author: Bocees, J.:

text:
    RICHARDSON H. THURMAN, Appellant, v. HENRY W. MOSHER, Respondent.

      Fraudulent representations—not alleged in complaint — cannot be proved at trial — deposition—requisites of—memoranda—when admissible.

    This action was brought to recover for alleged false and fraudulent representations, made by the defendant, whereby the plaintiff sustained damage, the complaint containing particular, specific charges of fraud. At the trial, plaintiff offered to prove false and fraudulent representations, made by the defendant, other than those alleged in the complaint. Held, that the evidence was properly excluded ; that the defendant was not called upon to meet other charges than those of which he had notice in the pleadings.
    Where the charge to be substantiated is, that the intent with which the act was done, was fraudulent, any transaction or statement of a fraudulent character, bearing on the motive of the party accused, becomes competent evidence. But where the charge is, that the party did a specific fraudulent act, or made a certain false statement, which gave a right of action, the act or statement must be proved substantially as alleged in the pleading, and proof of other fraudulent transactions is irrelevant and improper.
    The defendant was examined by the plaintiff, as a witness, before the trial, but his examination was neither read over to, nor signed by him; nor was it certified by the judge before whom it was taken, nor filed with the clerk. At the trial, the stenographer having been called, and having testified that the paper produced was the evidence as he took it down, and that he believed it to be correct, the plaintiff offered to read it in evidence. Reid, that it was properly excluded., That it was not admissible as a deposition, because the requirements of the statute had not been complied with; nor was it admissible as a memorandum, for the reason that it did not appear but that the witness could have stated what the defendant swore to on his examination, from recollection, or, after refreshing his memory, by reading over the paper. Butler v. Benson, 1 Barb., 526; Lawrence v. Barker, 5 Wend., 801; RuffY. Bennett, 6 N. Y., 887, examined and limited. The decisions as to the introduction of memoranda in evidence, collated.
    The plaintiff was entitled to prove the statements and admissions, made by the defendant at the time of his examination, but the paper itself was not, under the circumstances, admissible.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury.
    This action was brought by the plaintiff against the defendant, Mosher, and one Edward Tracy, to recover for alleged false and fraudulent representations, made by the defendant, Mosher, to the plaintiff concerning the stock and property of the Heydrick Oil Company, a corporation organized under the laws of the State of Pennsylvania, by which representations, the plaintiff alleged that he was induced to transfer to the defendant, Tracy, certain lots of land in the city of Brooklyn, of the value of $3,000, and to take from said Tracy, as consideration therefor, 300 shares of the stock of said Heydrick Oil Company, at ten dollars per share, and that said stock was in fact worthless, and the plaintiff suffered damage to the amount of $3,000 and interest; that the defendant, Tracy, well knew of the representations made by the defendant, Mosher, and that the same were false; and that the defendants combined and confederated together, to deceive and defraud the plaintiff for the benefit of said Tracy.
    Before the action was brought to trial, the plaintiff discontinued as against the defendant, Tracy, and proceeded against the defendant, Mosher.
    The action was brought to trial at the Rensselaer circuit, in December, 1872, when evidence was given by both parties, bearing on the issues presented by the pleadings, and a verdict was rendered by the jury in favor of the defendant; judgment was thereupon rendered, and the plaintiff appealed to the General Term.
    The questions raised on the appeal, relate entirely to the exclusion of evidence offered by the plaintiff on the trial. The plaintiff offered to show alleged false and fraudulent representations, other than those charged and counted on in the complaint. The court excluded the evidence, and the plaintiff excepted.
    The plaintiff also offered to read in evidence the examination of the defendant, taken before trial, in this case, under an order made pursuant to section 391 of the Code, which examination was not completed, nor was the testimony, so taken, signed by the party, certified by the officer, or filed with the clerk. The plaintiff’s counsel admitted that the testimony or deposition was not signed or filed, so as to entitle it to be read as evidence without proving it, but offered to read it in evidence as an admission of the defendant. The defendant objected to it as immaterial and incompetent ; that it was not properly authenticated, was not read over to the defendant or signed by him, and was never filed. The court sustained the objection, and the plaintiff excepted to such ruling.

