text:
    ANNA ZUGNER, Plaintiff and Respondent, v. WILLIAM J. BEST, Receiver, &c. German Savings Bank, &c., Defendant and Appellant.
    Savings Banks.—Notice of title.
    In this case plaintiff intrusted to her husband a bond belonging to her, to be deposited in the German Savings Bank for safe keeping, which bond he thereupon took to said bank with plaintiff’s bank book, and delivered to the cashier, who placed the bond in the bank safe, and wrote the following memorandum and attached it to said bank book, and returned the same to defendant’s husband : “Mrs. Anna Zugner, Morrisania Steamboat Co., No. 1, Bond $1,000, August 20, 1873.”
    Meld, that the said transaction was had with the cashier as an officer of the bank in the line of his duty, and that the bank recognized, and was charged with notice of plaintiff’s title to the bond. There was other evidence in the case of notice to the bank’s trustees of plaintiff’s title. Also, that a subsequent transfer of the bond to the bank by plaintiff’s husband was void.
    Before Curtis, Ch. J., and. Sedgwick, J.

      Decided January 6, 1879.

      Appeal by the defendant from a judgment entered in plaintiff’s favor, upon the report of a referee.
    The action is brought to recover the possession of a bond for $1,000 of the Morrisania Steamboat Company, claimed to have been deposited with the German Savings Bank August 20,1873, for safe keeping, and found there by the defendant when he was appointed its receiver. The defendant claims it was transferred to the bank for a good and valuable consideration. The referee found for the plaintiff, and the defendant appeals.

      William F. Fiero, for appellant.

      Flial F. Hall, for respondent.
   By the Court.—Curtis, Ch. J.

There is a difficulty in sustaining the position taken by the defendant, that the transaction of depositing this bond for safe-keeping was between the plaintiff’s husband and Hoeland, the cashier of the savings bank, personally, and not as an officer of the bank in the line of his duty, and that therefore the bank was not charged with notice of the plaintiff’s title to the bond.

The evidence shows that the bond was bought with plaintiff’s money, and was intrusted to her husband to deposit in the bank for safe-keeping. That he thereupon took it to the bank with the plaintiff’s bank book, gave the bond to the cashier, who placed the bond in the bank safe and wrote the following memorandum on a card, and pasted it in the plaintiff’s bank book and returned it to her husband: “Mrs. Anna Zugner, Morrisania Steamboat Co. fío. 1. Bond $1,000. August 20, 1873, left with the German Savings Bank.”

This is the form of the memorandum as stated in the evidence in the case, though the last six words do not appear in the referee’s report or in the plaintiff’s points, but their presence or absence would not affect the conclusion in my mind, that this transaction was with the bank as such, and that the bank had due notice and recognized the title of the plaintiff to the bond as her property solely, and that the referee found correctly in that respect, and in accordance with the evidence.

The defendant claims that the bank in December, 1875, became the owner of the bond, by the transfer of it by the husband to the bank. This view is not free from difficulties. Even if the husband did attempt to transfer the plaintiff’s property to the bank, it is apparent that the bank had notice that it was the wife’s property, and the proofs establish that she had no knowledge or notice of any such act on her husband’s part, that it was unauthorized by her, and that both previously and for some time after, she received the interest coupons through her husband from the bank and caused them to be collected, and that such transfer was without consideration. But irrespective of the above embarrassments affecting the transfer, the weight of evidence is to the effect that the husband, when he attempted temporarily, as he claims, to contribute it towards sustaining the sinking fortunes of the bank, told his associate trustees of the bank that it belonged to his wife. The case discloses how a savings bank can be made to inflict injury and loss on those it should protect. Wherever unsuitable persons are organized under the forms of law, as custodians of the savings of the weak, a court of justice is called on, to narrow, as far as is consistent with law, the area of losses.

The judgment appealed from should be affirmed with costs, to be paid out of the funds in the hands of the defendant as receiver.

Sedgwick, J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    JAMES LAWSON, et al., Plaintiffs and Respondents, v. HERMAN S. BACHMAN, et al., Defendants and Appellants.
    Agreement, construction on.—Limitation on time.—Reasonable time, &c.
    The agreement of plaintiffs to use their best efforts, and at their own expense, to collect the claim 11 in the shortest practicable Ume, ” did not specifically provide for the duration of time through which pMntiffs were bound to make efforts, and it was also doubtful whether there was any implied obligation upon the 1 defendants not to empower another agent in the same business. Assuming, however, that the contract created such an obligation, there was no time specified in the contract in which plaintiffs had the right, and should be allowed to act as sole agents for the defendants.
    Therefore, a reasonable time, under the contract, for each party must be allowed; that is, a period to be fixed according to the circumstances, for the plaintiffs to collect the claim and the defendants to forbear the employment of other agents, and after the expiration of that period the uefendants had the right to employ other agents and proceed in the collection of the claim.

      Held, that under the facts in this case that reasonable time had expired, and defendant’s action in the employment of other agents and in the collection of the claim, was justifiable under the contract.
    -This limitation as to time was a part of this contract, as matter of law. The power contained in the .contract was not revocable, ■because of the lapse of time, but it simply .expired with the expiration of a reasonable time .or period, which the plaintiffs had under the contract to collect the claim.
    Before Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal from judgment entered upon a verdict for' plaintiff by direction of the court.

      The action was for compensation for services by plaintiffs, under the following written agreement:
    “ This Agreement, made this 25th day of April, A. D. 1871, between Messrs. Bachman Brothers, of and Lawson & Walker, of the city of New York, witnesses: That whereas, the said Bach-man Brothers have employed said Lawson & Walker, and authorized them by power of attorney, of even date herewith, to collect our claim arising out of the capture of the ship Commonwealth and her cargo, by the armed rebel cruiser the Florida, the said Lawson & Walker agree to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time, and to indemnify and save harmless the said Bachman Brothers from and against any and all loss or damage from any of the acts of the said Lawson & Walker in the premises.
    “ And the said Bachman Brothers, in consideration of the premises, agree to allow and pay to said Lawson & Walker a compensation equal to twenty-five (25 f) per cent, of whatever sum shall be collected on the said claim.”
    The defendants also made their power of attorney to the plaintiffs, to collect the claim, which was described as it had been in the agreement.
    Between the date of the agreement and some day in 1872, when the plaintiffs’ firm dissolved and went into liquidation, the defendants handed to the plaintiff the bill of lading and the invoice of the goods destroyed. The plaintiffs filed a notice and abstract of the claim, in the department of State, at Washington, and prepared a memorial stating the circumstances of the claim, which on December 11, 1872, they sent to defendants, but never received it back. They also went to Washington, to ascertain the condition of the case and the prospect of a Settlement. The plaintiffs’ firm went into liquidation in the year 1872. The testimony did not show what was the legal character of the claim or against what person or government it was made.
    ¡Nothing further was done in the matter by plaintiffs, nor communication had between them and defendants until October 19,1874.
    In June, 1874, after the award of the arbitration of Geneva, congress passed the act entitled “An act for the creation of a court for the adjudication and disposition of certain moneys received into the treasury, under an award made by the tribunal of arbitration constituted by virtue of the first article of the treaty concluded at Washington, &c.” The act created a court, to pass upon claims for losses by the depredations of the Florida and other steamers, and to direct payment of valid claims out of the award.
    On October 19, 1874, the plaintiffs, without a request of defendants, prepared a petition for the court, and inclosed it in a letter, which contained “Please return to us, with the petition when signed, the memorial, also signed, which we forwarded you for signature on December 11, 1872, and duplicate copies procured from the court, by which the originals were granted, of your certificate of naturalization.” This letter was signed Lawson & Walker, in liquidation.
    After this date, but in October, 1874, one of the defendants called upon one of the plaintiffs, and, telling Mm in substance that the defendants had employed another attorney, requested him to surrender the invoice and bill of lading, and to release them from the agreement. The person representing the plaintiffs' surrendered the invoice and bill, but refused to release the defendants. Either before this interview the defendants had employed another person to represent them before the court established by the act, or shortly after it they employed him. In due course, the defendants recéived the ámount claimed by them.

      The defendants, through their new attorney, prosecuted their case before the court, and collected their damages in the sum of $3,034.
    The plaintiff gave testimony that if they had proceeded to collect, they would have incurred expenses to about the amount of $125, and the court directed a verdict for them for one-quarter of the amount collected, less this expense.
    The defendant took exception, having asked for a dismissal of the complaint.

      Chas. F. MacLean, for appellants.

      Frederick B. Jennings, for respondents.
   By the Court.—Sedgwick, J.

The-agreement of the plaintiffs, “to use their best efforts, at their own expense, to collect the said claim in the shortest practicable time,” did not specifically provide for the duration of time through which they were bound to make the efforts. It is very doubtful, at least, whether there was any implied obligation on the part of the defendants, not to empower another agent in the same business. Assuming that there was, there was no time specified in which they were to allow the plaintiffs to act as sole agents. Therefore, the one could only claim a reasonable time, i. e., a period to be fixed according to the circumstances, in which to collect the claim, and the other had the right, after this reasonable time, to proceed in his own way by other agents to collect the claim. This limitation as to time was a part of the contract as matter of law, and the power was not revocable because of the lapse of time but then expired.

