, the plaintiff was struck and injured by an electric street car of the defendant going westerly on West avenue in. the city of Rochester. There were two tracks of the company in that street. The outer rails of the tracks were 12.4 feet from the curb. On the northerly track were run the westerly-bound cars, and on the other the cars ran easterly. The plaintiff was proceeding to cross the street from the north side when he received his injury. This took place about 8 o’clock p. m. The attendant circumstances under which it occurred were the subject of some conflict in the evidence. On the part of the plaintiff there is evidence tending to prove that the car by which the plaintiff was struck was preceded by another, going west, but a few feet from it, and that when he stepped onto the track in the rear of the first one he was struck by the other. There is also evidence to the effect that he stopped 'upon the track, and stood there, looking westerly, when the accident occurred ; and there is also evidence tending to prove, and permitting the inference, that no car going either way passed there from the time the plaintiff left the sidewalk until the arrival of the car by which he was injured. The court, having charged the jury, was requested by the defendant’s counsel to further charge them that, if they found that after the plaintiff left the sidewalk, and started to cross the street, only one car passed “ to the west, and that was the car that injured him, and they found that he stopped on the track in front of that car without looking; that, had he looked, he could have se.m it coining, and he was, by- reason of his omission to look, knocked down and injured,—that that conduct was contributory negligence, as matter of law, which bars a recovery.” In response to the request the court said: “I charge you, if by the exercise of reasonable care and caution he could have discovered the car, then he was negligent. If by the exercise of reasonable care and caution he could not have seen the car, then he was not guilty of contributory negligence.” Thereupon the defendant’s counsel excepted to the refusal to charge as requested and to the modification. The charge following the request did not substantially cover the proposition, nor did the charge as then already made do so. There was evidence which permitted the jury to find all the facts included in the proposition which the court was so requested to charge; and, if they had so found the facts, the conclusion that the defendant was not entitled to recover would necessarily follow. The refusal to so charge was error. Thompson v. Railviay Co., 145 N. Y. 196; 64 St. Rep. 591.

The judgment and order should be reversed, and a new trial granted; costs to abide the event.

Lewis, J., concurs. Ward, J., dissents.


author: Parker, J.

text:
    Henry Jacquin, Resp’t, v. Pauline Boutard et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Principal and agent—Compensation.
    An agent, appointed to sell goods on commission, which are customarily paid for after delivery, is entitled to his commissions on-goods sold before, but delivered after, the expiration of the contract of employment.
    2. Same—Refusal to accept services.
    In such case, the principal -cannot defeat the right of the agent to commissions, by refusing to accept orders for sale of goods, procured by the agent before the expiration of his agency.

      3. Same—Contract—Interpretation.
    The employing of an agent to sell goods on commissions and the furnishing him .with price lists and samples, until the principal desires to terminate the agency, though he has not in terms agreed to send them to the agent, tend to show an intention that samples and price lists should be furnished by the principal, and such understanding will be enforced.
    4. Same.
    The practical construction, put upon a contract by the parties to it, is sometimes almost conclusive as to its meaning.
    5. Same.
    Though courts hesitate to imply promises in formal contracts, it will be done where otherwise the manifest intention of the parties will be defeated.
    Appeal from a j udgment, entered on a verdict in favor of plaintiff.

      George A. Strong, for app’lts ; Charles E. Hughes, for resp’t.
   Parker, J.

The contract created by the correspondence of the parties required the plaintiff to furnish at his own expense a suitable office in the city of New York, bearing defendants’name, with proper storage space for ordinary office purposes, and also for the display of samples of defendants’ fabrics, aud for the convenience of customers and salesmen ; to take charge of all orders for delivery in the United States; to attend to all matters connected with the passage of merchandise through the customhouse, and its shipment and delivery to purchasers; to enforce conditions of sale ; to advise defendants’ bankers as to terms ; to control salesmen, whether appointed by plaintiff or defendants ; to supervise credits, plaintiff having the right to reject orders by parties of doubtful responsibility, and underwriting collection to the extent of his commissions; to facilitate by all means in plaintiff’s power the sale of defendants’goods; and to devote to defendants’ American business the same care and watchfulness which defendants themselves would give to it, were they established at New York. It provided that defendants should place in plaintiff’s charge all orders for goods payable in currency in the United States, and to pay him for his services as agent a commission on all collections in currency on orders placed by salesmen employed directly by defendants two and one-half per cent., and in case of orders placed by salesmen employed by plaintiff five per cent., with a reduction of one-half per cent, in each case if the yearly sales amounted to more than $150,000. Upon the strength of this contract, as modified by subsequent correspondence between the parties, the plaintiff employed on his own account a salesman, to whom he paid $100 a month, and a fixed commission in addition on goods sold by him. The parties entered upon the performance of their respective obligations shortly after an agreement had been reached, and proceeded, without any misunderstanding or questioning, until July 4, 1892, when the defendants, in accordance with the stipulation in the contract, gave notice of its termination at the end of six months. Having given this notice, they refused to send samples to the plaintiff, which were necessary in order to enable the salesman employed by him to make sales of defendants’ goods. They also withdrew the salesman from the United States who had heretofore represented them, and sent in his place another salesman, whom "they instructed not to sell any goods payable in currency in the United States, but instead to make all sales payable in francs. By this means they sought to terminate, so far as they were concerned, all obligations on their part under this contract, while the plaintiff necessarily remained bound under it to provide an office and a storage place for them for a further period of six months. And if their contention as to the construction which should be put upon this contract be well founded, then the contract under which plaintiff was bound to and did incur expense in a substantial amount did not place upon the defendants a corresponding obligation to afford the plaintiff an opportunity to earn the commissions by which this expense could be borne, and his own services compensated for. The defendants’ position, as stated in the brief of their counsel, is that “ defendants not only did not agree to sell any specific amount in currency, but they did not bind themselves to sell at all through plaintiff. The contract is simply that they will deliver through him all goods sold in currency in the United States. They remain, on the face of the contract, free, and they clearly intended to remain flee, to sell in currency or in francs, or not to sell at all, as they might thereafter find to their advantage.” It may be observed, in the first place, that while the contract only provides for a commission to be paid to the plaintiff upon all goods sold in currency in the United States, there is no suggestion in it, or in any of the correspondence between these parties, that the defendants reserved the right or intended to sell goods in the United States in francs. Uor does it appear that defendants did sell any goods in francs, from the time of the making of the contract down to July, 1892, when they notified plaintiff that they elected to terminate the contract on the 1st day of January, 1893. Then, for the first time, defendants suggested the position which they now. insist upon,— that, having agreed only to pay plaintiff for his services and expenses, and commissions upon goods sold in currency, they had the right to deprive him of all reimbursements and compensation by directing their salesman to sell in francs, and refusing him samples, so that he, and the salesman employed by him, could not sell at all. The language of the contract, and the correspondence between the parties subsequent thereto, and their conduct thereunder, satisfies us that the parties did not so understand it at the time of the making of the contract. That it was a mere afterthought of the defendants, born of a desire to relieve themselves from the payment of commissions which performance of the contract for the ensuing six months, as theretofore would entail. The questions involved, therefore, lead to the ultimate determination whether or not this contract was so drawn as to continue in full force as to the plaintiff without any corresponding obligation or duty on the part of the defendants.

The first question which suggests itself is whether the plaintiff would be entitled to commissions upon goods sold during the life of the contract, but deliverable afterwards ; for it is the fact that the character of the business done under 'the contract was such that a large part of the sales made in the fall of 1892, would in the ordinary course of business, not have been delivered until after January 1, 1893. While this question relates to the measure of damages, it is, nevertheless, a substantial one; for, unless the plaintiff is entitled to recover compensation for goods sold prior, but delivered subsequently, to the expiration of the contract, the judgment must be reversed, because of the refusal of the court to charge a request upon that subject, preferred by the counsel for the defendants.