      E. F. Bullard, for the appellant.
    The court erred' in rejecting evidence of the fraudulent representations. (Amsden v. Manchester, 40 Barb., 158; Meyer v. Goedel, 31 How., 456; Hall v. Naylor, 18 N. Y., 588; Hier v. Grant, 47 id., 278; Hunter v. H. R. Iron Co., 20 Barb., 493, 501; Bliss v. Cottle, 32 id., 322; Fullerton v. Dalton, 58 id., 236.)
    .£sé& Gowen, for the respondent.
    The evidence of false representations, other than those set forth in the complaint, was properly excluded. (Gray v. Palmer, 2 Robertson, 500 ; Wells v. Jewett, 11 How., 242; Barber v. Morgan, 51 Barb., 116 ; Cary v. Hotailing, 1 Hill, 311.) The examination of the defendant, before trial, was properly excluded. (Barry v. Galvin, 37 How., 310; Greene v. Herder, 7 Rob., 461.)
   Bocees, J.:

There was.no error, I think, in the exclusion of the alleged false and fraudulent representations made by the defendants, other than those counted on in the complaint. The action was based on particular, specified charges and allegations of fraud; on those the plaintiff counted, and on those he must rely. The defendant was required to answer those, and none other. He was not called upon to meet other charges and statements than those of which he had notice in the pleading.

There is an obvious distinction between those cases where specific charges of fraud are made 'the basis of a recovery, and those where a fraudulent intent constitutes the gravamen of action; as when the question is, whether the vendee of goods procured them with the fraudulent intent not to pay for them. A sale and delivery of goods to a vendee, who purchases with the preconceived design not to pay for them, is fraudulent; and, on an issue as to such intent, it is competent, with a view to show the quo animo, to prove that the party accused was engaged in other similar frauds, at or about the same time. Then, such other frauds become evidence in support of the charge of fraudulent .purpose and intent. The evidence bears on the motive of the party, which, if fraudulent, of itself makes the sale and delivery void. When the charge to be substantiated, is, that the intent with which the act was done, was fraudulent, any transaction or statement of a fraudulent character, bearing on the motive of the party accused, becomes competent evidence. But, when the charge is, that the party did a specific, fraudulent act, or made a certain false statement, which gave a right of action, the act or statement must be proved, substantially, as alleged in the pleading, and proof of other fraudulent transactions is irrelevant and improper. The offers to prove false representations and fraudulent transactions against the defendant, other than those counted on. in the complaint, were properly rejected.

The offer of the plaintiff to read the examination of the defendant, taken "pursuant to section 391 of the Code, is now to be considered. It is conceded that the examination could not be read as evidence in the case, like the deposition of a party taken de bene esse, for several reasons. It was not complete; was not read over to, and signed by the party examined; was not certified by the officer; nor had it been filed. Had these requirements been duly complied with, the examination would have been evidence, of itself, to be used on the trial by either party, at his option. There was no statute which authorized it to be read in evidence, in the form in which it was presented. Therefore, as a deposition, and of itself, it was incompetent evidence. This was conceded by the plaintiff’s counsel. He said: “I admit it has never been signed and filed, so we could read it without proving it.” But he offered “ to read the evidence of said defendant, so taken, against him, as an admission in the case.” Now, I am unable to discover any legal objection to proof, by the plaintiff, of what the defendant stated on the occasion of his examination. The plaintiff had a right to prove his statements and admissions, bearing on the issues, whenever - and wherever uttered. That he made them under oath and in a legal proceeding, affords no reason why they might not be proved against him. So it was undoubtedly competent for the plaintiff to call the stenographer who took down the defendant’s examination, or any other person who heard him speak, and prove what he then stated. The stenographer was called in this case, and testified that he took down the examination, which he then produced or held in his hand; said it was the evidence as he took it, and that he believed it to be correct. The plaintiff’s counsel then offered to read the examination in evidence, when the objections were interposed, that it was incompetent, immaterial and not properly authenticated; that is, that the paper itself was incompetent evidence. Now, the written paper was not evidence ipso facto, but was a memorandum made by the witness which might be used, if necessary, in aid of his recollection. The question to the witness should have been, What did the defendant state on that examination ? If he could answer without recourse to the memorandum, he should do so. To adopt the language of Woodruff, J., in Youngs. Catlett: “There would he no propriety in putting into' the hands of a witness a paper for the purpose of refreshing his recollection, when his memory is already fresh, and his recollection full on the subject of inquiry,” and, the learned judge adds, in substance, that to do so under such, circumstances would be improper. If unable to answer without recourse to the paper, he might resort to it in aid- of his memory. But the right to recur to it, in aid of his recollection, would not make the memorandum evidence, of itself. It was said in Butler v. Benson, that a witness might use a memorandum to refresh his recollection, but that it was not evidence to go to the jury, even though he should swear that he thought it correct; and it is added, per Hand, J.: “ He may refresh his memory, and then, if his recollection recalls the transaction, that recollection is testimony to go to the jury. * * It is not sufficient that his mind recurs to the memorandum, and that he himself believes that true.” This case followed substantially the decision in Lawrence v. Barker, and both of these cases were cited with approval, in Huff v. Bennett. The rule laid down in these cases, would absolutely exclude the reading of a memorandum in evidence, under all circumstances. It would permit a paper to be used by the witness to refresh his memory, yet, after recurring to it, he would be required to speak to the facts from his recollection.