After the defendants omitted to sign and return the memorial sent to them December 11, 1872, the plaintiffs did nothing in act or word for two years. This want of action was not due to the defendants retaining the memorial. There was nothing to be done, and the memorial would have served no other purpose than was accomplished by filing the abstract of the claim in the State department. I am of opinion, that after so much time, the agreement was at an end. It is also manifest, from the circumstances, that not only had the time which the law provided passed, but that the plaintiffs had ceased their efforts, and could not have," through the two years, done any service which would have had any effect in prosecuting the claim or securing its success. So far as the testimony shows, or we may judge from the character of the case, there was , nothing to be done. The defendants, therefore, had the right, which they used, of employing another attorney, and the plaintiffs’ refusal to recognize this right.did not affect its validity.

If this conclusion were not correct,- the combination of considerations in the case, viz.: the lapse of time, the agents going into liquidation, the' change in the intrinsic character of the claim, from a claim against some government, resting upon general principles of international obligation, to ■ a claim against a fund, which was not brought, into existence by any effort of the plaintiffs, would convince me that the agreement had expired by its own limitations before the time, in 1874, when the plaintiffs, without request of defendants, attempted to begin a new prosecution of the claim for damages.

The judgment should be reversed, and a new trial ■ ordered, with costs of appeal to appellant to abide the event of the action.

Fkeedman, J., concurred.


text:
    HUBBARD N. MITCHELL, Plaintiff, v. THOMAS CORNELL, et al., Defendants.
    Contract, damages fob breach thereof.—Charter of steamboat, &c.
    In the case of the charter of a steamboat to be used in the excursion business on the Hudson River, and other specified waters, at a specified sum per week, a breach thereof was alleged and established as against the owners, the defendants, wl»o took possession of the steamboat and deprived the plaintiffs of the same.

      Held, as to the question of damages, that unearned and speculative profits cannot be included as a part of the damages to be recovered (Wehle y. Haviland", 69 B. T. 451).
    The rule of damages in favor of the plaintiff in this case is,
    1. The market value of the charter, with its limitations and conditions for its unexpired term.
    3. Or the difference (if any) between the price named in the charter and the price that plaintiffs would have to pay in order to hire another equally good steamboat for the business, with a suitable compensation for the plaintiffs’ time, trouble and expense in obtaining such other boat.
    3. Or the difference between the price to be paid by plaintiffs under the charter, and the market value of the use of the boat, through the unexpired term of the charter for the excursion business, if there was such a value (Blanchard y. Ely, 31 W. 343; Clark y. Maugha, 1 Den. 317; Griffin ®. Colen, 1617". T. 491; Rogers v. Beard, 36 Barb. 31; Cassidy a. Le Fever, 45 B. T. 563; Allen v. Fox, 51 Id. 563).
    The offer of plaintiffs to prove what would have been the profits of an excursion business, carried on with the steamboat in question, on objection, was properly overruled.
    The offers of plaintiffs to prove, 1. That there were opportunities to charter the boat for excursions, &c. 3. What was the market value of a boat of that kind for excursions, &c.; and in connection with this testimony to show the daily expense of running the boat, claiming that the evidence thus offered would show profits, &c., were improperly excluded; because this evidence would have properly established the market value of the use of the boat for the unexpired term of the charter.

      Before Curtis, Cli. J., Sedg-wick and Freedman, JJ.

      Decided January 6, 1879.
    Exceptions ordered to be heard at general term, in the first instance, complaint being dismissed.
    The complaint alleged that the parties entered into an agreement in writing whereby the defendant chartered the steamboat the William, Coólc, her engine, &c., unto the plaintiff for ninety-two days, from June 8, 1875, to Septen^er 7, 1875, the said boat to be used in the excursion business on the Hudson River and other specified waters, the plaintiff to pay $130.43 for each day, payments to be made on Monday of each week; paying forthwith $1,000 as a guarantee against loss by defendants : and further it was agreed that in case of failure to pay the charter money on every Monday the defendant might at their option take possession of said steamboat on the following day after such failure, and that the plaintiff should be responsible for all damages to said steamboat, except breakage of machinery, and all damages to other vessels or the property of other parties, unless such damages should result from the management or action of the pilot or captain ; that the plaintiff went into possession of the boat and performed the agreement on his part; that on July 15, 1875, the defendants “unlawfully and wrongfully dispossessed the plaintiff of said steamer and took possession of the same, against the wishes and protest of plaintiff, and converted the same to their own uses and purposes ; thereby depriving the plaintiff of all authority or power whatsoever over the said boat, involving the utter ruin of his business, and subjecting him to great pecuniary embarrassment and loss. By reason whereof the plaintiff has been subjected to damages amounting at least to $7,000 and upwards.”

      The answer denied the unlawful and wrongful dispossession and conversion, and alleged that the defendants took possession of the boat by virtue- of the agreement, the plaintiff having omitted to make the payment provided.
    On the trial the plaintiff proved the charter, and taking possession of the boat; he also gave evidence tending to prove that he made payments in accordance with a verbal arrangement with the defendants, which entitled him to remain in possession of the steamboat, but that the defendants believing that due payment had not been made, took possession of the boat on July 15, 1875, and kept him out of possession thenceforward.
    Certain questions were asked and offers made, in reference to the damages, which were the basis of the exceptions noticed in the opinion of the court. The plaintiff giving no other proof of damage, the complaint was dismissed and the exceptions were ordered to be heard at general term in the first instance.

      A. J. Yanderpoel and A. JY. Weller, for plaintiff.

      Benedict, Taft & Benedict, for defendants.
   By the Court.—Sedgwick, J.

The complaint did not charge and the proof did not show, that the defendants’ act in taking possession of the steamboat was malicious. The measure of damages therefore was compensation to the plaintiff, assuming that he had a cause of-action, and unearned and speculative profits cannot be included as a part of the damages to be recovered (Wehle v. Haviland, 69 N. Y. 451). This is a specific rule to be followed here. This case is not one of trespass, the direct and immediate consequence of which was the breaking up of a business. There was no direct interference with the plaintiff’s excursions. If the boat had been taken by the defendants when he had upon it a large number of people, ready to make an excursion, and the excursion being on foot was directly broken up, a question not in the present case would have been presented. The plaintiff was deprived of the use of the boat for excursions. But there was no proof that he could not, for that reason, continue his business of gaining profits from organizing excursions. The presumption is, in a commercial port like New York, and it is a matter of common knowledge, that other boats could be hired, fitted for plaintiff’s purposes.

I am of opinion therefore that the plaintiff could have as damages (if the defendants’ act was wrongful), 1st, the market value of the charter, with its limitations and conditions for its unexpired time, if there were such a value; 2d, or the difference (if any) it would require to be paid to hire another equally fit boat, and a compensation to be fixed by the jury for the plaintiff's time and trouble in procuring another boat; 3d, or the difference between the price to be paid by plaintiff under the charter-party and the market value of the use of the boat through the unexpired time of the charter, for the purposes of excursions, if there were such a value (Blanchard v. Ely, 21 W. 342 ; Clark v. Marsiglia, 1 Den. 317; Griffin v. Colver, 16 N. Y. 491; Rogers v. Beard, 36 Barb. 31; Cassidy v. LeFevre, 45 N. Y. 562 ; Allen v. Fox, 51 Id. 562). The plaintiff was not entitled to evidence offered to show the probable future profits. They were uncertain and contingent, depending upon weather, the whim of people seeking pleasure, and other accidental facts.

In Durkee v. Mott, 8 Barb. 426, the court held that the plaintiff might recover what he would have made if the defendant had kept the contract and paid what, by the contract, he had promised to pay. This would have called upon the plaintiff to prove certain matters of expenses, viz.: labor, which are not uncertain and contingent so far as they affected the measure of damages in plaintiff’s favor. The damages had regard to the very subject-matter of the contract and not to a remote and only possible consequence of a breach.

In Bagley v. Smith, 10 N. Y. 489, the damages were held to be compensation for a loss of future profits, because the loss was a direct and immediate consequence of a breach of the contract, which Was made by both parties with reference to future profits.

In Marquart v. La Farge, 5 Duer, 565, it was assumed, on the facts of the case, that the immediate, direct, and necessary consequence of the defendant’s tort was a breaking up of plaintiff’s business, and that the value of the good-will of the business could be recovered. The court therefore sustained the admission of evidence as to the character of the business before the trespass, intimating that testimony being in substance a calculation of future or probable profits, would not have been allowed.

I am therefore of opinion that the plaintiff’s offer of testimony to prove what would have been the profits of a,n excursion business carried on with the boat was properly overruled. The testimony as to the profits immediately before the defendants took possession was irrelevant and immaterial, because the plaintiff was not entitled to a recovery for the breaking up of a business, for which the defendant was not liable.

But I am constrained, from the case as settled, to think, that certain evidence offered by plaintiff, as to the value of the use of the boat for the unexpired time of the charter-party was excluded, which should have been allowed.

While the plaintiff was on the stand he was asked on his own behalf, Were there opportunities after July 15, down to September 7, to charter the boat, the William Coolc, for excursions beyond those mentioned in a certain list that had been given in evidence, of excursions for which the boat had been taken by third parties ? Upon defendant’s objections the question was excluded. The plaintiff’s counsel then, in the words of the case, proposes to prove the market value of a boat of that kind, for excursions similar to those mentioned in the list, and in addition to that, offers to show the daily expenses of running the boat, and claims that the boat could be chartered for more than it would cost to run the boat and the rent of the boat. An objection to the witness not being competent to express an “opinion on the subject” had been waived. The testimony would have gone to show what was the market value of the use of the boat for the unexpired time of the charter. He should have been allowed to prove this, as the breach had directly deprived him of the use. There was nothing uncertain or speculative in that, or in the running expense which it was proposed to deduct.