The compensation to be paid to the plaintiff for keeping an office, putting defendants’ name over the door, supervising credits, underwriting his commissions, directing the salesmen and superintending delivery, was a commission on the net sums paid in currency.' It is evident that under the contract the plaintiff’s commissions were intended to be calculated according to the year’s business, and payment thereafter to be made when the net suni should be paid in currency. If this be not the proper construction, then it is apparent that, no matter how long the contract may have continued, plaintiff would have had six months’ work without pay, during which time he would necessarily be under a substantial expense, and, in addition, be liable over to the defendants to the extent of his commissions upon any orders taken for which payment should not be made by the purchasers. For it will be remembered that it was the duty of the plaintiff, under the contract, to supervise credits, and to reject orders if not satisfied with the purchasers’ responsibility; the effect of mistake upon him being not only the loss of commissions, but a liability to the defendants, in addition, in a sum equal to his commissions on such orders. As this duty of supervision continued under the contract until its termination, it is clear t hat the liability which guaranteed its faithful performance likewise remained, and this liability, as we have observed, was in each case equivalent to the stipulated commissions. ■ It would seem to follow that, if plaintiff had taken any orders, or defendants had sold goods deliverable in the United States during that period, the plaintiff would have been entitled to compensation. It may be observed, in passing, that this conclusion would sustain the decision of the trial court in holding that the defendants broke the contract, for their representative Pike, while endeavoring to execute their commands that he sell only in francs, failed as to two customers, who refused to take the goods except on a delivery in the United States. These deliveries were not made through plaintiff, as the defendants were bound to do, even according to their own construction of the contract, and knowledge of such deliveries was kept from the plaintiff. But we shall not dwell upon this, for, unless the defendants were bound to furnish to the plaintiff samples for the use of himself and his salesman to enable them to make sales deliverable in the United States, the judgment must be reversed, because of the refusal of the court to charge certain requests preferred by the defendants.

Having reached the conclusion that the plaintiff would have been entitled to recover commissions had the defendants furnished him with the opportunity to make sales as they did previous to the notice, of termination, we shall now enquire whether plaintiff was entitled, as a matter of right under the contract, to make sales whether defendants desired him to do so or not. And in speaking of the plaintiff in that connection we include the salesman acting under his supervision. It is defendants’ contention that under the contract they had the right, at any time during the life of it, to stop plaintiff from selling goods in currency. In other words, that while the contract concededly bound plaintiff, until its termination, to keep an office, and do all the other things specified therein, including the rendition of such personal services as should be necessary, according to defendants’ letter, to facilitate by all means in your power the sale of our goods, and, in short, to devote to our American business the same care and the same watchfulness which we ourselves would give to it if we were established in Hew York,” nevertheless defendants could prevent the plaintiff from taking any orders deliverable in the United States; and this notwithstanding the entire scheme of the contract seems to have been to constitute plaintiff defendants’ agent in the United States for the sale of their goods, without any intimation therein that it was defendants’ purpose to make sales within such territory through any other channel or in any different manner. A test of this contention is furnished by the inquiry: Suppose plaintiff had taken orders upon proper terms during the period in question, notwithstanding the defendants’ efforts to deprive him of the means of doing so, would he have been entitled to insist upon the acceptance of such orders, or upon the payment of commissions, as though they had been accepted ? This inquiry has sufficient answer in Taylor v. Morgan's Sons Co., 124 N. Y. 184; 35 St. Rep. 68. In that case plaintiff was employed as a traveling salesman to sell defendants’ Sapolio in specified states. He was required to travel over his route six times a year, to handle no goods in conflict with theirs, to conduct himself and the business in a manner to their general satisfaction, for which they agreed to pay “ commissions .upon all orders accepted from bona fide purchasers.” After his discharge he brought an action to recover his commissions, and was allowed by the referee commissions upon orders from responsible parties which the defendants did not accept. In sustaining the judgment the court said :

“ We incline to-the view that it was the duty of the defendants to accept all orders presented by the plaintiff from bona fide purchasers, which were made in accordance with the provisions of the contract; and that they did not have the right, without cause, to arbitrarily refuse to accept such orders. Such a construction of the contract would require the plaintiff to travel over the territory mentioned at his own expense, six times a year, with a right on the part of the defendants to reject every order presented by him, and to thus deprive him of any commissions.”

So, under this contract, plaintiff assumed duties of considerable magnitude, for which he was to be compensated by commissions upon sales made during its lifetime, certainly defendants cannot insist upon a performance of those duties, and yet ■ arbitrarily and capriciously refuse to plaintiff an opportunity for compensation by placing orders. It seems a fair and reasonable construction of the contract, that, subject to the reasonable requirements of defendants’ business, plaintiff, in person or through his salesman, was entitled to make sales so long as the contract continued in full force. If that be sound, then surely it cannot be said that the contract did not in any way bind defendants to make part of their sales in currency; for, aside from the fact that the contract in no wise suggested that it was the purpose of the defendants during its existence to make sales in any other way or manner, they were bound to accept such orders as the plaintiff should obtain personally or through his salesman ; and to such extent, at least, they were obligated to continue the business of making sales deliverable in the United States, through plaintiff’s agency.

We now come to the question whether defendants during the period in question had the legal right, under the contract, to withhold from the plaintiff the samples and price lists as they did do, thus rendering it impossible for him to continue the business in the United States, and secure compensation for the services rendered and expenses incurred by him. We have said that they could not have refused to accept orders had plaintiff been able to obtain them on proper terms, and the inqury now is whether, under this contract, they could do indirectly what they could not do directly. The claim of the defendants is that there is no express provision of the contract requiring them to furnish samples and price lists, and that they cannot be charged with a breach of the contract except by holding that such a provision should be implied, and they deny the authority of the court to make such implication in this case. Preliminarily to a consideration of the legal question involved, we should ascertain, if possible, from the contract, considered in the light of the facts and circumstances surrounding its making, and the subsequent acts of practical construction put upon it by the parties, whether it was their intention that the defendants should furnish to the plaintiff samples and price lists for the purpose of carrying on the business which occasioned the making of the contract. It is undisputed that both parties knew that it was an utter impossibility for the plaintiff to accomplish the work which both parties had in view without he was furnished from time to time with samples and price lists of the goods which it was the defendants’ aim to sell in the United States ; and it is difficult to conceive that either one of the parties could have purposely intended keeping out of the contract such a provision. Undoubtedly, the defendants then intended to furnish them, and, of course, the plaintiff could not conceive that the defendants could have any purpose in withholding them at any time. While the express provision on this subject was not contained in the informal correspondence which constitutes the contract, still a consideration of the language employed, and the conduct of the parties, indicates to us that it was their intent, at the time of its making, to bind the defendants to furnish plaintiff with samples and price lists, so that “ he might facilitate their sales, and have full power to successfully conduct the American business.” The very fii'st letter provides that the plaintiff should preserve defendants’ collection of samples; and the circular sent to customers, as soon as the business was begun, informed them that they would find samples at plaintiff’s address. At the very beginning of the business, and on March 10, 1891, plaintiff, in writing to the defendants, said:

“We will keep you as much as possible informed of everything happening in the market, and, if necessary, will cable you when we think it worth while. I hope that the cases of Henrietta sample pieces are on the road.”

Ten days latter the defendants replied:

“ We will neglect no occasion to extend the business conducted through your intermediary. We are able to put en route all the samples which you ask, and hope they will reach you in time to-obtain orders.”

Other letters, announcing the sending of samples and patterns, with the promise of more to follow, were sent to the plaintiff; and it is conceded that, until the notice to terminate the contract was given, all the samples necessary for the conduct of the business were furnished. In a letter of April 22, 1892, the defendants, after informing the plaintiff that he was considered responsible-for the acts of Boullon, the same as those of Kennedy, continued:

“You will understand perfectly the motive which actuates us. Desiring to give you all authority for successfully conducting our American business, we cannot delegate any part of it, to whosoever it may be.”