But the rule has been so'far modified, as to permit a memorandum to be read in evidence, under certain circumstances. The rule, as settled in these and other recent cases, is to the effect, that a memorandum, of a fact., material to the issue, made by a witness at or near the time when the fact occurred, may be read in evidence to the jury. 1st. If the witness can swear' that it was made correctly ; and, 2d. That he cannot remember the fact, except as he finds it stated in the paper. So it was held in Russell v. The H. R. R. R. Co., that a memorandum, made by a living witness contemporaneously with the facts to which it relates, is admissible in evidence only as auxiliary to, and not as a substitute for, his oral testimony; and, that it must appear that there is a necessity for its introduction, on account of the inability of the witness to recollect the facts after refreshing his memory by the writing.

In this case, Judge Selden says, that it is an indispensable preliminary to the introduction of such memorandum, that it should appear that the witness is unable, with the aid of the memorandum, to speak from memory, as to the facts; and, further, that it is the duty of the court, in all such cases, to see, before receiving the evidence, that there is a necessity for its introduction, on account of the inability of the witness to recollect the facts. Thus it seems that the memorandum is inadmissible, unless the witness states that he has no recollection of the facts which are the subject of inquiry, aside from the written paper. The following cases, in addition to those above cited, bear on this point. In Russell v. The H. R. R. R. Co., the memorandum was admitted in evidence against objection, and a new trial was granted on the ground, that, for aught that appeared, the witness had a distinct recollection of all the facts, independent of the written paper.

Now, in the case at bar, the witness stated that he took the minutes, as he believed, correctly; but he did not swear to any want of memory as to what the party testified to; did not say that he could not give what the party then stated, except from the minutes; did not show that it was at all necessary for him to recur to them in aid, even, of his recollection. For aught that appeared, he could have stated what the defendant then swore to, without any aid from the minutes. If he could have done so, there was no occasion to refer to them.

It seems, therefore, that the paper, of itself, was incompetent as evidence, and the offer to read it to the jury was properly overruled.

Had the offer been this: to prove by the witness what the defendant stated or testified to, on the occasion of his examination, its exclusion would, I think, have been error. But the offer was to prove facts, competent to be proved, by incompetent evidence. That was inadmissible. Both the facts to be proved, and the evidence offered to establish them, must be competent or the offer should be rejected.

The above considerations embrace the principal grounds of error presented for examination; and, as we think, the only grounds of alleged error which require particular notice.

Miller, P. J., and Boakdman, J., concurred.

Judgment affirmed, with costs.

       11 How., 242 ; 51 Barb., 116; 2 Rob., 500.

       37 How., 310.

       6 Duer, 441.

       1 Barb., 526.

         5 Wend., 801.

       6 N. Y., 837.

       Halsey v. Sinsebaugh, 15 N. Y., 485; Russell v. The H. R. R. R. Co., 17 id., 134; Guy v. Mead, 22 id., 462; McCormick v. Penn. Cent. R. R. Co., 49 id., 303, 315.

        Supra, 17 N. Y., 134.