I regret to come to this conclusion, for having tried the case once, and in considering what has been the nature of the real dispute between the parties, I am inclined to think that the plaintiff does not actually rest his claim to damages upon the kind of proof now in question, but the point was fairly made upon the trial, and here the plaintiff is entitled to a new trial, if the exception is good, as I think it is.

Later in the trial, the plaintiff was asked in his own behalf what it would have cost to hire a boat after the defendants took possession for the unexpired time, or a charter like the one in suit. The subject-matter of the inquiry was proper, but the question was properly excluded, as the defendants then took an objection that the witness had not sufficient knowledge or experience to answer the question, and in fact it appeared that he had not.

The exception as to the value of the use of the boat from July 15 to September 7 being sustained, there should be a new trial, with costs to abide the event.

Freedman, J., concurred.


text:
    DAVID THOMSON, et al, Plaintiffs and Respondents, v. THE LIVERPOOL AND GREAT WESTERN STEAM CO. (Limited), Defendant and Appellant.
    Bill of lading.—Negligence of carriers.—Motion for direction OF VERDICT, EFEECT OF.
    Plaintiff shipped certain goods upon one of defendant’s steamships, under a bill of lading containing the following clause:— “ Goods to be taken by consignee immediately, &c., otherwise they will be landed by the master and deposited at the expense of the consignee and at his risk, &a., in the warehouse provided for that purpose, or sent to the public store, as the collector of the port shall direct, &c. &c.”
    Upon the arrival of the vessel, defendant notified the consignee that said goods were upon its (defendant’s) dock, and that they must be removed during the day; that the company would no longer be responsible for them. They were not removed, and remained there during the next day, at which time a portion of the same were stolen, without negligence on the part of defendant.

      Held, that the defendant was liable, under the above clause of the bill of lading, for damages for non-delivery.
    When counsel for each party moves upon the trial for a direction to the jury in his favor, all questions of fact are thereby submitted to the judge; and his finding of any fact necessary to the direction he makes, is conclusive.
    Before Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal by defendants from judgment entered on verdict and from order denying motion for a new trial made upon the minutes.

      The action was for damages for non-delivery upon demand of twenty ingots of tin, of value of $239, conigned to plaintiffs and shipped upon the steamship of defendant under a bill of lading which contained the following clause, viz: “ The goods to be taken from alongside by the consignee immediately the vessel is ready to discharge, otherwise they will be landed by the master, and deposited at the expense of the consignee and at his risk of &c., in the warehouse provided for that purpose, or sent to the public store, as the collector of the port shall direct, and when de-, posited in the warehouse to be subject to storage ; the collector of the port being hereby authorized to grant a general order for discharge immediately after entry o.f the ship.”
    The answer in substance was that on the arrival of the vessel the tin was placed upon defendant’s dock in good order and that said dock is reasonably well protected, and guarded against damage by weather or loss by theft: that thereupon and about noon of Saturday, March 4, 1876, the defendants notified plaintiffs they must remove said tin on that day, that defendants did not wish the tin to remain on its dock over the following Sunday, and defendant refused to be responsible for the custody of the tin after that day; that defendants expecting and believing that plaintiffs would > remove the tin on Saturday took no steps toward depositing the same in any warehouse; that plaintiff did not remove the tin on the Saturday, and that during the night of Sunday the tin was stolen from the dock by river thieves, without any fault or negligence on the part of defendants. -
    ' The testimony may be stated for the purpose of this appeal, as showing that the plaintiff had notice of arrival of the tin about noon of Saturday, and that thereafter the goods remained ready for delivery down to the close of business hours on Saturday ; and that this was a reasonable time to give the plaintiffs to remove the tin ; that the tin remained on the wharf over Sunday; that the wharf had special protection against thieves, and two watchmen were employed, but that on Sunday night it was stolen.
    The judge directed a verdict for the plaintiff, and a motion upon the minutes for a new trial was denied.

      A. C. Merrett, for appellants.

      James Thomson, for respondent.
   By the Court.—Sedgwick, J.

The course taken upon the trial by the learned counsel for the respective parties, made a very narrow question for the judge at the trial and for this court on appeal. Bach counsel moved for a direction to the jury in his favor. All questions of fact were thereby submitted to the judge and his finding as to any fact necessary to the direction he did make is conclusive.

The defendant’s counsel moved on specific grounds, thereby turning the attention of the judge away from all other grounds. The first two grounds were that plaintiff had notice of arrival and had reasonable time to remove. The learned court, on the facts, acceded to these propositions. The sole remaining ground was that thereafter the goods were stolen without any negligence by defendants. To this the court did not agree. The court made some remarks in giving a direction for the plaintiff. They were concise and suggestive—as the custom is upon a trial—and were not meant to be exhaustive. If they had not been made the inference would have been that the court may have found as a fact, that the loss by theft occurred from the negligence of defendants, and this would be conclusive. It appears from the opinion of the court, however, it deemed that after responsibility as carrier ended, that is, when reasonable time had passed after notice to remove, there was a specific contract duty on the part of defendants to store in a warehouse; that the bill of lading substituted the particular duty of seeing that the goods had the special protection of a warehouse, in the place of the general obligation of a bailee or warehouseman, or of providing a safe place of deposit. In the latter case, it would be a question of fact as to whether the carrier had fulfilled the general obligation, by allowing the tin to remain on the dock, under the circumstances, and one of the facts to be considered would have been whether the goods could have been sent to a warehouse before Sunday, if giving reasonable time to remove required that they should remain ready for delivery through the business hours of Saturday.

On the terms of the bill of lading, this view should be sustained. It said, in substance, that unless the goods are taken from alongside immediately after the vessel is ready to discharge, “ they will ” be “ deposited in the warehouse provided for that purpose.” The agreement to deposit in a warehouse has the quality of a contract, and the promise must be fulfilled. This construction is reasonable in view of what would have been the duty of the defendants, if the special clause had not been made. That duty would have been, to provide a proper place of deposit for the goods, he not being at liberty to leave them on a wharf (Redmund v. S. N. Y. & P. Steam Co., 46 N. Y. 583). It intended only to state a general rule, but not to intimate that if no contract had been made, that it would under any circumstances or the facts of this particular case be a breach of duty, to leave goods properly guarded on a wharf, with special protection.

The bill of lading in express and unconditional terms shuts in the parties to a special mode of performance of the duty; viz., the carrier is to place the goods in a warehouse.

The judge found, therefore, and correctly, that the goods being on the wharf was a breach of defendant’s contract, and their then having been stolen is not an excuse for the non-performance of the obligation to deliver.

The other exceptions have been examined, but on the law as above stated they were either not material or were not well taken.

The judgment and order appealed from are affirmed with costs.

Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    EDWARD MARCUS, Plaintiff and Respondent, v. JOHN THORNTON, et al., Defendants and Appellants.
    Sale and "warranty of quality.—By sample.—When effected
    BY A BROKER.
    It is a general rule, that when a contract of sale has been effected and concluded by parties through the agency of a broker, that the broker’s memorandum of sale, and the bought and sold notes, constitute the evidence of the contract, and no parol evidence is admissible to vary the same. But when (as in this case) it is a contested question of fact whether or not the sale was effected and concluded through the agency of a broker, that question should be submitted to the jury.
    It is only in cases of executory contracts, and without warranty, that a purchaser accepting goods and retaining them, without notice to the seller or offering to return them within a reasonable time, is held to waive all defects as to their quality, &c. (see cases cited in opinion of court).
    In case of a warranty, the purchaser is not bound to accept what he did not buy; and if he does accept, he has a right to recoup the damages arising from a breach of the warranty (Day v. Pool, 53 W. Y. 416; Downce v. Dowe, 57 Id. 16).

      Before Curtis, Cli. J., and Sedgwick and Freedman, JJ.

      Decided January, 6, 1879.
    The action was brought to recover the value of one hundred and two cases of Japan ear-shells, sold and delivered to the defendants at the agreed price of sixteen cents per pound.
    The answer admits the purchase, but avers that the defendants were induced to make it by reason of the fraudulent representation of the plaintiff’s agent, and upon the express warranty that the bulk not examined was like some cases which were opened and inspected ; that the shells contained in the cases thus opened and inspected were sound, but that the bulk was subsequently found to be worm-eaten and of greatly inferior value.
    Upon the trial testimony offered by the defendants to show the unsoundness of the bulk and its inferior value was excluded, and a verdict directed for the plaintiff, to which rulings the defendants duly excepted.
    " The defendants requested the court to submit the case to the jury. The court denied.the request, and defendants again excepted.
    Judgment having been entered, the defendants appealed.

      Coo7c & Sc7mc7c, attorneys, and Peter CooTc, of counsel, for appellants.

      LauterbacTi & Spingarn, attorneys, and S. Spirigarn, of counsel, for respondent.
   By the Court.—Freedman, J.

It is true, as a general rule, that when a contract of sale is effected by a broker, the memorandum of sale and the bought and sold notes are the evidence of the contract, and that when there is no variance between said notes, no parol evidence is admissible to vary the contract.

But the first question in this case is, whether the contract of sale was effected by the broker, or made independently of him by and between the parties themselves.