Indeed, defendants stipulated upon the trial that, from the making of the contract down to the notice óf termination, the defendants sent to the plaintiff samples of each season’s collection, regularly, and in due course. Thus it appears from the acts of the parties that they understood it to be the duty of the defendants to furnish the plaintiff with samples and price lists. How, it has been often held that the practical construction put upon a contract by the parties to it is sometimes almost conclusive as to-its meaning, for there is no surer way to find out what parties meant than to see what they have done. Insurance Co. v. Dutcher, 95 U. S. 273; Woolsey v. Funke, 121 N. Y. 92 ; 30 St. Rep. 768; Nicoll v. Sands, 131 N. Y. 24; 42 St. Rep. 282. These authorities are not, of course, controlling in this case, for the contract contains no provision whatever on the subject now under discussion, but they serve to show the importance which the courts justly attach to the conduct of parties under a contract, and are serviceable as aids in determining whether the parties intended to agree that samples and price lists should be furnished by the defendants, although they did not express it in the contract, and that it was so understood by both of them. And thus considering the conduct of the parties under this contract, and the contract itself in the light of the fact and circumstances surrounding its making, we reach the conclusion that the parties understood that it was a part of their agreement that the defendants should furnish to the plaintiff samples and price lists, and that its failure to appear in the contract was not an intentional omission, but a mere inadvertence. The evidence is of sucha character as to support such a finding of fact, and it must be assumed in the disposition of this case that it was so found by the trial court. And this is so because, while there was a jury, both parties requested a direction of a verdict, which left the court free to decide all questions of fact. It would seem to follow that in such a situation the court should imply a promise to furnish samples and price lists. While the courts hesitate to imply promises in formal contracts, it will be done where otherwise the manifest intention of the parties will be defeated.. Refei-ence will be made to a few of the cases in which the courts have implied promises by one of the parties to the contract In New England Iron Co. v. Gilbert El. R. Co., 91 N. Y. 153, the plaintiff agreed to perform the labor and furnish the material necessary to the erection of an elevated railway, and to commence its erection at a point to be named by, and at such time as, the president should notify if that defendant’s capital was subscribed. The contract did not provide that defendant should give the notice required to set plaintiff in motion. The court held that the promise to give the notice on tlm part of the defendant should be implied. In Mansfield v. N. Y. C. & H. R. R. Co., 102 N. Y. 205, the plaintiff agreed to construct for the defendants the superstructure of an elevator upon foundations to be prepared by the defendants, the work to commence within five days after the defendants’ engineer should notify plaintiff to proceed with the work. When the notice was given, the foundations were not completed. The contract, it appears, did not contain a covenant on the part of the defendants that they would have the foundations in condition to enable the contractors to go on with their work before giving notice, but the court held that such a covenant was cleai’Iy to be implied. In the course of the opinion the court said:

“The meaning of a contract is to be gathered from a consi dez-atian of all of its provisions, and the inferences naturally derivable therefrom, as to the intent and object of the parties in making it, and the result which they intended to accomplish by its performance. It was said by Allen, J., in Booth v. Mill Co., 74 N. Y. 15, 21: ‘There is no pai’ticular formula of words or technical

phraseology necessary to the creation of an express obligation to do or forbear to do a particular thing or perform a specified act. If from the text of an agreement and the language of the parties, either in the body of the instrument or in the z'ecital or references, there is manifested a clear intention that the parties shall do certain acts, courts will infer a covenant in the case of a sealed instrument, or a promise if the instrument is unsealed, for nonperformance of which an action of covenant or assumpsit will lie.’ ”

In the recent case of Genet v. D. & H. Canal Co., 136 N. Y. 593; 50 St. Rep. 53, a question was presented under entirely different circumstances than those now before the court, but the court implied a promise that the defendant would not “willfully or negligently incapacitate itself” from taking out more than the minimum quantity of coal during the year. The argument of the court upon this subject contains the following:

“And now the defendant claims that the contract is unbroken so long as it pays the minimum royalty. It is abundantly disclosed that the plaintiff is not getting—can never get—what she would have received, what she expected to receive, what was the chief inducement to the contract, what the lessee expected to pay, and what in the ordinary course of business it would have paid, •solely because of the negligent destruction of the mine. The loss has come from a cause which both parties assumed would not occur, and against which, for that reason, the lessor took no express covenant; and it is because the lessee did not expressly covenant that it would not willfully or negligently incapacitate itself from taking out more than the minimum quantity of coal per year that it grounds its contention. There is no such express stipulation, but I think one is to be implied, and fairly and justly may be found interwoven with the terms expressed, and growing out of their scope and meaning. * * * ”

The court cited with approval, and by way of illustrating its argument, the case of McIntyre v. Belcher, 14 C. B. (N. S.) 654. The language of the court in considering the McIntyre Case so accurately describes the situation presented by this case that we quote it:

In Mclntyrés Case “the plaintiff sold out his business as a surgeon, getting in return a cash payment for his drugs and instru- ' ments of about seventeen pounds, but taking an agreement that the purchaser would account for and pay over to the plaintiff the one-fourth part of the receipts of the business for four years, if he should live so long, provided that their annual aggregate should reach three hundred pounds. The defendant, during the third year, chose to abandon the business, and the plaintiff sued. There was no express agreement that the purchaser would continue the business, or that, if he did, that its annual proceeds would reach three hundred pounds. The court held that a covenant was implied that the defendant would not willfully incapacitate himself from carrying on the business. Of course, the plaintiff took the risk, beyond the payment in cash, of the defendant’s business capacity, of his tact and skill, of his industry and ability to gather in more than the annual three hundred pounds ; but the risk he did not take was the willful or negligent abandonment by the defendant of any effort to do business at all, so that the earning of profit was rendered utterly impossible.”

Another case, more clearly analogous, may be found in Turner v. Goldsmith, (1891) 1 Q. B. 544. There defendant, a shirt manufacturer, by contract writing, agreed to employ plaintiff to serve as canvasser and traveler on conditions—First, that the agency should be terminable by either party at the end of five years by notice; second, that the plaintiff should do his utmost to obtain orders for the goods manufactured by the defendant as should from time to time be furnished or submitted by sample .or pattern; plaintiff’s compensation to consist of a commisssion upon receipts from sales. Two years thereafter defendant’s manufactory was burned down. Plaintiff brought his action for breach of contract. It was defendant’s position that he was not bound to contain a stipulation that he should furnish samples, and therefore there was no obligation on his part to do what was necessary to enable plaintiff to earn his commission. To this contention the court responded : “The answer is that the company would not be employing the plaintiff, within the meaning of the agreement, unless, they supplied him with samples to a reasonable extent.”

Plaintiff’s recovery was therefore sustained. It is our conclusion that the court should imply a promise on the part of the defendants to furnish the plaintiff with the necessary samples and price lists, and it follows that the judgment should stand.

Judgment affirmed, with costs.

Follett, J., concurs.

Yan Brunt, P. J.—As the courts have adopted the rule of supplying supposed omissions in contracts, I concur.


text:
    Manhattan Railway Company, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App'lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Railroad—Elevated—Rights in street.
    An elevated railroad has such a property right in its road and structure that the city cannot physically interfere with it, even with legislative authority, without responding for the direct damages which such interference occasions to the company.
    3. Same—Viaduct—Station.
    Chapter 62 of 1853 does not authorizes the laying of a highway across: railroad tracks so as to take ór interfere with a station lawfully constructed by the company, nor apply to the building of a viaduct across an elevated road, unless compensation therefor is made.
    3. Same—Change of grade.
    The construction of a viaduct along a street, in order to relieve the traffic on such street, is not a mere change of the grade of the street.
    Submission of a controversy, without action, on an agreed statement of facts.

      Julian T. Davies and Alexander S. Lyman, for pl’ff; Francis M. Scott, Theodore Gonnoly, and Terence Farley, for deft.
   Parker, J.

The defendant, being the owner of the bed of Eighth avenue, consented, in September, 1875, to the erection of the elevated railway, appurtenances, and stations in that avenue, of which the plaintiff is the owner. After many millions had been expended in its construction, and in the payment of damages to abutting owners for injuries occasioned to their easements of light, air, and access, the legislature, by chapter 576 of the Laws of 1887, authorized the defendant to erect and construct, over and along 155th street, “from the easterly line of St. Nicholas Place to McComb’s dam bridge, an elevated iron roadway, viaduct, or bridge.” The gradient of the viaduct, as established by the plans approved by the commissioner of public works, crossed Eighth avenue at such a heighth as to intersect with the upper portion of the plaintiff’s iron stations at that point. In order to permit the viaduct to pass over the stations, so as not to seriously impair their usefulness, or weaken the structure to the point of danger to the traveling public, extensive alterations became necessary, involving an expenditure of $9,960. Between the defendant and the plaintiff, there was a dispute as to which party should bear the expense. 0 To avoid the delay in the construction of the viaduct which a suit to determine that question would occasion, .an agreement was made which permitted the work to be done at once, leaving the question of liability for the determination of the court. In this submission of the controversy, it is agreed, on the one hand, that the plaintiff had the right to erect and maintain its stations where it did, and, on the other hand, that the viaduct was lawfully built where it was erected, under the authority of the statute already referred to.