       Meacham v. Pell, 51 Barb., 65, 67; Brown v. Jones, 46 id., 400, 410, 411; Woods v. De Figaniere, 25 How. Pr., 522-526; Stuart v. Binsse, 7 Bosw., 195-197; Wheeler v. Ruckman, 1 Robt., 408-411.


source: Caselaw Access Project

license: Public Domain

text:
    BENJAMIN SNYDER, Respondent, v. ELIAS C. DAVIS, Appellant.
    Exemption— Chapter 157, Laws 1843—when property specified in, is exempt.

    All the articles specified in chapter 157, oí the Laws of 1843, are liable to seizure and sale on an execution issued to collect the purchase-money of any one of the articles therein specified, or oí any other property, which was, at the time of the passage of said act, exempt from execution.
    The case of Sickox v. Fay, 36 Barb., 9, not followed; Smith v. Slade, 57 Barb., 637, distinguished.
    Appeal from a judgment in favor of the defendant, entered upon the tidal of the cause at circuit, where the plaintiff was non-suited. The facts are stated in the opinion.

      H. B. Guslmey, for the appellant.

      Peter G. Webster, for the respondent.
   Bocees, J.:

The question in this case arises under the exemption act of 1842, amended in 1859, and again in 1866. The sale was made by the defendant, as constable, under an execution against the plaintiff, issued on a judgment rendered for the purchase-money of a cow; which cow was exempt property under the provisions of the Revised Statutes of 1830. The property sold was a horse, harness, wagon and sleigh; and it is conceded that such property was exempt under the act of 1842, and the amendments thereof, unless it comes within the proviso of the last clause, which reads as follows: “Provided that such exemption shall not extend to any execution issued on a demand for the purchase-money of such furniture, tools, * * * or the articles now enumerated by law.” Now, the act of 1842 extended the exemption declared by the Revised Statutes, to certain other property therein specified (to the property sold in this case), subject to the proviso above stated. This proviso was, that this act of 1842, should be ineffectual as to any execution issued on a judgment for the purchase-money of the property thereby exempted, or for the purchase-money of “the articles now enumerated by law.” The cow, for the purchase-money of which the judgment was recovered, was one of those articles. Therefore, by force of the proviso, the act of 1842 was ineffectual as to the exemption here claimed. The language of the proviso is specific and clear; it provides that such exemption shall not extend to any execution issued on a demand for the purchase-money of “the articles now enumerated by law.” Those articles were, “ all sheep to the number of ten, * * * one cow, two swine,” etc.

Now, the property here sold was not exempt by the Revised Statutes of 1830, nor by the act of 1842 giving effect to its proviso, inasmuch as the execution, on which the sale was had, issued “ on a demand for the purchase-money” of an article there enumerated by law as exempt; and, in the absence of any law exempting the plaintiff’s property, it was liable to seizure and sale on execution issued on a judgment rendered against him. This exposition of the exemption act of 1842 and its amendments, has sanction also in Cole v. Stevens, where Selden, J., remarks that “ the natural reading of the clause seems clearly to be that the exemption allowed by the section itself, shall not be available against any execution issued to collect the purchase-money of any exempt property whatever.” I am of the opinion that the seizure and sale of the plaintiff’s property, in this case, was justified in law; and the nonsuit was, consequently, right.

I am not unmindful of the decision in Hickox v. Fay, which is relied on by the appellant’s counsel, where it was held that an execution issued on a judgment, recovered on a demand for the purchase-money of exempt property, must follow the identical property sold, as if the party selling retained a specific lien thereon for the price.” But this decision was overruled, or rather was.not followed, in Craft v. Curtiss, and has not been regarded as sound. The question here under consideration, was not before the court, in Smith v. Slade.

The nonsuit in this case was right, and the judgment should be affirmed, with costs.

Miller, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.

       Laws of 1842, chap. 157 ; 1859, chap. 134; 1866, chap. 782.

       2 R. S., 367, § 33, sub. 4.

       Id.

       9 Barb., 676.

       See also 10 Barb., 91.

       36 Barb., 9.

       25 How., 163.

       57 Barb., 637; see also 14 How., 519, and 3 Denio, 52.


author: Miller, P. J.:

text:
    SAMUEL D. HOPKINS and others, Plaintiffs, v. MARY L. HOPKINS and DRUZILLA HOPKINS, Defendants.
    Will— Construction of—Remainder — when rested.