Upon the trial the testimony introduced by the defense showed:

That the plaintiff is a resident of London, but carries on business in the city of New York, as a merchant,, through Charles Loewenthal, his agent. The defendants also are merchants, having a store in the city of New York, and another in the city of Philadelphia. In response to a letter written by Loewenthal, dated November 7, 1877, advising the arrival of the shells and requesting an early call, John Thornton, Jr., one of the defendants, called at plaintiff’s office in the city of New York at about half, past ten o’clock in the morning of November 8. Loewenthal then and there said to him that Mr. Ostheimer of Philadelphia, a competitor in business with defendants, had called that morning and would be back at twelve o’clock to take the shells, if the defendants did not desire them; but that he had been put off until that time, because Loewenthal desired to give defendants the preference. Thornton being desirous of purchasing, Loewenthal suggested that he should at once go down to the wharf to look at the shells. Thornton assented to this proposition, and Abecasis, a broker, was sent for by Loewenthal to accompany Thornton, which he did. The shells were found on the dock piled up in cases, and Abecasis hired a cooper to open some of them. Only six cases, selected by Abecasis and thus opened, were examined, and then Thornton inquired whether the balance would run the same. Abecasis assured him that they would, whereupon Thornton returned to the office to complete the trade with Loewenthal before Ostheimer should come back. While there some further discussion ensued between Loewenthal and Thornton, and the broker, who had also returned, and Thornton again asked whether all the shells ran like those that had been shown on the dock. The case does not show precisely to whom this question was addressed or what the answer was, but the defendants, on the direction of a verdict against them, are entitled to the inference that the question was addressed to Loewenthal, and that Thornton received from him an answer which was accepted as satisfactory. The bargain was then finally concluded that the defendants should take the one hundred and two cases of shells at the price of sixteen cents per pound, and that the goods should be sent partly to Philadelphia and partly to defendant’s store in New York. Now, Thornton swears that he concluded the bargain with Loewenthal, and not with the broker ; that there was no necessity for a broker; and that the broker’s note was not received until two days thereafter. Loewenthal himself, when called as a witness for the defense, testified that he sold the shells. It also sufficiently appears, or at least the case is susceptible of the inference, that the defendants received the broker’s note and discovered the fact that the shells did not correspond in quality with those which had been exhibited on the dock, at about the same time, and that thereupon they immediately repudiated their purchase on the ground of such want of correspondence, and offered to return the goods, which offer was declined by the plaintiff.

Though, therefore, the broker had testified that the sale had been made by him, yet in view of the facts as stated, the defendants had a right to have the following questions submitted to the jury:

1. Whether the contract was made with Loewenthal or the broker;

2. Whether, as made, it contained a warranty; and,

3. Whether they were induced by any false representation or warranty to refrain from examining more than the six cases, ■ and to conclude the bargain which they did make, without such further examination.

It is only in cases of executory contracts and without warranty, where, after a reasonable time and opportunity for the examination of the goods has been given, the purchaser fails to return them or to notify the seller to take them back, that the purchaser, by accepting and retaining them, is held to have waived all defects in their quality (Reed v. Randall, 29 N. Y. 358 ; Gaylord Manufacturing Co. v. Allen, 53 Id. 515; Weaver v. Wisner, 51 Barb. 638; Leavenworth v. Parker, 52 Id. 132; Sprague v. Blake, 20 Wend. 64).

But in case of a warranty, hot only is the purchaser not bound to accept what he did not buy, but if he does accept, his right to recoup the damages arising from a breach of the warranty survives the acceptance (Day v. Pool, 52 N. Y. 416 ; Dounce v. Dowe, 57 Id. 16).

From the foregoing premises it follows that the ruling under which the defendants were held bound absolutely by the broker’s note, constituted error. The evidence as to bad quality and inferior value, which was excluded by the court, should have been admitted, and the case should have been submitted to the jury in its different aspects under proper instructions.

The judgment must be reversed, and a new trial ordered, with costs to appellants to abide the event.

Sedgwick, J., concurred.


text:
    ANDREW J. PARKER, Plaintiff, v. WILLIAM C. CONNER, Sheriff, &c., Defendant.
    Personal property, unlawful taking and detention of.—Execution.—Sheriff’s sale.—Facts in mitigation of damages.
    Liability incurred by a sheriff in the taking and detention of property cannot be discharged by any act of his own, without the assent of the owner of the property. A return of the property, without such assent, will not. release the sheriff, nor will a subsequent- levy and sale under process in favor of the sheriff afford him any protection as against the first unlawful taking (See numerous cases cited in the opinion of the court).
    But, as an exception to the above general rule, it is equally well-settled, that if the property be taken again from the trespasser, without his agency or connivance, and by the act of a . third person and the operation of law, and applied to the owner’s use, although without the latter’s consent, the jury, in estimating the damages of the owner, may take into consideration, as mitigation of the same, such a taking of the property and its application to the owner’s use and benefit. Such application is held to be equivalent, to a return of the property, and its acceptance by the owner (See cases cited by the court).
    It is not the fact of the subsequent seizure that gives this defense, but that it has been seized under such circumstances that the owner has had or could have the benefit of it (Bull ®. Liney, 48 N. T. 6).
    It matters not whether such mitigating circumstances occurred before or after the commencement of plaintiff’s action (Dailey ®. Crowley, 5 Lam. 301).
    In this case the sheriff took the plaintiff’s property from his possession, at One hundred and twenty-first street, New York, June 30, 1874, removed the same to Duane street, and on July 32, 1874, sold-the same to one McLoughlin for $225, assuming to take and sell the property under an execution in his hands, against one John Halloran, from whom the plaintiff had previously acquired title to the property. On August 12, 1874, the sheriff received an execution against the plaintiff in favor of one Percy, and thereupon he levied upon the same property under and by virtue of this last execution, and sold the same again to the said McLoughlin, the former purchaser, for the sum of $o.

      Held, 1st. That this was not a fair sale, as against the rights of plaintiff that had then accrued, because the value of the property had been seriously affected by its removal and former sale to McLoughlin.
    2d. That even upon the assumption that this second levy and sale was a taking of the property by a third person within the meaning of the exception stated, that the defendant did not prove an amount exceeding $5 in mitigation, under the rulings in the case of Ward ». Benner (31 IIow, 411), wherein it was held that the measure of damages was the actual value of the property, at the time of the illegal taking, less the amount which it produced at the sale.
    Before Curtis, Ck. J., and Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Tke action was brougkt against the defendant as sheriff for unlawfully taking and carrying away the contents of a certain printing establishment owned by the plaintiff, and of the value of $9,500.
    The defendant justified—
    1. Under three several executions against the property • of one John Halloran, under which the property was originally seized ; and
    2. Under an execution against the plaintiff himself, under which his right, title and interest in and to said property were sold.
    Upon the trial it appeared : That on June 30, 1874, the whole property was taken from the plaintiff’s possession by the defendant under an execution for $1,031.03 against John Halloran.
    On July 1, 1874, a judgment was entered in the marine court against John Halloran, defendant, in favor of John W. Brown, plaintiff, for $1,125.23, and execulion issued thereon on the same day to the defendant as sheriff.
    On July 8, 1874, another judgment was entered in the marine court against John Halloran, defendant, in favor of Edward Sheey, plaintiff, for $536.95, and execution issued thereon on the same day to the defendant as sheriff.
    On July 22, 1874, the defendant sold the property under the first execution as the property of said Halloran; and such sale, according to defendant’s return, did not realize more than enough to pay the expenses of the sale and the sheriff’s fees.
    On July 30, 1874, the plaintiff commenced this action.
    On August 1, 1874, an execution for $2,000 against the plaintiff in this action, at the suit of one John Percy, was received by the defendant, under which he claimed to have again levied upon said property, and that he sold the right, title and interest of the plaintiff therein for the sum of $5, and applied the same to the payment of his fees.
    The execution last referred to was against plaintiff’s objection and exception, received in evidence as matter in mitigation of plaintiff’s damages.
    Upon the close of the whole case the court directed a verdict in favor of the plaintiff for $55, being the interest upon the value of the property, as proved, during the period of its detention in the hands of the sheriff after its original taking up to the time of the levy under the Percy execution, to which direction the plaintiff duly excepted.
    Plaintiff requested the court to direct the jury to find a verdict for the plaintiff for the value of the property, or to submit the question of damages to the jury, which requests were refused, and the plaintiff duly excepted.
    The jury then rendered a verdict for the plaintiff for $55, as directed by the court, and the court directed the exceptions taken by the plaintiff to be heard in the first instance at the general term, and the judgment to be in the meantime suspended.

      George Wilcox, attorney for plaintiff.

      Vanderpoel, Green & Quming, attorneys; Almon Goodwin, of counsel, for defendant.
   By the Court.—Freedman, J.

The court below held that the defendant wrongfully, and without authority of law, seized upon and removed plaintiff’s goods, and that consequently the plaintiff was entitled to recover for the wrongful taking and detention ; but that the amount of such recovery must be nominal, because the appropriation of the property to the use, benefit and advantage of the plaintiff under the Percy execution was an appropriation under valid legal process against him, and hence in judgment of law was equivalent to its return and acceptance by him.