The mere statement of the fact that a structure, such as the plaintiff’s stations, lawfully erected, and with the full consent of the defendant, was by its act damaged, would seem to establish the right of the owner to compensation. If the stations had been erected on plaintiff’s land, instead of in a public street, and the defendant had truncated it with a viaduct, there would be no question of its right to compensation for the damage done. The fact that its erection is upon and over a street of the defendant, in view of the defendant’s consent, given pursuant to legislative authority, and for the purpose of inducing the plaintiff to construct and operate an elevated railway for the convenience of the public, does not seem to present a situation different from what it would be if the stations were upon lands belonging to the plaintiff. The steps taken by the plaintiff and the defendant, pursuant to legislative authority, leading up to the construction of the railway and its appurtenances, do not indicate that it was the intention of any of the parties that the plaintiff’s right to maintain the structure ■should be of such a conditional character that the legislature might, by subsequent enactment, authorize the destruction of the whole or any part of it without just compensation. It was not laid out and constructed, like the ordinary railroad, by a corporation created under the general railroad act, with little if any of its line definitely located, but with the machinery provided whereby it might acquire private property, and the right to cross public streets and the tracks of other railroads. Instead, its promoters presented a plan which was intended to prevent interference to any great extent with the public use of the streets, by constructing the railroad bed so far above the streets as to make it impossible for the structure to interfere with traffic on the avenue. 'The. general scheme proved acceptable to the defendant and the legislature, the latter body providing the necessary safeguards for the construction of elevated railways, of which the plaintiff’s is one.

Under what is known as the “Rapid-Transit Act” (chapter 606, Laws 1875), commissioners were appointed, who subsequently-organized the plaintiff, according to the terms of the statute authorizing their appointment. They prepared the articles of association and specified the routes, and framed a general specification relating to the construction of supports, turnouts, stations, platforms, etc., under which all of the stations of the plaintiff, including the one in question, were located and constructed. With reference to that plan of construction, and under the guidance and direction of the commissioners, the plaintiff proceeded to, and did, expend large sums of money, resulting in the completion of the property in accord with the methods prescribed by legislative enactment, and under the direction of officials representing the defendant. Certainly, the • rights so acquired, and the property thus created, cannot be defeated and destroyed for the benefit of the defendant without compensation. People v. O'Brien, 111 N. Y. 1; 19 St. Rep. 173. And it would seem to be equally true of a part as of the whole. The character of plaintiff’s right, or in the street whereby it lawfully maintained all its structures of Eighth avenue, including the stations at 155th street, has been repeatedly, in one form and another, the subject of judicial consideration. In People v. Commissioners of Taxes, 82 N. Y. 462,. the question was whether the relator’s elevated railroad structure, being located on the land of the city, was taxable as real estate. The court held that it was. In White v. Man. Railroad Co., 139 N. Y. 19; 54 St Rep. 409, the court had under consideration the legal effect of a consent, not under seal, by an abutting owner, the fee being in the municipality, to the erection of a'n elevated railroad therein, and in front of his property. It was held'to operate as an abandonment of the easement to the railroad, and in the course of the opinion the court said:

The railroad company having procured the consent of the authorities of the city to the construction of the railroad in the street or square in question, upon the terms ■ agreed upon, such company obtained an interest in, and, to a certain extent, a title to, the street for the purpose of the construction and operation of its railroad, which was in the nature of property, and which was sufficient to enable it to treat with abutting property owners in* the character of one who had an interest in the servient estate.”

The legal effect of the consent, by the defendant, to the erection of plaintiff’s railroad was presented by a still different situation in Herzog v. N. Y. E. Railroad Co., 37 St. Rep. 567; affirmed, 76 Hun, 486; 59 St. Rep. 341. The suit was brought by Herzog, an abutting owner, for an injunction and damages, but it being made to appear that Herzog’s grantor, the city of Hew York, was the owner of the premises at, the time its consent was given to the construction of the elevated railroad, the complaint was dismissed, the court holding that, the corporation having acted upon the consent of the city, and built its road, “the right to use such property, so devoted, for the railroad, vested absolutely and irrevocably in the railroad corporation.” The argument of the court fully sustains the proposition we have asserted in this case, to wit: That the plaintiff has such a property right in the elevated railroad and structure that the city cannot physically interfere with it, even with legislative authority, without responding for the direct damages which such interference occasions to the plaintiff.

The legislature has the power, from time to time, to authorize the construction of viaducts, bridges, and other structures for the public use, which shall cross the plaintiff’s roadbed and appurtenances, but, if such crossing shall necessarily put the plaintiff to expense in the rebuilding, repairing, or strengthening of its structure, it may have compensation therefor. With the first part of the last proposition the learned corporation counsel is agreed, but the last, he insists, is in conflict with certain authorities, holding (1) that a railroad must maintain its crossings so as to meet and provide for the necessities of an increased population or traffic; and (2) that there is no liability on the part of a city arising from a change of grade.

The authorities in this state bearing upon his first position have their foundation in chapter 62 of the Laws of 1853, which authorize the laying out of highways across the track of any railroad now laid, or' which may hereafter be laid, without compensation to the corporation owning such railroad. In Railroad Co. v. Brownell, 24 N. Y. 345, this statute was before the court, and the objection that is was unconstitutional was considered and denied; the position taken being that a railroad acquires its right to construct a railroad upon or near the natural surface of the earth, subject to the dominant right of the state to cross its roadbed whenever the public necessity demands that new streets shall be opened, and the requirement that it shall make the necessary excavations and enbankments for taking the highway across the railroad is neither unlawful nor unreasonable, for the disturbance of the natural surface of the ground, making such work necessary, is the work of the railroad corporation itself. The court, however, manifested a disposition not to extend the statute, but to construe it strictly. The contemplated highway, which the suit was brought to enjoin, was laid out across the tracks of the railroad, and also across grounds acquired as sites for a station house, engine house, etc. As to the first, the court said the action of the highway authorities was lawful, but as to the second unlawful. In the course of the argument the court said that land purchased for stations “ does not fall within the policy which contemplated that tracks of the railroad might be so used. The use of the land acquired by the railroad company for its tracks was such as admitted of a concurrent use for the purposes of a highway, but it was quite otherwise with that which was obtained for the engine house and other structures.”

It may be assumed that the legislature of 1853, in enacting the statute to which we have referred, did not contemplate the passage of a viaduct over an elevated railroad, constituting a form of railway construction at that time unknow, and hence the statute should not be regarded as applicable. A still further reason for holding that it is not applicable may be found in the fact that the novelty of the elevated system led to legislation especially adapted to it, having for its purpose, not only the protection of the capital invested, but the safeguarding of the public interests as well. And it is proper to assume, in the light of that legislation, that whatever burdens the state intended the plaintiff should take, with the grant given to and accepted by it, were enumerated. Clearly, it .should not be held that, in accepting the franchise, the plaintiff impliedly agreed to alter its structures from time to time for the purpose of providing highways for the public, at or nea-r the same .grade; for an important part of the plan was to place all of the plaintiff’s structures so far above the streets as to render it impossible that the public streets, or those using them, should come in contact with the elevated railroad.

But if this position were not well taken, and it could be held that the statute of 1853 is applicable to an elevated railroad, still, under the construction of the statute given in Railroad Co. v. Brownell, supra, it would not be the duty of the plaintiff to bear the expense incurred in this case. The viaduct crossed plaintiff’s road at a point where it had lawfully constructed railroad stations. And the property interfered with, and which had to be altered .and strengthened, was the railroad stations, and it was distinctly held in that case that the statute does not refer to property acquired by a railroad for station purposes.

The contention of the defendant, that it is not liable for the -damages resulting to the plaintiff, because that which it did was merely to change the grade of 155th street, seems to us unsupported by the facts. It is undoubtedly the general rule that, because of a change of grade of a street, an abutting owner cannot recover damages unless some of his rights, in the nature of easements, which constitute property, are interferred with, such as the right of ingress and egress. Reining v. N. Y., L. & W. R. R. Co., 128 N. Y. 157; 40 St. Rep. 392. It would seem that that rule would npt be applicable to this situation, even if it were the fact that the erection of the viaduct constituted a mere change of grade, for this is not a case of indirect damage occasioned by the raising of the grade of the street. Plaintiff’s property was actually taken. It stood in the way of the viaduct, the completion of which required the taking of- some portion of it. and so it was taken. As it was a lawful structure, the owner of it was entitled to compensation for the taking.