    Susan Hopkins died, leaving a will, by which she devised the use and income of all her estate, both real and personal, to two of her daughters, so long as they should live and remain unmarried, and upon their death or marriage, she devised all the rest, residue and remainder of her estate to her children, naming them, or to the survivor or survivors of them ; and, “in case any of my children die, having issue, then I will and direct that the child or children of such son or daughter of mine, shall receive the same as the parent of such grandchild would have received if living.” Held, that the children named in the will, took vested estates in remainder, immediately upon the death of the testatrix.
    Case submitted on a statement of facts, agreed upon by the parties, under section 372 of the Code.
    Susan Hopkins died, prior to May, 1873, leaving a last will and testament, which was admitted to probate, May 8, 1873, and letters ■ testamentary issued thereon to Samuel D. Hopkins and Travis Hopkins, the executors therein named. The will contained, among others, the following provisions: “ I give, devise and bequeath to my two daughters Druzilla Hopkins and Mary L. Hopkins, during their natural lives, if they remain unmarried, the use and income of all my real and personal estate of every name and nature. In case either of my daughters should marry, then I will and direct the daughter unmarried, shall have the use and annual income of all my real and personal estate of every name and nature, during her natural life, or so long as she shall remain unmarried, my design being to provide a comfortable home for my unmarried daughters, so long as they live. In the event of the death or marriage of my said daughters, Druzilla and Mary L., I give, devise and bequeath the rest, residue and remainder of my estate, to my children, Travis Hopkins, ¡R. Anne Pease, H. Jane Bishop, Anor H. Potter, John Q. Hopkins, Druzilla Hopkins, Mary L. Hopkins and Samuel D. Hopkins, or to the survivor or survivors of them. In case any of my children die, having issue, then I will and direct that the child or children of such son or daughter of mine, shall receive the same as the parent of such grandchild would have received if living—that is, the portion that would have belonged to the parent, if living.”
    The plaintiffs, Travis Hopkins, Samuel D. Hopkins, Anne Pease, Hannah J. Bishop and Anor Potter, made a contract with the defendants, to sell and convey all their interest in the lands of the testatrix, devised by the will, on the 29th of November, 1873. The deed was to be delivered on the 19th of December, 1873, at which time, the deed, having been properly executed, was tendered to the defendants. They declined to accept the same, for the reason that, as they claimed, the grantors could not and did not convey by said deed, the lands according to the contract, viz., a perfect title in fee simple absolute, including the interest that the defendants acquired under the will of said Susan Hopkins.

      J. JDe Motte Smith, for the plaintiffs.

      F. M. Finch, for the respondents.
   Miller, P. J.:

The question to be determined under the testatrix’s will, is, whether the devise to her children, after the termination of the devise to her two daughters, was a vested or a contingent remainder. By the will, she devises to the two daughters, Druzilla and Mary, an estate during their lives, provided they remain unmarried, and upon the termination of this estate, the remainder to the children named in the will, or the survivor or survivors of them. Did the will stop here, there would be no difficulty in construing it, as such children, or the survivor or survivors, would most clearly be entitled to a vested estate. "But the clause following, which provides that if any of the children die, having issue, that such issue shall receive the same as the parent would have received -if living, raises a question which is not entirely free from embarrassment. There are certain legal rules, however, applicable to cases of this character, which must lead to a rational interpretation of the instrument now to be construed. It is provided by statute, that estates are vested, when there is a person in being who would have an immediate right to the possession of lands, upon the ceasing of the intermediate or precedent estate, and contingent, whilst the person to whom, or the event upon which they are limited to take effect, remains uncertain. Chancellor Kent says: “An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment.’.’ I think that the will of the testatrix gave an estate to the children last named in the same, which entitled them to the possession of the land, upon the determination of the estate of the two daughters who were first entitled .to an estate therein, and that it was an existing right to enjoy the same upon the marriage or death of said daughters.