The case having been disposed of solely upon this theory, and plaintiff’s exceptions having been ordered to be heard in the first instance at the general term, the only question presented for the consideration of this court is : What effect, if any, does the Percy execution, and the proceedings thereunder, have upon the defendant’s liability in this action %

The action, as brought, if for the unlawful taking and the detention of plaintiff’s property, and for that the liability of the defendant as a trespasser, and the rights of the plaintiff against him, were complete on June 30, 1874. Defendant’s liability then was coextensive with the value of the property taken. From that liability he could not discharge himself by any act of his own without the assent of the plaintiff. Even a return of the property without an acceptance by the plaintiff, would not have had the effect of releasing him. So if he had procured the property to be afterwards seized and sold under process in his own favor, such proceeding would have afforded him no protection in any form. This is the-settled law of this State, however different the rule may be elsewhere (Wehle v. Butler, 61 N. Y. 245 ; affi’g S. C., 35 N. Y. Sup’r Ct. 1; Hanmer v. Wilsey, 17 Wend. 91; Otis v. Jones, 21 Id. 394; Lyon v. Yates, 52 Barb. 237; Peak v. Lemon, 1 Lans. 295 ; Livermore v. Northrup, 44 N. Y. 107 ; Tiffany v. Lord, 65 Id. 310).

As an exception, however, it is equally well settled, that whenever it appears that the property was taken again from the trespasser without any agency or connivance on his part, and applied to the owner’s use, although without the latter’s consent, by the act of a third person and the operation of law, -the jury may take the taking of the goods by such third party, and the application that was made to plaintiff’s use, into the account in estimati,ng plaintiff’s damages. In such a case the application to plaintiff’s use is held to be equivalent to a return of the property and its acceptance by the owner. But in every such instance it must appear that the subsequent taking by such third party was -independent of any agency on the part of the defendant, and that there was in point of fact an application to plaintiff’s use (Higgins v. Whitney, 24 Wend. 379 ; Sherry v. Schuyler, 2 Hill, 204; Ball v. Liney, 44 Barb. 505 ; Ward v. Benson, 31 How. 411).

When these facts do appear, the wrong-doer can set up this subsequent seizure and application not as an entire defense, but in mitigation of damages, for the reason that it would be unjust for the owner to recover the valúe óf the property after he has thus had the benefit of it. It is not the fact of the seizure that gives the defense, but that it has been seized under such circumstances that the owner has had, or could have, the benefit of it (Ball v. Liney, 48 N. Y. 6).

And whenever the defendant, under his answer, is entitled to rely upon any such matter in mitigation, it seems that it makes no difference whether the mitigating circumstances occurred before or after the commencement of plaintiff’s action (Dailey v. Crowley, 5 Lans. 301).

The law being as stated, and there having been no return of the property and an acceptance by the plaintiff, it only remains to be seen whether the defendant has brought himself within the exception as stated above.

According to his own showing he took the property from plaintiff’s possession in One Hundred and Twenty-first street, near Third avenue, on June 30,1874, under an execution for $1,031.03 against one John Halloran, from whom plaintiff had acquired title; he removed the property to a storeroom at No. 62 Duane street; and at said place, on July 22, 1874, he sold all the right, title, and interest of Halloran in and to the said property to one G-eorge H. McLoughlin for the sum of $225, which sum, as he says, was no more than enough to pay the expenses of such sale and his own fees. This being so, the other two executions against Halloran require no notice or consideration whatever. The sale made as described conferred upon McLoughlin as purchaser not only all the right, title, and interest which Halloran had in the property, if any, but also all the rights as to remedies of the creditor named in the execution under which the sale took place (Sands v. Hildreth, 14 Johns. 493 ; Porter v. Parmley, 52 N. Y. 185).

Having thus entangled plaintiff’s property by his own wrongful act, it is difficult to perceive how, without a surrender of the property and a waiver of his rights by McLoughlin, a fair application in fact to plaintiff’s use could subsequently be made of it. True, the defendant claims, that when on the 1st of August following he received the execution against the plaintiff and in favor of Percy, he again levied upon the property, and that he subsequently sold all the right, title, and interest of the plaintiff therein. But this sale, as against plaintiff’s rights then accrued, was not a fair sale, because the value of the property had been, and •then was, seriously affected by the claim of McLoughlin to it under and by virtue of the preceding sale. This is plainly apparent from the fact that this property, consisting of one steam engine, four printing-presses, with the necessary shafting and belting, and a lot of type and a great many other articles making up a printing establishment, and which it had taken the defendant several days to remove from plaintiff’s premises, was knocked down for the paltry sum of $5, "and that even that bid could be obtained from no other person than George H. McLoughlin, to whom the property had already been once sold.

Even upon the assumption, therefore, that the levy under the Percy execution was a taking of the property by a third person within the meaning of the exception above stated, and that the proceeds arising from the sale under said execution constituted, by operation of law, an application of the property to plaintiff’s use, the defendant did not prove mitigation beyond the sum of $5, The wuong-doer, and not the wronged party, should suffer the direct consequences of the wrong, Ward v. Benson (31 How. 411), is authority upon this point. In that case the general term of the supreme court -held that the rule of damages in such a case is the actual value of the property at the time of the taking, less the amount which it produced at the sale.

Atwood v. Lynch (37 N. Y. Sup’r Ct. 5), does not help the defendant. In that case the sheriff, while making an. illegal levy under one execution, had in his hands another and valid one against the same property, which bound the property, and one of the questions litigated was whether the sheriff could sell without an actual levy under the valid execution. The complaint alleged nothing beyond a naked trespass on June 24, 1864, which was the day of the sale. As the evidence was clear that at that time the sheriff not only held the goods in question, but also an execution against the plaintiff, which bound the goods, and as there was no evidence showing the final application of the proceeds of the sale, it was held that the plaintiff could not maintain trespass pure and simple as of the day of sale, and that is the extent of the decision.

Nor can the defendant derive any benefit from that class of cases which hold that where an officer of the law, as, for instance, a collector of duties or of taxes, holding valid process, seizes the property against which it is directed, in an illegal manner, or, though the seizure be regular, makes an illegal sale, the measure of damages is the value of the goods less the amount of the duty, or the tax which he was entitled to collect. They are not in point here.

There are other questions in the cáse which, in order to facilitate the re-trial of the issues, might properly be discussed now, if the whole of the evidence adduced at the trial were before us. But as the case, as settled and printed, contains only so much of the evidence as bears upon the points already considered, we shall not allude to them.

Plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered with costs to plaintiff to abide the event.

Sedgwick, J., concurred. ,


text:
    HENRY VOLKENING, Plaintiff and Appellant, v. HENRY P. DE GRAAF, et al., Defendants and Respondents.
    Account stated.—Dismissal of complaint.
    To make an account stated there must be a mutual agreement, a meeting of minds between the parties to it, as to the allowance or disallowance of their respective claims, and there must be proof of assent to the account as rendered, and to the balance appearing to be due (Stenton «. Jerome, 54 N. T. 480; Lockwood ®. Thorne, 18 Id. 285).
    Held, that in this case all the essential elements of an account stated seem to be wanting.

      Also held, that plaintiff's rights, if any he had, were not enforceable in this form of action; and he, not having stated his true cause of action, and having failed to prove the one alleged, the complaint was properly dismissed. It was not a variance, but a failure of proof (Code, § 171; Gode of Ovo. Pro. §541; Bernard®. Seligman, 54 N. T. 661; Barnes ®. Quigley, 59 Id. 265).
    Before Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal from judgment dismissing plaintiff’s complaint.

      Nelson Smith & Leavitt, attorneys, and Nelson Smith, of counsel, for appellant.

      James It. Marvin, attorney, and counsel, for respondents.
   By the Court.—Freedman, J.

This action is brought upon an account alleged to have been stated between Derleth Brothers, plaintiff’s assignors, and the defendants, on November 28, 1874.

Prior to that time, Derleth Brothers had had numer.ous dealings with, the defendants. For years they had made for, and sold to the defendants, furniture, and office and store fixtures, and the course of dealing had been as follows:

When they delivered goods, they sent a bill, and when the correctness of the bill was ascertained, the defendant’s bookkeeper entered the amount of it in a certain pass-book, kept between the parties, to the credit of Derleth Brothers. As payments were made to the latter, they were also entered in the said passbook. From time to time, the account kept in this manner was balanced.

There was only one transaction out of the ordinary course of dealings, and that rested upon a separate and distinct agreement. It constituted a sort of joint adventure between Derleth Brothers and the defendants, to fit up a certain saloon for one John H. McKinley, who was to pay a certain proportion in cash, and the balance in notes, to be secured by a chattel mortgage. It was agreed between Derleth Brothers and the defendants, that the work should be proportioned between them, but that all bills should be rendered to McKinley in the name of the defendants, and that Derleth Brothers would take their proportion of the cash and of the notes, when received by defendants from McKinley, and moreover, to take the notes without recourse. Under this special agreement, Derleth Brothers furnished about §3,000 worth of goods. By arrangement between the parties to this agreement, and as a matter of convenience, these goods were placed to the credit of Derleth Brothers in the said pass-book, but distinguished from the other goods by being marked “McKinley,” and in the bills rendered by Derleth Brothers to the defendants, they were distinguished in like manner. But although thus kept distinguished, the amount of said goods was carried forward in the account as it ran along, and as from time to time it was balanced in the pass-book. It is the last balance thus appearing in the pass-book, that the plaintiff, as assignee of Derleth Brothers, seeks to recover in this action.

The evidence is undisputed that the amount thus sued for constitutes a balance due from McKinley on account of the goods furnished by Derleth Brothers. McKinley, after having made some payments in cash, of which Derleth Brothers received their share, refused to give notes pursuant to his contract. Indeed, he defrauded both the defendants and Derleth Brothers. All other claims which ever existed between the defendants and Derleth Brothers have been adjusted and settled up.