But we find nothing in this record which supports the defendant’s assertion that this was a mere change of grade. The statute did not authorize the commissioners of public works to change the grade, but to improve and regulate the use of 155th street, “and for that purpose to erect and construct over and along said street from the easterly line of St Nicholas Place to McComb’s dam bridge, an elevated iron roadway, viaduct or bridge with the necessary abutments, arches on intersecting avenues and approaches thereto,” etc. And the fact is that the grade of the street was not changed by the.building of the viaduct or when it was built. The street remains, as before, open to the public, with its surface wholly unchanged. The viaduct constitutes an additional throughfare, built over and along 155th street, and supported by columns resting in the bed of the street. It sustains substantially the same relation to the street that the plaintiff’s railroad structure does to Eighth avenue. The facts, therefore, do not support the defendant’s contention, were it otherwise well grounded.

Judgment ordered for the plaintiff, as demanded in the submitted controversy, with costs.

Follett, J., concurs. Van Brunt, P. J., concurs in result. . '


author: ParkEr, J.—The

text:
    Frank B. De Long et al., Resp’ts, v. DeLong Hook and Eye Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Injunction—Trade names.
    Where a company deliberately attempts to make such use of the name of one of its incorporators as to enable it to secure a portion of the business which another party has built up, it is the province of equity to interfere for the protection of the purchasing public, as well as of such party, and for the suppression of unfair and dishonest competition.
    2. Same—Test.
    The real test, in such case, is whether the thing offered for sale is so arranged and exhibited that, when it strikes the eye of an intending purchaser possessed with ordinary intelligence and judgment, a false impression is likely to be produced,—that the goods of another are being offered for sale.
    3. Costs—Extra allowance.
    An extra allowance will not be granted, where there is no allegation or proof of the value of the subject matter involved in the action,
    Appeal from an interlocutory decree, entered on a decision in favor of plaintiffs.

      JosephH. Choate, for app’lt; Frederick it.. Coudert, for resp’ts.
   ParkEr, J.—The

learned judge at special term decided that the defendant corporation should be restrained from using in selling or placing upon the market, in connection with its goods, the name “DeLong Hook & Eye Company,” upon the ground that the selection of such name was made with the intent to identify the defendant with the plaintiffs’ business, to the injury of the latter, and its use is calculated to induce deception and confusion in the public mind as to the identify of the goods sold by the plaintiffs and defendant, respectively. An attentive examination of._the evidence satisfies us that the determination of fact made at the special term as a basis for its decision is right Undoubtedly, the phenomenal growth of plaintiffs’ business, and the large profits derived therefrom, suggested to one of the promoters of defendant corporation the feasibility of deriving a substantial benefit from the reputation of plaintiffs’ goods, known - as “De Long’s Hooks and Eyes,” because of the fact that his name happened to be DeLong. The facts which support this conclusion were so fully dismissed in- the opinion of the learned judge at special term that it is ■unnecessary for us to do more than present an outline of the more important feature: The plaintiffs put upon the market, in the year 1889 a hook and eye which they called the “De Long Hook & Bye.” They were sewed upon cards upon the top of which was printed, “The De Long Hook & Bye." With much advertising skill, and at considerable expense, the plaintiffs rapidly built up a large business. The sales, which were about $12,000 in 18.90, reached nearly $450,000 in 1893. In the summer of 1892, Oscar A. De Long —a buyer for one of the departments of a large mercantile 'house, and who had, from time to^ time, purchased the plaintiffs’ hooks and eyes, to be sold at retail by his employers—conceived the idea of making a change in the hook, which he calls an improvement, and in the latter part of that year he sought capital necessary to enable him to engage in the hook and eye business. He found persons willing to enter into the enterprise with him, and as a result a corporation was formed with the corporate name of “ The De Long Hook & Bye Company.” Immediately thereafter the company commenced the manufacture and sale of hooks and eyes sewed upon cardboard in the same manner as the plaintiffs’, each of which bore the words, De Long Hook & Bye Company, Makers, New York.” Later, he pasted over those words - the words “ Oscar De Long’s Improved,” pasting the words thus covered up on the back of the card, on a label. The effect intended and accomplished by the use of the words “ De Long,” in connection with the style of the card on which the hooks and eyes were placed, was to secure some part, at least, of the benefit resulting from 'the extensive advertising which the plaintiffs had given to the name De Long ” in connection with their hook and eye business. It is not conceivable that it could have been otherwise, but we are not left to conjecture; for the plaintiffs, in support of their contention that the method adopted by the defendant was intended to, and did, deceive the public, produced witnesses who testified, in effect, that in response to requests for De Long hooks and eyes, made to dealers, they were given defendant’s hook and eye, when they desired the plaintiffs’.

Starting, then, with' the determination of fact of the special term—which we approve—that the defendant deliberately attempted to make such use of the name of one of its incorporators as to enable it to secure a portion of the business which plaintiffs had built up, we have no difficulty in arriving at the legal conclusion reached by that court. That there were slight differences in the name, variations of coloring and size of cards and shape of hooks, and some difference in printed matter on the cards, must be conceded. “ But similarity, not identity, is the usual recourse, where one party seeks to benefit himself by the good' name of another.” Bradley, J., in Celluloid Manuf'g Co. v. Cellonite Manuf’g Co., 32 Fed. 94. The real test in such cases is whether the thing offered for sale is so arranged and exhibited that when it strikes the eye of an intending purchaser, possessed with ordinary intelligence and judgment, a false impression is likely to be produced,—that the goods of another are being offered for sale. And when that inquiry must be answered in the affirmative, as it has in this case, “it is the province of equity to interfere for the protection of the purchasing public, as well as of the plaintiff, and for the suppression of unfair and dishonest competition.” Fischer v. Blank, 138 N. Y. 251; 52 St. Rep. 339. This equity will do where the business practices complained of may not be of such a nature as to enable the party aggrived to obtain redress under the restrictive rules of law, if, nevertheless, they are of such a character as to offend that law of fairness which should govern the acts of men, of which equity may take cognizance. This doctrine has frequently been asserted in other jurisdictions besides our own. In Coats v. Thread Co., 149 U. S., at page 556, the court said:

“ Rival manufacturers may lawfully compete for the patronage of the public in the quality and price of their goods, in the beauty 'and tastefulness of the inclosing packages, in the extent of their advertising, and in the employment of agents, but they have no right to imitative devises to beguile the public into buying their wares under the impression they are buying those of their rivals.”

And in Lawrence Manuf'g Co. v. Tennessee Manuf'g Co., 138 U. S. 537, the court said:

“ Undoubtedly, an unfair and fraudulent competition against the business of the plaintiff, conducted with the intent on the part of the defendant to avail itself of the reputation of the plaintiff to palm off its goods as plaintiff’s, would, in a proper case, constitute ground for relief.”

It is the appellant’s contention that, notwithstanding the determination of the court that defendant’s conduct in the use of the words De Long ” was intended to deceive the public, and enable it to sell its goods as if they were plaintiffs’ goods, and therefore fraudulent, still it cannot be visited with the consequences which ordinarily flow from such action, because of the fact that one of its incorporators and stockholders bore the name of De Long. A man may use his own name, because he cannot truthfully do business under any other; and the law protects that right, ordinarily, even when such use is injurious to another, who has established a prior business of the same kind, and gained a reputation which goes with the name. Even then the courts require that the name shall be honestly used, and will permit no deceit calculated to mislead the public into purchasing his goods under the belief that they are the manufacture of another. But that is not this case, for the promoters of this corporation could have given to it the name of either of the other incorporators, or any other name they liked, provided the designation was honestly made, and without injury to others. But the circumstances surrounding the creation of the defendant, and the name of it, satisfies us, as it did the trial court, that the selection of the name was not an honest one, but a part of the original scheme of Oscar A. De Long to make such use of his own name as would enable him to profit by the name which the plaintiffs had given to their hooks and eyes, and which they had made valuable by much labor and a liberal expenditure of money. The recent case of Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; 63 St. Rep. 724, (decided since the entry of the judgment appealed from) is conclusive that a corporation will not be permitted to make use of a name thus acquired, and for such purposes. In that case it appeared that Charles S. Higgins commenced the manufacture of soap for the market in 1846. After a time, his son, bearing the same name, became interested with him in the business, to which he succeeded upon the death of the senior Higgins. In 1890 the junior Higgins and others formed a corporation called the “ Charles S. Higgins Company,” to which was sold and transferred the soap business of Higgins, together with the good will, labels, trade-marks, etc. The article manufactured was known to the trade as “ Higgins’ Soap." About a year after the corporation commenced the conduct of the soap business, some trouble arose among its officers and directors, resulting in the removal of Higgins from its presidency. As, in the bill of sale to the corporation, Higgins had re-reserved the right to engage in the manufacture of soap in the event of a termination of his employment by the corporation, he at once commenced preparations to that end. A corporation called the “ Higgins Soap Company ” was organized, under the laws of New Jersey, and Charleé S. Higgins was chosen as its president. Impressed upon its bars of soap, and printed upon its wrappers, were the words, “Higgins Soap Company.” The suit to restrain the Higgins Soap Company from making use of its corporate name was unsuccessfully prosecuted until it reached the court of appeals, where it was held that the injunction should issue. . In the course of .the argument the court said :

“The inference seems irresistible that the defendant assumed its corporate name so that it should carry the impression that it was the manufacturer of Higgins soap, so well known to the public. But if the name was assumed in good faith, and without design to mislead the public and acquire the plaintiffs’ trade, the defendant, knowing the facts, must be held to the same responsibility as if it acted under the honest impression that no right of the plaintiffs was invalid.”