Where real estate was devised to one for life, and after his death, to three others, or to the survivor or survivors of them, their or his heirs or assigns forever, it was held that the remainder-men take a vested interest at the death of the testator, and that the words of •survivorship refer to the death of the testator, and not to the death of the tenant for life, unless, from other parts of the will, it be manifest that the intent of the testator was otherwise. The case at bar bears a striking analogy to the one cited, and the language is of the same import, with the exception that the words, “heirs or assigns forever/’ are not employed. This, I think, does not alter the meaning, and it is equally plain and explicit without the use of these words. The devise, beyond any question, gave to the children of the deceased, who were named, and living at the time of the testatrix’s death, a remainder in the' estate, which then became vested in them. The subsequent provision for the issue of such as might die, was, in my opinion, intended to provide for the disposition of the share or shares of such child or children, as might not be living at the time of the testatrix’s decease. It was in fact equivalent to a provision for the heirs or assigns Of the deceased child or children. Without this clause, I am inclined to think that the .portion of such one or more, as might die without issue, would go to the survivor or survivors, and thus prevent the issue of the deceased devisee from participating, in any way, in the final division of the estate. This could never have been intended, .and the testatrix sought to, and did, I think, avoid any such result by the provision now considered; thus making an equal distribution among her children and grandchildren and harmonizing the entire plan and structure of the will. The whole will related to, and had in view, such of her lawful descendants, who were named, as might be living upon the decease of the testatrix. If we regard the last clause as an independent provision, I think we must arrive at the same conclusion; for it is after all a devise to the heirs-at-law of the deceased. The grandchildren, in case of the decease of the children, would inherit according to law, and a devise to the children, and in case of death, to the grandchildren, amounts to, and really is, a devise to the person and his or her lawful, heirs.

The intention is a leading element to be considered in the construction of wills, and it is hardly to be assumed that the testatrix designed to make no provision for the grandchildren, in case of the death of any child or children before her decease, and only sought to secure the final distribution to such of them as should survive their parents, who died after her decease.

Another rule may be invoked in support of the construction stated, and that is: that the law favors the vesting of estates, and, unless the intention is unequivocally expressed to the contrary, it will not be imputed to the testatrix. It cannot be said, in the case at bar, that any intention whatever is expressed by the testatrix, that the estate devised shall not be vested, and every intendment is, as we have seen, in a contrary direction. As was said by the chancellor in Moore v. Lyons, A remainder is not to be considered as contingent in any case, where it may be construed to be vested consistently with the intention of the testator.” It is apparent that it is entirely in accordance with the object, purpose and design of the testatrix in this case, that the remainder devised, was not considered as dependent, in any way, upon contingencies, but vested, upon the testatrix’s decease.

The result of the discussion had, leads to the conclusion that the plaintiffs had a vested remainder in fee, to the real estate mentioned in the deed, to the extent of their several shares; that they had lawful authority to" execute and deliver a deed of conveyance of the same; and that the defendants, the purchasers, would thereby acquire an absolute estate in fee, to the interest conveyed.

This, I think, with the estate which the defendants had acquired by virtue of the will, would vest them with an estate in fee simple, of the whole premises.

The defendants, therefore, should be required to perform the contract, and a judgment must be ordered accordingly, with costs.

Present—Miller, P. J., Bockes and Boaedman, JJ.

Judgment for plaintiffs, with costs.

       1 R. S., 723, § 13.

       4 Kent Com., 202.

       Moore v. Lyons, 25 Wend., 119.

       McKinstry v. Sanders, 2 N. Y. [S. C.] R., 181, 186; citing Manice v. Manice, 43 N. Y., 368.

        Supra, at page 144.


author: Boakdman, J.:

text:
    JOHN H. WHITE, Respondent, v. JAMES E. COULTER and AMELIA ANN COULTER, Appellants.

      Sale on foreclosure—when set aside — Special Term—place of holding—Ids pen-dens—-affidavit of filing — effect of defect in — Referee — nomination of, by one paniy—Wife of mortgagor—failure to serve summons on—effect of—Execution — direction on — when sufficient.