Upon this state of facts I fail to see how the plaintiff can maintain the action in the form in which he brought it. All the essential elements of an account stated seem to be wanting. To make an account stated there must be a mutual agreement, a meeting of minds between the parties to it, as to the allowance or disallowance of their respective claims, and there must be proof of assent to the account as rendered and to the balance appearing to be due (Stenton v. Jerome, 54 N. Y. 480 ; Lockwood v. Thorne, 18 Id. 285).

The defendants never agreed to pay Derleth Brothers cash for the McKinley goods, nor is there any proof that they ever in any way acknowledged a liability on their part to pay for them in some way as for goods sold and delivered to themselves. On the contrary, as to the goods in dispute Derleth Brothers •were to run a certain risk. The balance shown by the pass-book, therefore, is not a balance for which the defendants are directly liable, and no such liability can be created in this case by a mere legal fiction.

Whatever, therefore, the precise rights of Derleth Brothers under the special contract may be, and it is .not necessary to determine them here, they cannot be enforced in this form of action. If the defendants have,been guilty of a breach of the special contract on their part, or of fraud, misconduct or negligence in the performance thereof, whereby the rights of Derleth Brothers were prejudiced, they may be held to answer in an action founded upon such breach or offense. But in any event the plaintiff is bound to allege his true cause of action. Not having done this, and having failed to prove the one alleged, the complaint was properly dismissed. It was not a variance, but a failure of proof (Code, § 171; Code of Civ. Pro. § 541; Bernard v. Seligman, 54 N. Y. 661; Barnes v. Quigley, 59 Id. 265).

The judgment should be affirmed with costs.

Sedgwick, J., concurred.


author: Per Curiam.

text:
    ALEXIS GODILLOT, Plaintiff and Respondent, v. EDWARD C. HAZARD, et al., Defendants and Appellants.
    Trade-marks.—Injunction.
    Every manufacturer and every person for whom goods are manufactured, has a right to distinguish the goods he manufactures, or sells, by a peculiar mark or device, that they may be known as his in the market, and he is entitled to protection of the same, irrespective of the fact that similar goods are manufactured or sold by others (See cases cited in opinion).

      Held also, by the court below, that this right extends to a vendor who merely sells, and has no direct relation to the manufacturers.
    A trade-mark may consist of anything not already appropriated; marks, forms, symbols, which designate the true origin or ownership of the article; this, although the words adopted are in common use. It cannot, however, consist of anything which merely denotes the name or quality. There can be no right to the use of mere generic words.
    The language of Lord Justice Gifford, in Lee «. Haley (39 Law Journal, 380), approved: “ The principle upon which the cases go is not that there is a property in the word, but that it is a fraud upon a person who has established a trade, ” &c., &c.

      Held, in this case, that the- injunction sought to be obtained in the action should be granted.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ.

      Decided January 6, 1879.
    Appeal by defendant from judgment enjoining Mm from using a certain trade-mark, &c.
    The action was tried before the Hon. Claudius L. Monell, at a special term, April, 1875.
    The complaint alleged that the plaintiff, for more than three years, had been engaged in putting up in packages of about one pound each, and importing, an article known as “ Julienne,” compounded of various vegetables, for making Julienne soup, upon which package he had placed a label or trade-mark devised by him, a copy, of which is annexed to the complaint.
    The device consists of the words “ Conserves Alimentaires,” under which is the coat-of-arms of the city of Paris ; upon either side of the monogram a “ C ” in a circle, and underneath the words “Paris” and “ Julienne,” with directions for preparing for use and using.
    The device adopted by the defendants is in all -respects like the plaintiff’s device, except the monogram is “F. Gr.” In size, type, color, and appearance, the two devices are entirely alike.
    The answer alleged that “Julienne” was a generic name, and the mixture of vegetables used in making julienne soup was prepared and imported into the United States long prior to its' being put up and imported by the plaintiff, and was previously well known to the general public by the name of “ Julienne.”
    Upon the pleading and affidavits, a motion was made and granted to dissolve the preliminary injunction, but no appeal was taken.
    On the trial the plaintiff testified that the article was put up for him in Paris, and that it has not before been prepared or put up in the same manner. There was evidence on the part of the defendants that the article known as “ Julienne” was prepared and put up by several other manufacturers in France, and was imported into this country.
    One of the defendants testified that the defendant caused the label they used to be printed in Paris by their agent, having previously seen the plaintiff’s label on packages of the “ Julienne” they had purchased from him.
    The court found the fact that the plaintiff first adopted, and uses the label claimed as his trade-mark, that the defendants’ label was calculated to deceive the customers of the plaintiff to his damage.
    The following opinion was delivered at special term :
    Mo well, Ch. J.—The case made by the evi-, dence upon the trial of this action so far varies it from the case presented upon the motion to vacate the injunction, that I am not embarrassed by the decision then made.
    It now appears that the article sold by the plaintiff was prepared-and put up for him in Paris by the firm of Hollier & Co., and although there is evidence that a similar article, designated “Julienne,” is prepared and put up at other establishments in France, yet it is clearly established that the “Julienne” imported and sold by the plaintiff is prepared and put up expressly, for him.

      It is not, therefore, in my opinion, material whether other manufacturers prepare the same article in the same manner and of the same material, or that it is imported into the United States and sold by other persons.
    There is no such property in the secret of manufacture that it can be protected; any one may prepare “ Julienne ” of the same ingredients that enters into the composition of the plaintiff’s article, and he may designate it “ Julienne,” and sell it as such. The property and right to protection is in the device or symbol which is invented and adopted to designate the goods to be sold, and not in the article which is manufactured and sold.
    The right to protection is not exclusively in the manufacture. The person for whom the goods are manufactured (Amoskeag M’f’g Co. v. Spear, 2 Sand/. 599 ; Walton v. Crawley, 3 Blatch/. 440) and the vendor -who sells and who may have no direct relation to the manufacturer, has such right (Partridge ». Menck, 2 Barb. Oh. 103 ; Taylor r. Carpenter, 2 Sand/. Oh. 614).
    Even, therefore, assuming that the article imported by the plaintiff is an article of common manufacture in France, and is imported generally into this country, and sold under the name of “ Julienne,” that does not deprive the plaintiff of his property in the device which he has invented as a trade-mark, and which he has put upon the packages, for the purpose of designating the article he sells.
    In Amoskeag Manufacturing Company r. Spear {supra), the learned Justice Duer says (p. 605):— “ Every manufacturer and every merchant for whom goods are manufactured has an unquestionable right to distinguish the goods he manufactures or sells by a peculiar mark or device, in order that they may be known as his in the market;” and in Partridge v. Menck {supra), the chancellor says (p. 103): “ The question is not whether the complainant was the original inventor or proprietor of the article made by him, and upon which he now puts his trade-mark, nor whether the article made and sold by the defendant is of the same quality and value.” And Beardsley, J., says, in Tyler v. Carpenter (supra) : “It is immaterial that the complainants were not admitted to be the manufacturers of the article. It was conceded that they were the vendors, and engaged in the sale of it.” In Lee v. Haley (39 Law Jour. 284) the plaintiffs were dealers in coal—a natural product, in the general reach of all dealers. Yet the court protected the good-will of a business represented by a particular style of address.
    It sufficiently appears from the evidence that the plaintiff is in a position to entitle him to adopt a trademark to designate the goods in question. They were manufactured exclusively for him, and, within the authorities I have cited, he, as the vendor, had a right to establish a reputation for the quality of the article he sold, and perpetuate it by a device which would denote its origin and ownership.
    If he has done so, he should be protected in its exclusive use.
    A trade-mark may consist of anything, marks, forms, symbols, which designate the true origin or ownership of the article. It cannot consist of anything which merely denotes the name or quality.
    There can be no right to the use of mere generic words. Hence “Julienne,” designating the manufactured article, does not denote origin or ownership, and like “ Schnapps” (Wolfe v. Goulard, 18 How. Pr. 64) and ‘ • Club House Gin ’ ’ (Corwin v. Daly, 7 Bosw. 222), it is a word used merely to designate the article or its quality.
    The words “ Conserves Alimentaire,” which are alike applicable to every description of preserved or dessicated food, do not relate exclusively to the name or the quality of - any particular preparation, and are, ‘therefore, the subject of an exclusive appropriation in connection with words which did not denote the name or quality, and in that sense they may be regarded as designating the true origin or ownership of the manufacturers.
    The adoption of words in common use as a trademark was sanctioned in Matsell v. Flanagan (2 Abb. Jf. 8. 459), where the “ United States Police Gazette” was held to be an- infringement of the plaintiff’s right to the use of the “National Police Gazette and in Messerole ». Tynberg (4 Id. 410), the word, “Bismark,” as a trade-mark for a particular description of paper collars, was protected; and in Newman v. Alvord (49 Barb. 588), a stronger case, “ Akron Cement,” which was the name of the place where the cement was made, was brought within the class of words entitled to be appropriated as a trade-mark. These several cases are apprpved in Billet v. Oarlier (11 Abb. N. 8. 186), inhere the manufacture of a syrup from the juice of the pomegranate was called “Grenadine” and “Grenade Syrup.” In that casee it appeared that “Grenade” was a French word signifying pomegranate, and that '“ Grenade Syrup ” was sold in France under that name. It was, however, held that the plaintiff, by the adoption of the words, has acquired a property in their use which the courts would protect.
    Again, the copy of the coat-of-arms of the city of Paris, when in connection or combination with other-marks, words or devices, not denoting name or quality, will cover a property in it which will prevent its use in the same connection or combination by another person., ; In this case, however, none of the words or devices are isolated or disconnected with each other. They form in combination a whole, supplemented by the plaintiff’s monogram, together, as is claimed, constitute his trade-mark.