In this case, Oscar A. DeLong, the original promoter of defendant, knew all the facts. He even had a conversation with the plaintiff DeLong, in which a mutual attempt was made to discover whether there was any relationship existing between them, and this was some little time before he took any steps looking to the establishment of the hook and eye business. And, further than that, the facts before us are such, as we have already said, as to require the inference that he brought about the naming of the defendant with the intent that the public should receive the impression that it was the manufacturer of “ De Long’s Hooks aud Byes,” so well and favorably known to the public. The court further decided, in Higgins’ Case, that the defendant derived no additional immunity from the fact that the name of Higgins, in its corporate name, was that of one or more of its incorporators, or that one of its members might have engaged in the same business under his own name, or had consented to the use of the name by the defendant. The decision in Higgins' Case answers the contention of the appellant as to that point. The same proposition was recently asserted in William Rogers Manufg Co. v. R. W. Rogers Co., 66 Fed. Rep. 66.

Food Co. v. Massam, 42 Law T. (N. S.) 851; 14 Ch. Div. 784, relied upon by the special term, is, in many of its features, analagous to this one. Briefly stated, the facts were that one Joseph Thorley for many years manufactured and sold an article called “ Thorley’s Food for Cattle,” made according to a receipt not known to the public. After his death, his executors continued the business. A brother, named J. W. Thorley, who was acquainted with the secret process by which the food was manufactured, survived him; and he, with others, formed a company under the name of “ J. W. Thorley Cattle Food Company,” which thereafter manufactured and sold the same article under the name of “ Thorley’s Food for Cattle.” It was held that the company had not the right to use the name of “ Thorley’s Food for Cattle,” unless with such precautions as would prevent purchasers from believing that the articles sold by them were manufactured at the original establishment of Joseph Thorley, and the company was restrained from using its name so as to produce confusion of its identity with that of the plaintiff’s firm. In view of the comment which the court made in Higgins' Case, supra, upon Meneely v. Meneely, 62 N. Y. 327, it is sufficient to say in this case that it is not in point.

While fully concurring with the main features of the j udgment, we nevertheless think the complaint of the appellant, that the judgment is too broad, is well founded. It is certainly more comprehensive than either the decision or the opinion of the trial court. We find no authority in this record for' holding that the defendant may not manufacture and sell hooks and eyes of the character which it was manufacturing. Nor are we able to find any basis for the claim that the plaintiffs have the exclusive right to the use of cards.to hold hooks. In so far as the judgment restrains the defendant from using the words “DeLong,” the judgment'should be affirmed, but it should not embarrass the defendant in any honest effort which it may hereafter make to put its goods upon the market in a manner which shall not have the effect of persuading customers that the defendant’s goods are the manufacture of the plaintiffs. It would seem as if its present form might have that effect. Therefore the judgment should be modified by inserting between the word “ restrain ” and the word “and,” at the end of the first adjudication in the judgment, the following: “ But nothing herein shall operate to prevent the defendant from manufacturing and selling hooks and eyes put up in any form which shall not violate the trade-mark of the plaintiffs, or have the effect to induce the ordinary purchaser to buy defendant’s goods, believing them to be manufactured by the plaintiffs.”

We do not find in the complaint any allegation, nor in the record any testimony, as to the value of the subject-matter involved in this suit. The extra allowance, therefore, seems to have been without authority, and the appellant is entitled to a modification of the judgment in that respect. Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252; 52 St. Rep. 334.

The judgment should be modified in accordance with1 this opinion, and, as modified, affirmed, without costs.

All concur.


author: Pee Cubiam.

text:
    New York Land-Improvement Company, App’lt, v. William S. Chapman, Resp’t.

      (New York Superior Court, General Term,

      Filed October 24, 1895.)

    Appeal—Dismissal.
    Where no order has been made directing the filing of the same, or declaring the case abandoned, the respondent is not in a position to demand the unconditional dismissal of the appeal for want of prosecution, but he is, in ease the appellant is guilty of loches in neglecting to proceed, entitled to arouse him to action and compel him to prosecute or abandon the appeal.
    Appeal from a judgment entered on a verdict directed for plaintiff.

      Burton N. Harrison, for motion; Parrish & Pendleton, opposed.
   Pee Cubiam.

Upon a trial of the issues, had on December 10,1891, the judge presiding directed a verdict for the defendant, on which judgment was shortly thereafter entered for $442.65 costs. The plaintiff thereupon appealed to the general term. A case on appeal was served, to which amendments were proposed by the respondent. Notice was given that the case and amendments would be presented to the trial judge for settlement on a day named. An adjournment was had, by consent of the respective attorneys, until December 12, 1892. On the day preceding the last-mentioned date the respondent’s attorney died, and the appellant, in consequence, did not proceed" with the proposed settlement. Indeed, the death -of the respondent’s attorney suspended all further proceedings until another attorney was substituted, or until thirty days after service of notice on the client to appoint a new attorney. Code, § 65. No such notice was given. On April 9, 1895j Burton N. Harrison was, by order duly entered and served, made the attorney of record for the defendant. The plaintiff was then in a position to proceed, but nevertheless remained passive. No order has been made directing the filing of the case, or declaring the case abandoned. Sup. Ct. Rule 6. Hence the respondent is not in a position to demand the' unconditional dismissal 'of the appeal, but he is entitled.'to arouse the plaintiff to action, and compel it to prosecute or abandon the appeal. The plaintiff has not prosecuted with proper diligence, and is guilty of loches in neglecting to renotice the case for settlement after the substitution of Mr. Harrison, in April last. While the death of the defendant’s former attorney suspended proceedings, the suspension was temporary only, and ceased on the service of the order appointing the new attorney. The duty of proceeding with the appeal according to prescribed practice was revived, and the plaintiff was called upon to act. In view of the almost inexcusable neglect to proceed, the defendant’s motion to dismiss the appeal must be granted, with costs, unless, within five day^ after service of the order to be entered herein, the plaintiff" causes the case and amendments to be submitted to the trial judge for settlement, and pays $10 costs-of motion ; in which event the motion will be denied, without costs.

All concur.


author: Peb Cubiam.

text:
    Vito Trasselli et al., Resp’ts, v. Richard H. Allen, as Surviving Partner, etc., App’lt.

      (New York Superior Court, General Term,

      Filed October, 1895.)

    Tbial—Calendar.
    Where the complaint states a legal and equitable cause of action, and defendant, without claiming a jury trial, insists that the- cause should go on the equity calendar, it is error to grant plaintiffs motion to place it on the clerk’s calendar.
    Appeal from an order, denying defendant’s motion to dismiss the complaint for unreasonable neglect on plaintiff’s part to prosecute the action, and for judgment accordingly.

      Strong & Cadwalader, for app’lt; UUo, Ruebsamen & Cochran, for resp’ts.
   Peb Cubiam.

Upon the facts presented, no sufficient reason -exists for disturbing the order denying defendant’s motion to dismiss the complaint for want of prosecution, and for judgment accordingly. Upon all the facts disclosed, there clearly was no abuse of judicial discretion. That motion having been properly disposed of, the plaintiff’s had the right to have the case restored to the calendar.