    A motion to set aside a sale on foreclosure, is addressed to the discretion of the court below, and, in the absence of abuse of such discretion, the order of the Special Term is not appealable.
    Where property, the market value of which, on the day of sale, was not above $40,000, was bid in by the mortgagee for $35,000, the mortgagor having notice that he would not bid above that for it, and there was no pretense of fraud, misconduct or surprise, a resale should not be granted.
    Where an action was noticed for trial, at a Special Term to be held at the chambers of a justice of the Supreme Court, in the town hall, and, at the appointed time and place, the action was, by the consent of the parties, tried before another justice, at an adjourned Special Term then held by him in another room of the town hall; held, that if there was any irregularity in so doing, it was waived by the appearance and consent of the defendant’s attorney.
    The appointment, by the court, of a referee, nominated by one party and approved by the other, is no violation of rule 73, and no irregularity.
    Where a judgment of foreclosure, in an action tried before the court without a jury, was entered within four days of the filing of the decision ; held, that the defendant, by consenting to the entry and subsequently allowing the sale to be confirmed, waived the irregularity, if any existed.
    This provision of the Code is so far directory, that a neglect of it will not be considered, in the absence of wrong or injury to the defendant. (Per Boardhan, J.)
    Where the affidavit of filing of notice of pendency of action is defective, but proper notice has, in fact, been duly filed, and no objection is made, by defendant’s attorney, to the sufficiency of the proof, the judgment is not thereby rendered void; it is a mere irregularity, which may be disregarded or amended, under sections 173,176 of the Code, in the absence of any injury to defendant.
    The notice of Us pendens is made by statute, constructive notice to persons claiming under the defendants in the action, but not parties to it; as their rights only are affected, it is reasonable that they only should be allowed to take advantage of the omission to file it.
    Whether, in an action to foreclose a purchase-money mortgage, service of the summons upon the husband is not good as to the wife, and whether she will not be bound by the judgment entered therein, quere.

    But, if such service does not bind the wife, then her rights are not foreclosed, and if she shall survive her husband, whereby her inchoate right of dower would ripen into an absolute right in the equity of redemption, she may then take proceedings to enforce her rights, and will not be bound by a judgment, to which, she was not a party. But such non-service furnishes no ground for an application to set aside the judgment, during the lifetime of the husband.
    An execution was issued and delivered to the sheriff of Saratoga county, in the usual form, except that, on the inside, it was directed “To the sheriff of the county of county; ” on the outside, under the title of the action, were the words, “ execution to Saratoga county,” with the usual directions to levy, etc. Held, that its direction to the sheriff of Saratoga county sufficiently appeared.
    This is an appeal by the defendants from an order of the Special Term, made on the 18th day of November, 1873, denying defendant’s motion to set aside the judgment of foreclosure and the sale had pursuant thereto in the above-entitled action, with ten dollars costs to plaintiff.
    By the defendant’s notice of motion, dated March 18, 1873, an order was asked, setting aside such judgment and for a new trial, on such terms as might be just, and also on irregularities, as follows :
    1. That the trial was irregular as to time and place, and the court had no jurisdiction, for that reason, of the parties or cause of action, the attorney for defendant J. E. 0., having no authority to waive the objection.
    2. That the affidavit of filing of notice of lis pendens was defective.
    3. That the appointment of the referee to sell, at plaintiff’s request, was irregular and void, and the fee retained by him was excessive.
    4. That the direction to sell in one parcel was improper.
    5. Defendant J. E. C., asks leave to serve an amended answer.
    6. Defendant A. A. Coulter, asks that all proceedings as to her, be set aside, because she was not served with the summons, and never appeared or authorized any one to appear for her in the action.
    By the second notice of motion, dated March 24, 1873, the following additional irregularities were alleged:
    7. That the judgment was entered irregularly, within four days after the decision of the judge who tried the action.
    8. That there was no reference to inquire whether the premises should not be sold in parcels, as required by the rules.
    By the third notice of motion, it was asked that the judgment for deficiency, $18,911.94, be vacated, for the following reasons and irregularities, to wit
    9. That it was prematurely entered, as in No. 7, ante.

    10. That it was entered before the end of eight days after the filing of the report of sale. .
    And the execution upon said judgment was asked to be set aside:
    11. Because, it was prematurely issued, before the end of eight days after the filing of referee’s report of sale.
    12. Because not directed to the sheriff of Saratoga county, or any other sheriff.
    13. Also, that the judgment, sale and all proceedings be set aside, ofi account of the fraud of plaintiff, as alleged.
    All errors, defects and irregularities, disclosed by the moving papers, are insisted upon in favor of the motion, and such further and other relief as shall be just, is asked for. ■
    The action was noticed for trial at a regular Special Term, duly advertised and held at the town hall, in the village of Saratoga Springs, by Hr. Justice Bockes, on the 9th day of July, 1872. On that day, another Special Term was also held, in another room of the town hall, by Hr. Justice James, he having adjourned the Ballston Special Term of Hay, to that time and place. The action was, at the suggestion of Hr. Justice Bockes, the defendant’s attorney consenting thereto, tried before Hr. Justice James.
    Upon hearing of these motions, they were denied, and defendants appeal from the order denying the same. The facts are stated in the opinion.