      It is not necessary in this case to designate any particular words or symbols as constituting the plaintiff’s trade-mark ; although I am of opinion that the words “ Conserves Alimentaires ” on the coat-of-arms of the city of Paris as a symbol, could, if it was necessary, be separately regarded as such ; but the combination of all the words and symbols, which the plaintiff has put upon his label, entitles him to be protected against the appropriation and use of such combination by the defendants.
    It has now come to be well settled, that the adoption of any words or device not already in use, and not denoting the name or quality of the article, will constitute a trade-mark ; and they so far become property that the courts will protect the owner against any usurpation or interference ; and for the well-grounded reason that a person who, by his skill and industry, has acquired a good reputation for the commodity he manufactures or sells, ought to be allowed to reap the fruits of it. This is forcibly illustrated in Williams v. Johnson (2 Bosw. 1), when the trade-mark was “ Genuine Yankee Soap,” words of common use, but as they did not denote the name or quality of the manufacture, the plaintiff’s property in them was fully sustained.
    Independently of this, the label, as ,a whole, is entitled to protection. The courts have gone to the extent of bringing within its protection not the trade-mark alone, but the packages, cases, and handbills (Williams v. Spence, 25 How. Pr. 366). In Cook v. Stark-weather (13 Abb. N. 8. 392), the court held, that the package, case, or vessel, in which the commodity is put," is prepared in a peculiar or novel manner, constituted it so much a part of the trade-mark as to entitle it to participate in the protection which would be given to the trade-mark itself.
    Upon the whole case, therefore, I am satisfied that the plaintiff has such property in the label he has adopted to designate the goods he offers for sale, that he should be protected in its exclusive use. He has, through his skill and industry, gained a reputation in the community for the excellence of the article he imports, and he ought to be permitted to reap the profits of it.
    I am led to my conclusion in this case the more readily for the reason that I can find ho excuse or justification for the defendants’ acts. One of them testified that they had frequently purchased packages of the plaintiff’s “ Julienne,” and had sent to Paris directions to have their label prepared. It was prepared in ail respects like the plaintiff’s, except the insignificant change in the monogram.
    That it was a willful invasion of the plaintiff’s rights there can be no possible doubt. The defendants were at liberty to manufacture “ Julienne,” or have it manufactured for them, of the same materials and in the same manner, and to import and sell it in this market under the same name, and the plaintiff would have had no legal cause of complaint. 'With that undisputed right they were not content, but they meant to also trade upon the plaintiff’s reputation, and profit by it.
    In Lee v. Haley {ubi supra), Lord Justice Gifford says: “The principle upon which the cases go is not that there is ' property in the word, but that it iá a fraud upon a person who has established a trade, and carries it on under a given name, that some other person should assume the same name.” And the Chancellor in Partridge v. Monck {ubi supra), also says: “ That, having appropriated to himself a particular label or sign or trade-mark, indicating to those who wish to give him their patronage, that the article is manufactured or sold by him or by his authority, or that he carries on his business at a particular place, he is entitled to protection against any person who attempts to pirate upon, the good-will of the complainant’s friends or customers, or of the patrons of his trade or business, by sailing under his flag, without his authority or consent.”
    And, again, in Billet v. Carlier (ubi supra), Mr. Justice Pratt says: “The defendants can have no possible motive in using these words (Grenade Syrup), except to avail themselves of the reputation the plaintiff’s article has gained under this name.”
    The plaintiff must have judgment perpetually, enjoining the defendants from using the trade-mark, with costs.

      Hugh Porter, attorney, and of counsel, for appellant,—Cited:
    Newman v. Alvord, 51 N. Y. 189; Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599 ; Partridge v. Menck, 2 Barb. Ch. 101; Lemion v. Ganton, 2 E. D. Smith, 343 ; Wolfe v. Barnett, 24 La. An. 97; Del. and Hudson Canal Co. v. Wallace, 13 Wall. 311 (U. S. Supreme Court, 1871); Ferguson v. Davol Mills, 2 Brew. 314, and Cox Am. Trademark Cases, 516 ; Caninchal v. Latimer, 5 N. Y. Weekly Dig. 46 ; Osgood v. Allen, 1 Holmes, 185; Congress and Empire Spring Co. v. High Rock Congress Spring Co., 45 N. Y. 291 ; Dixon Crucible Co. v. Guggenheim, 2 Brews. 321; Upton Trademarks, 25-30 ; Leather Cloth Co. v. Am. Leather Cloth Co., 11 H. Ld. Cas. 523; Piddin v. Howe, 8 Sim. 477; Partridge v. Menck, 1 How. App. Cas. 547; Wolfe v. Burke, 56 N. Y. 115; Palmer v. Harris, 60 Penn. 156; Hobbs v. Francis, 19 How. Pr. 567 ; Fetridge v. Wells, 4 Abb. Pr. 144.

      Nelson Smith & Leavitt, attorneys, and Nelson Smith, of counsel, for respondent,—Cited:
    Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599; Walton v. Crawley, 3 Blatchf. 440 ; Taylor v. Carpenter, 2 Sandf. Ch. 603, 614; Same v. Same, 11 Paige, 292 ; Wotherspoon v. Currie, L. R. 5 H. L. 508; Partridge v. Mauk, Cox Am. Trademark Cas. 72 [This reporter gives the case as decided by Y.-Ch. Sanford, Ch. Walworth, and the court of appeals]; Morrison v. Case, 9 Blatchf. 548; Coleman v. Crump, 70 N. Y. 573 ; Brie v. Larband, decided in the French court of Itiom, and reported in Brown on Trademarks; Raggett v. Findlater, L. R. 17 Eq. Cas. 36; McAndrew v. Boss, 4 De Gex, J. & S. 380; Ford v. Forrester, L. R. 7 Ch. App. 70; Broadhurst v. Barlow, decided by Vice-Chancellor Wickens, in 1872, 11 Alb. L. J., 169, where the case is reviewed; Knott v. Morgan, 2 Keen, 213 ; Seixo v. Provezende, L. R. 1 Ch. App. 198 ; Croft v. Day, 7 Beavan, 85 ; Edelsten v. Edelsten, 1 De Gex, J. & S. 185; Hirst v. Denham, L. R. 14 Eq. 542; Braham v. Bustard, 1 Hemming & M. 447.
    The decision of the general term was as follows:
   Per Curiam.

The judgment appealed from should be affirmed with costs upon the opinion delivered at special term.


author: By the Court.—Curtis, Ch. J.

text:
    ABRAM DU BOIS, Plaintiff and Respondent, v. ALFRED B. DARLING and CHARLES W. GRISWOLD, Defendants and Appellants.
    I. Easements.
    1. Covenant against erecting a building within a certain distance of the front line of premises, and erecting certain specified buildings, among them a livery stable or private stable.
    (a) BREACH OF, WHAT IS.
    1. The erection, on the greater part of the reserved space, of a porch 16 feet 8 inches wide, extending to the front line of the premises, with bay-windows on each side, having their foundations on the ground, and rising therefrom five stories high, and approaching within a few inches to the said front, the same constituting a part of a large building erected, as to this part on the reserved space, and as to the residue on land in the rear, is such breach.
    (6) ABANDONMENT, OR WAIVER, OF COVENANT, OR ESTOPPEL AGAINST ENFORCING.
    1. What will not amount to.
    (a) Private Stable. The bare fact that the common grantor (one of the parties to the original agreement) of the plaintiff and defendant, maintained a private stable on the lot subsequently conveyed tt> defendant, on which he erected the porch and bay-windows above referred to, and which adjoined the lots previously conveyed to plaintiff, and that the stable remained thereon until removed by defendant, without any interference by plaintiff, will not.
    (&) Bay-window on another lot. The mere standing by and seeing an owner of another lot, subject to the same easement, build, without objection, a bay-window overhanging the restricted space, will not.
    (c) Iron balcony built by plaintiff. The fact that the plaintiff himself attached an iron balcony to the front of his house, projecting 3 feet 4 inches over the reserved space, said attachment not being intended as an evasion of the covenant, or made otherwise than with a belief of a right to do so, will not.
    3. What will amount to.
    Acts of plaintiff which are of a character to lead, and have led others to treat the servient estate as if free from the servitude, will, as to those who have acted on the faith thereby induced, that the servitude was abandoned.
    II. Injunction.
    1. MANDATORY.

      (a) Restoration on things to their former condition may be effected thereby.
    Before Curtis, Ch. J., Sedgwick and Freedman, JJ„

      Decided March 3, 1879.