The plaintiff’s motion was according to the prayer contained in the affidavit upon which it was founded,—“ that an order may be made herein restoring this action to the calendar for trial; ” but in the notice of motion, accompanying the said affidavit, plaintiff’s attorney asked “ for an order placing the above entitled action on the clerk’s calendar.’1 The order, as entered, provides “ that the case be placed upon the clerk’s calendar of this court.” As matter of fact, the case had been noticed for trial at special term at a time at which there was no separate equity term in this court, and a note of issue had been duly filed, pursuant to which the case had appeared upon the special term calendar; and the case had been repeatedly called in its order upon said calendar, and, after many adjournments, had been marked off. Uo other notice of trial had ever been given, nor any other note of issue filed, ■except as stated. At the time of the motion the court, under its rules, had a separate equity term, and the equity calendar had taken the place of the former special term calendar. Under these circumstances, the case should have been ordered to be placed upon the equity calendar. On the other hand, an inspection of the complaint shows that.it proceeds upon two causes of action ; the first being one at law, and the second being an equitable one.

The consequence is that if the defendant has not already waived his right to have the common-law action tried by a jury,— as to which the record is not clear,—and at the proper time, and in the proper manner, should insist upon a jury trial of that part of the case, that branch of the litigation would have to be sent to a jury term, and ,in that event a direction to place the case upon the clerk’s calendar for that purpose would be proper. But that question is not now before us, because, so far, the defendant has. not raised the point, and on this appeal has contended that the case, as a whole, should have been ordered upon the equity calendar. Moreover, the whole controversy cannot be determined by a jury.

Under all the circumstances, as they appear before us, the two appeals should be disposed of as follows, viz: The order denying

defendant’s motion to dismiss the complaint for want of prosecution, etc., should be affirmed, with costs and disbursements. The order, made upon plaintiffs’ motion, directing the case to be placed upon the clerk’s calendar, should be modified so as to read, “upon the equity calendar of the court”; and as thus modified it should be affirmed, without costs.


author: Bischoff, J.

text:
    In the Matter of the Application by Henry J. Semken for Peremptory Writ of Mandamus, etc,

      (New York Common Pleas, Special Term,

      Filed July, 1895.)

    Certiorari—Excise—License.
    In the absence of some statutory provision to that effect, the New York City Court is without jurisdiction to grant a writ certiorari to review an adverse determination of the board of excise of the city of New York upon an application for a license.
    Application for a peremptory writ of manadamus.

      Browne & Sheehan, for motion ; James M. Fitzsimons, in pro. per.
   Bischoff, J.

In the absence of some statutory provision to such an effect, the city court of New York is without jurisdiction to grant a writ of certiorari to review an adverse determination of the board of excise in the city of New York upon an application for a license. People v. Board of Excise of City of New York, 3 St. Rep. 253. Assuming that the city court of New York is a “city court,” within the meaning of section 1 of chapter 481 of the Laws of 1893, still jurisdiction to grant the writ is not apparent. The statute alluded to provides that a writ of certiorari “may be made returnable to and the cause heard by a city court,” but nowhere empowers the city court to grant or issue the writ. Motion denied.


author: Giegerich, J.

text:
    Charlotte E. Hosmer, Pl’ff, v. James M. Gano et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed October, 1895.)

    Mortgage—Foreclosure—Referee—Compensation.
    A referee, appointed to sell upon a foreclosure sale, under section 3297 of the Code, as amended by chap. 241 of 1895, is not entitled to compensation to exceed fifty dollars, unless the proceeds of the sale which actually come into his hands and for which he is accountable, amount to ten thousand dollars in cash, though the price bid exceed that sum.
    Action to foreclose a mortgage. The referee appointed to make the sale on foreclosure of the mortgage moves to have his compensation fixed.

      Edward H. Hawke, Jr., for motion; James B. Marvin, opposed.
   Giegerich, J.

This is an application to fix the compensation of a referee upon sale of real property, pursuant to section 8297 of the Code of Civil Procedure, as amended by chapter 241 of the Laws of ,1895, which, among other things, provides:

“A referee’s compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, exceed fifty dollars unless the property sold for ten thousand dollars or upwards, in which event the referee may receive such additional compensation as to the court may seem proper, or in any other cause five hundred dollars.”

It appears from the referee’s report of sale that the • mortgaged premises, consisting of two lots of land, were sold in separate parcels, and realized together the sum of $47,000; that the same were sold subject to certain liens; and that the referee, after allowing the purchaser out of the total purchase price the amount of incumbering charges, aggregating $44,077.60, received and was actually accountable for the sum of $2,922.40 only. It seems to me. that the legislature, by the act in question, intended to give additional compensation only in cases where the referee actually received and was accountable for $10,000 or more in cash. Inasmuch as the referee, herein did not receive nor was he at any time accountable for such sum, I think, under the circumstances, that he is not entitled to a larger amount than $50 as his compensation. I therefore fix it at that sum.


text:
    The People, Pl’ff, v. Nathan Connors et al., Def’ts.

      (Court of Sessions, New York County,

      Filed July, 1895.)

    Criminal law—Indictment—Less offense.
    Upon the trial of an indictment for murder, the defendant cannot be convicted of an assault.

      John it. Fellows, Dist. Atty., and Francis V. S. Oliver, Asst. Dist. Atty., for People; Frederick B. House and Abraham Levy for def’ts.
   Goff, Recorder (orally).—Gentlemen of the jury: Counsel for the defense and the people have unthinkingly anticipated a condition of the case that has not arisen. There is no such question before the court, though I have been enlightened by argument on both sides. The real question here presented is whether or no there is sufficient testimony in this case to go before the jury upon the point of issue raised by the district attorney, to wit, the crime of manslaughter in the second degree; and that is the question that I .have to determine, and that is the only issue that has been presented to this jury, and that is the only issue upon which testimony has been taken. That was the challenge of the prosecution, and the defense accepted that challenge, and upon the issue growing out of that challenge all the testimony that has been taken has been submitted. Now, what does the defense do, the prosecution having closed its case ?

Mr. House: We ask your honor to advise the jury to acquit, upon the ground that there is no evidence here to show that these defendants, or any of them, have committed the crime of manslaughter in the second degree.

The Court: What does the district attorney say to that motion ?

Mr. Oliver: If the court pleases, the district attorney says, in answer to that, that he agrees with counsel for the defense that there is no sufficient evidence to go to the jury on the crime of manslaughter in the second degree, but that there is sufficient evidence.

The Court: No; that will do. Gentlemen of the jury, upon the motion made by the defendant, and uncontested by the prosecution, but conceded by the prosecution, that there is no testimony before you to warrant the submission to you of the question"of the guilt or innocence of these defendants of the crime of manslaughter in the seiond degree, I decide that that motion must be granted, because there is no sufficient testimony before you to warrant the submission to you of the question of the guilt or innocence of the defendants of the crime of manslaughter in the second degree. What does the district attorney do? Is there any reason why these defendants should not be discharged ?

Mr. Oliver : The district attorney maintains now, as before, that, although the court has ruled that there is no evidence upon which the charge of manslaughter in the second degree might be considered by the jury, still the people have proof that an assault has been committed upon this man ; and on the evidence before the jury now of that assault the district attorney maintains that the jury ought to be allowed and directed to take into consideration such testimony, as to whether an assault has been committed or not.

The Court: What has the defense to say to the motion, without argument fro forma.

Mr. Levy: I ask that the verdict be first rendered acquitting the defendants, and then I say that the lesser crime is merged in the greater; and, by the acquittal of the defendants of manslaughter in the second degreee, I contend that the entire matter is disposed of.

The Court: How, I will decide the motion made by the district attorney. Gentlemen, as-far as I am informed by the very interesting argument of counsel on either side, there has been no authority cited directly in point which I could follow as a precedent in this state; and I am therefore compelled to decide the question upon principle, as derived from the language of the statute. Section 278 of the Criminal Code provides : “The indictment must charge but one crime and in one form, except as in the next section provided.” This.indictment charged but one crime, and that is murder in the first degree; and it sets forth that by certain means the death of the deceased was accomplished, and that of the wounds and injuries which he received he died. Section 279, referred to in section 278, provides: “The crime may be charged in separate counts to have been committed in a different manner, or by different means ; and where the acts complained of may constitute different crimes, such crimes may be charged in separate counts.” There is but one charge in this indictment, and tho charges the crime to have been committed in but one way, and that is by violence ; that death was accomplished by violence; and therefore the indictment does not come under section 279. Therefore we have to treat the inductment as being found exclusively under the terms of section 278, which provides : “The indictment' must charge but one crime and in one form, except as in the next section provided.” So we have to treat the indictment in that way under that section.