      This action was brought to enforce a covenant between two owners of different adjoining pieces of land, situated on the south side of Thirtieth street, between Broadway and Fifth avenue, in'the city of New York. The complaint asks, that the defendants be required and commanded to take down and remove a certain porch and bay-windows, or such portions of their building, as project beyond a line drawn parallel with the southerly side of Thirtieth street, distant six feet southerly therefrom ; and also that the defendants be perpetually enjoined and restrained, Jrom erecting any part of the said building upon, or which shall overreach or overhang, any part of the defendants’ lands, which lie north of said line.
    Both pieces of land were originally owned by Ann Greer, who, with her husband, in 1868, conveyed to the plaintiff his parcel. The defendants’ parcel was first conveyed by said Ann Greer (widow), to Charles L. Anthony, in 1872, and by his executors to the defendants, in 1875. Before the above conveyances were executed, one James W. Anderson was the owner of certain other lands, adjacent to plaintiff’s, on the south side of Thirtieth street, between Broadway and Fifth avenue. Ann Greer and James W. Anderson, as such owners, on the first day of May, 1868, entered into an agreement 'with mutual covenants in writing, whereby among other things, it was mutually covenanted and agreed, “ that they will not at any time hereafter erect any building upon said lands, within six feet of the south side of Thirtieth street,” and further, “ that the covenants and restrictions herein contained, and the right to enforce the same, are attached to and run with the land hereinbefore described, and that any of the parties hereto, and also persons claiming any estate or interest in the said lands under them, or any or either of them, shall" have the right to restrain any person or persons violating this agreement by any proper proceedings or action at law, or in equity, and to recover damages for the violation of the same.” All the deeds were duly recorded and were made subject to and contained the covenants and restrictions contained in the original agreement entered into between Ann Grreer and her husband and James W. Anderson.
    In 1868 the plaintiff erected a dwelling-house on his premises, at an expense of about $50,000, and built the front wall upon a line six feet south of the southerly line of Thirtieth street, according to the restrictions in the agreement.
    In May, 1877, the defendants began to erect a large flat or apartment house on their three most westerly lots and next adjoining the plaintiff’s premises on the east, about seventy-five feet front, and extending to the rear of the lots, and five stories high.'
    The front wall of the building is placed on the same line as the plaintiff’s house. The front windows of the east and west wings of the house consist of bay-windows, and by the plans were to be carried from the foundations to the top of the house. The foundations rested upon the ground, and projected beyond the front line of plaintiff’s building, five feet four inches.
    A porch was erected in the front of the building between the bay-windows, extending six feet beyond the main.line of the building and beyond the main line of the plaintiff’s house. These projections cover about thirty-five or forty feet of the entire front reserved by covenant in front of the building.
    At the time of the commencement of this suit, the bay-windows were carried nearly up to the top of the first story above the basement, but have not been carried higher since the suit was brought.
    There was a judgment at special term, requiring the defendants to remove such portions of the porch and bay-windows as are built beyond the line six feet south of Thirtieth street, and restraining them from erecting any building upon the strip of land between this line and the street. From this judgment the defendants appealed to the general term.

      Horace Barnard, attorney, and of counsel, for apr pellants,
    As to the maintenance of the stable extinguishing the whole easement, cited: Washb. on Easements, 58, 59, 632, 657, 658 ; Washb. on R. P. 84; Aet. Dock Co. v. Leavitt, 54 N. Y. 35 ; Corning v. Glould, 16 Wend. 531, 538; White’s Bank v. Nichols, 64 N. Y. 74. As to plaintiff’s balcony extinguishing the easement,—cited: Lattimer v. Livermore, N. Y. Weeldy Dig. May to June, 1878 ; Corning v. Troy Nail & Iron Factory, 40 N. Y. 203 ; Roper v. Williams, Turner & R. 22. As to estoppel by acquiescence,—cited: Washb. on Easements, 661 ; Roper v. Williams, supra; Arnold v. Common, 50 Penn. 361 ; Corning v. Troy Nail & Iron Company, 40 N. Y. 203.

      Hutchins <6 Platt, attorneys, and Waldo Hutchins, of counsel, for respondent, urgedI.
    The owners of land may, by mutual covenants, regulate the use of their respective properties, which covenants may run with the land, and bind all subsequent purchasers; and any consideration, however slight, will support this covenant in law and equity.
    II. There is no rule which prevents the court from granting a mandatory injunction where the injury sought to be restrained has been completed before the filing of the bill. A mandatory order is nothing more than a decree of specific performance, which is every day’s practice in a court of equity, and which is seldom denied unless the remedy at law is perfectly adequate {Kerr on Injunctions, marginal paging, 231-233, and cases cited).
    III. There is a distinction between cases depending on nuisance and those depending on contract. “Where there is a contract, the court cannot attach the same importance to the question, whether the damage is serious or not, as it does in mere cases of nuisance, but the main point is, whether the contract has been broken” (Attorney-General v. Mid Kent Railway Company, L. R. 3 Ch. App. 100-104).
    IY. Though a court of equity has no jurisdiction to compel the performance of a positive act tending to alter the existing state of things, such as the removal of a work already executed, it may, by framing the order in an indirect form, compel a defendant to restore things to their former condition, and so effectuate the same results as would be obtained by ordering a positive act to be done. The order when framed in such a form is called a mandatory injunction. If the act complained of is a breach of an express stipulation, the injunction will issue, notwithstanding the amount of inconvenience to the other party (Kerr on Inj. marginal, 231; Isenburg v. East India House, &c., Company, 33 L. J. Ch. 392 ; Durell v. Pritchard, 1 L. R. Ch. App. 244; Low v. Inness, 10 Jur. N. S. 1037; Martin v. Headon, 2 L. R. Eq. 425).
    Y. This order has been granted and the principle recognized in the courts of our State, in Massachusetts, as also in other States (Corning v. Troy, &c., Factory, 40 N. Y. 191; Linzee v. Mixter, 101 Mass. 512; Rogers’ Locomotive Works v. Erie R. R. Company, 5 C. E. Green, 379).
   By the Court.—Curtis, Ch. J.

The defendants were obligated by the covenant in their deed, not to erect any building upon the lots conveyed to them, within six feet of the south side of Thirtieth street. In violation of this obligation they commenced the erection of a structure five stories in height, with bay-windows and a porch rising from their foundation on the ground the entire height of the edifice, occupying the greater part of the land reserved on the south side of Thirtieth street. The porch was sixteen feet and eight inches in width, extending to the line of Thirtieth street, and the bay-windows approaching it within a few inches.

The plaintiff owning the adjoining house, west of this building, subject to the same restriction, and built in accordance with it, seeks by injunction to prevent this infringement upon the enjoyment of his premises. It is evident that his complaint, that the light, air, and view which he had been accustomed to enjoy on his own premises would be materially diminished by defendant’s building, is well founded.

No question is raised as to the right of the original grantors of the lots to make the covenant in question, for their mutual benefit and that of their grantees.

The defendants insist that there has been an abandonment by.the plaintiff of the restriction. That the Greers, parties to the original agreement, made May 25, 1868, containing this restriction, and at that time the owners of both the plaintiff’s lot and the. defendants’ adjoining four lots, maintained or permitted a private stable on the lots afterwards conveyed to the defendants, and that the plaintiff assented thereto, and allowed it to remain for nine years, until removed by the defendants. __ The evidence fails to show that this stable was one of the class prohibited by the restriction, and even if it had been, there is no evidence of any assent or allowance by the plaintiff that it should remain there. The vested rights of the plaintiff, under this agreement, would not be impaired by reason of the Greers violating one of its provisions, even if ‘they had done so.

The defendants claim that the plaintiff when build-his own house, No. 16 West Thirtieth street, allowed Dr. Bumstead to build a bay-window at No. 22 West Thirtieth, street, overhanging a portion of the restricted six feet, which operated as an abandonment of the agreement. The evidence fails to show any permission or license from the plaintiff to Dr. Bumstead of this nature. The plaintiff testified that he did not make any objection to it. He may have regarded it as not conflicting with the-agreement, or as of no importance. Even if this act of Dr. Bumstead had been a violation of the agreement, the plaintiff, by no act or acquiescence in respect to it, has been shown to have abandoned the restriction.

The claim of the defendants, that the plaintiff saw that they were building in this way, upon the reserved portion of their lots, and suffered them to proceed, and is thereby estopped by his own acts and laches, is not sustained by the evidence, but on the contrary, he appears to have notified the agents of the defendants of his rights, and to have proceeded with all reasonable diligence under the circumstances to enforce them.

The defendants, as a further ground, state the plaintiff has himself built a balcony on the front of his house, overhanging the reserved premises, and does not come into court with clean hands. The proofs show that he has an iron balcony attached to the front of his house, and projecting three feet and four inches over the reservation. There is nothing to show that this construction was an evasion of the covenant, or that it was placed there otherwise than with the belief that he had a right to do so. It has been held that where, under similar circumstances, a balcony was erected, not intended as a mere evasion of the covenant, projecting from the front wall of a house, it was not a violation of a covenant of the same description (Perkins v. Coddington, 4 Robt. 647). The plaintiff is shown to have purchased a lot and built a very valuable house, relying upon this agreement as contributing to his enjoyment of it. He paid an enhanced price as a consideration for the land in consequence. He comes into a court of equity seeking to be protected in such enjoyment. No bad faith is shown on his part, and no intent to evade or abandon the restriction. He has not placed himself by his own acts without the pale of equity, and in view of what the courts have held, is entitled to relief.

The evidence fails to establish that the defendants acted upon belief that the plaintiff intended to abandon his right to the enjoyment of the reservation (Bank of Buffalo v. Nichols, 64 N. Y. 74; Tallmadge v. E. R. Bank, 26 Id. 105; Trustees v. Lynch, 70 Id. 449).

The judgment appealed from should be affirmed, with costs.

Sedgwick and Freedman, JJ., concurred.