I consider that one object, if not the principal object, of the criminal laws of this state was to reach definitiveness and certainty of procedure, and to abolish, as far as possible, the somewhat cumbersome forms of procedure that had. grown up under the common law ; and I take it, therefore, that section 278 was meant directly to accomplish that object; that is, that the indictment should charge but one crime, and in but one form; and the purpose of that, as may be appreciated by all students of criminal law and its history, was to protect defendants from being brought into court upon one indictment, and, practically speaking, being tried upon another; the purpose being to apprise the defendant of the crime charged against him, to give him an opportunity to prepare his defense to meet that crime, and no other; and that the old custom, which had brought with it, in many cases, so much injustice, where the defendant may have been brought into court under one indictment,. and practically speaking, convicted of a crime not mentioned or embraced in that indictment, should be abolished. Therefore, I take that principle as the guiding principle for me in deciding this motion. There is but one crime charged, and these defendants were called upon to meet but one accusation, to wit, the murder of the deceased person. It is true that section 444 provides : “Upon an indictment for a crime consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment, and guilty of any degree inferior thereto, or of an attempt to commit the crime.” You must mark the language of that section, “consisting of different degrees.” A jury may find the defendant guilty of a lesser degree of which that crime consists. Section 445 provides: “In all other cases, the defendant may tie found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.” Now, the language of this section, “in all cases,” must necessarily exclude cases where the crime consists of different degrees. They are expected by the language of section 445 ; because, if they were not excepted, the language “other” would not be used. In other cases, where crimes do hot consist of different degrees, and where the act charged is included in that which is charged in the indictment, the defendant may be found guilty of any crime embraced in that indictment.

Does murder consist of different degrees? If it does consist of different degrees, it is necessarily excluded from the operations of section 445. Homicide, of course, is murder, and it includes all the degrees of murder. Homicide is defined as the killing of one human being by the act, procurement, or omission of another. Murder cannot exist without being homicide, because its definition is the killing of one human being by another. Section 180, Pen. Code, defines homicide as either — First, murder; second, manslaughter ; third, excusable homicide; and, fourth, justifiable homicide. There are four primary degrees embraced in the definition of homicide,—murder, manslaughter, and excusable or justifiable homicide. Other sections subdivide murder into the first and second degrees of murder, and those degrees must be included in the degree of murder. Other sections subdivide manslaughter into two degrees,—manslaughter in the first degree and manslaughter in the second degree; and those degrees must be included in the degree of manslaughter. Therefore the two subdivisions of murder must be embraced in the degree of murder, and the two subdivisions of manslaughter must be embraced and included in the degree of manslaughter; and, murder and manslaughter being degrees of homicide, I rule that they are but degrees of one crime. I therefore, upon principle, and without the light of precedent in point, or without controlling authority, decide that this indictment being for a crime, to wit, the crime of murder, and that crime consisting of several degrees, to wit, the crime of nfurder in the first degree, the crime of murder in the second degree, the crime of manslaughter in the first degree, and the crime of manslaughter in the second degree, the proof is confined to evidence embracing any of those minor degrees; and that, there being no evidence before this jury to sustain a judgment of conviction for any of these degrees of homicide, no other crime can be submitted for the consideration of this jury; and I advise this jury to acquit these defendants of the crime charged in this indictment, and of its constitutent degrees.

Verdict, “Not guilty.”


author: Gaynor, J.

text:
    Elizabeth A. Culliford, Pl’ff, v. Theodore A. Walzer et al., Def’ts.

      (Supreme Court, Circuit, Rockland County,

      Filed July, 1895.)

    Party—Bail bond.
    Where, after the defendant has procured his release from arrest in a civil action by giving bail, judgment is rendered against him and affirmed at general term, but the appeal to the court of appeals is dismissed, and undertaking cancelled, and the sureties in the undertaking on appeal to the general term pay the amount of the original and appeal judgments, the plaintiff in the bail bond, who obtains a judgment of affirmance on a subsequent appeal to the court of appeals, is entitled to be deemed the real party in interest to bring an action on the bail bond for himself and as trustee for the sureties in the general term appeal undertaking, insterd of each bringing a separate action thereon.
    Action on bail bond.

      Spiegelberg & Wise, for pl’ff; John A. Grow, for def’ts.
   Gaynor, J.

In an action by this plaintiff against one Gad in the superior court of New York City, the said defendant therein was taken under an order of arrest, and released on $1,000 bail. Thereafter judgment was obtained against him therein for $1,338.90. On appeal therefrom to the general term, he gave an undertaking staying execution. Judgment of affirmance and for $105.68 costs followed. Culliford v. Gad, 44 St. Rep. 222. An appeal was taken to the court of appeals, and execution was stayed thereon until April 1, 1892, when the undertaking affecting the stay was canceled for fraud in the giving thereof, by an order of the superior court; and, on April 23d following, the appeal was dismissed by the court of appeals, and a judgment for $38.18 costs entered thereon. Meanwhile, on April 19th, executions against property had been issued upon the said first two judgments, and on April 25th a like execution was issued on the third, judgment. On April 29th all of these executions were returned unsatisfied. The said defendant perfected a new appeal to the court of appeals thereafter, viz. May 11, 1892, by service of a new notice of appeal and undertaking to stay execution of the judgments. But on May 10th the plaintiff had begun an action on the undertaking given on the appeal to the general term. Only one of the sureties was served, and on June 1st judgment was taken against him on default for the amount of the said two first judgments and costs, viz. $1,573.64. Execution thereon was at once issued, but it was withdrawn after the sheriff had advertised property for sale, and the amount of the judgment was paid on or about August 30,1892. • At the time this judgment was entered, and the execution was issued, and the money paid, the' stay on the said second appeal to the court of appeals was operative. This second appeal to the court of appeals resulted,r on October 6, 1893, in a judgment of affirmance and for $110.34 costs. Execution thereon was issued and returned unsatisfied, and then, on March 11, 1893, executions against the person on all four judgments were issued, and théy were returned “Defendant not found,” on March 30th. Thereupon this action was begun by the plaintiff in the said action against Grad against the surieties in the bail undertaking to recover the $1,000 bail. The said undertaking covers not merely the principal judgment in that action, but also the said three succeeding judgments for costs on the several appeals. Appleby v. Robinson, 44 Barb. 316. It follows that the plaintiff is entitled, at all events, to recover herein the amount of the last two judgments, viz. one for $38.18, and the other for $110.34; for these were not included in his action upon the undertaking on appeal to the general term, and remain unpaid. In respect of the other two judgments, they were embraced in the said action. The surety against whom the judgment therein was obtained became vested, upon payment thereof, with the right of subrogation-to the rights of this plaintiff under the said two judgments, to look for indemnity to the said* bail undertaking of these defendants. But, in place of so subrogating himself, he consented that the said judgments should stand in the name of the plaintiff, and that the rights and remedies thereunder, and also common to the plaintiff’s two later judgments, should be enforced by the plaintiff. I think this may be done, and that the plaintiff is to be deemed herein the real party in interest to bring fhis action upon the said bail undertaking in whole, the proceeds to be received partly as his, and partly as trustee for the said surety on the appeal undertaking, instead of each bringing a' separate action thereon. Madison Square Bank v. Pierce, 137 N. Y. 444 ; 51 St. Rep. 175. The bail are primarily answerable to the plaintiff for $1,000 upon their undertaking, and the equities between him and the said surety on the appeal undertaking do not concern them.

I see nothing in the contention that the sureties on appeal in such a case are primarily liable,- and not entitled to subrogation to the rights of the plaintiff under the first j udgment to recover of the bail. The primary liability is upon the defendant in such a case, and then upon his bail if their undertaking be broken; and the sureties upon appeal, by paying the amount of their liability, are equitably subrogated to the plaintiff’s right to enforce the liability of t.he bail.

Nor may the defendants herein object that the judgment was entered and the execution issued against the said surety on the appeal undertaking while the execution of the judgments against Grad was stayed by the second perfected appeal to the court of appeals, for that is no concern of theirs.

Judgment for plaintiff for $1,000.

. Ordered accordingly.