      A. Pond, for the appellant.
    The judgment should be set aside as the summons was not served on defendant, A. A. Coulter. (Bean v. Mather, 1 Daly, 440; Williams v. Van Valkenburg, 16 How., 150; Bulkley v. Bulkley, 6 Abb., 307; Goggs v. Lord Huntingtower, 12 M. & W., 502; Baldwin v. Kimmel, 16 Abb., 353; Mills v. Van Voorhies, 20 N. Y., 412; Brackett v. Baum, 50 id., 8, 11, 12.) The Special Term, at which the trial was had, was irregular, and the consent of the parties conferred no jurisdiction. (Kelly v. Thayer, 34 How., 163; Dedrick v. Richley, 19 Wend., 108; Northrup v. The People, 37 N. Y., 203; The

      People v. Moneghan, 1 Park. Cr., 570; Burckle v. Eckhart, 3 N. Y., 137.) The affidavit of the filing of the Us pendens was defective (Same v. Morse, 6 How., 344; Cook v. Staats, 18 Bar., 407.)

      Esek Gowen and L. B. Pike, for the respondent.
    The Special Term, at which the trial was held, was regular. (Hunt v. Wallis, 6 Paige, 374; Garcie v. Sheldon, 3 Barb., 232; Wilcox v. Wilcox, 14 N. Y., 575.) But if any irregularity existed, it was waived by the defendant. (Claflin v. Farmers’ and Citizens' Bank, 25 N. Y., 296; Blodget v. Conkling, 9 How., 442; Denton v. Noyes, 6 John., 296; Am. In. Co. v. Oakley, 9 Paige; Bogardus v. Livingston, 7 Abb., 428.) The direction as to the costs of judgment is directory. (Stewart v. Slater, 6 Duer, 83 ; Lewis v. Jones, 13 Abbott, 427.)
   Boakdman, J.:

Upon a reading of the great mass of evidence,.upon which this order appealed from was granted, certain facts appear to be well established, and need to be stated fora safe disposition of the various points raised. ,

On the 9th September, 1871, defendant James bought of plaintiff, the White hotel property at Saratoga Springs, at the price of $51,000, paying down but $500 cash and giving a bond and mortgage for the balance of the purchase money (less a small lien assumed), $49,355, interest thereon being payable semi-annually, and the first payment of principal, $6,500, to become due September 9, 1874; and by which mortgage it was further provided that if interest due should remain unpaid for twenty days, the whole principal should become due at plaintiff’s option. As this security was not adequate, defendant J ames gave his bond to improve such property by the expenditure of $12,000 thereon within eight months from the date of the deed, and, upon failure, to forfeit and pay, as liquidated damages, $10,000; the same to be applied upon the bond and mortgage. Ho thing was ever done in performance of this condition or agreement.

Immediately after such purchase, one Gaffney was appointed the defendant’s agent to manage said property (defendant living in Hew York city), to collect rents, etc. The plaintiff was never such agent, except to collect a small amount of rents, to reimburse him for moneys paid for insurance and taxes on property.

On the 9th of March, 1872, the semi-annual interest due on said bond and mortgage, was not paid to plaintiff, but only a part thereof, between $400 and $500 ; nor was the same paid within the twenty days thereafter. On the 8th of May, 1872, an action for the foreclosure of said mortgage was begun by the plaintiff, and the summons served on defendant James, and possibly on defendant Amelia, the wife of James. Defendant James put in an answer, setting up payment of interest on the ninth of March. Defendant Amelia did not appear, although James had the summons alleged to have been served upon her, and talked about her ability to answer. Coulter tried to stop the foreclosure suit by offers to turn out securities, but the parties were unable to agree upon terms, and Coulter, by his language, indicated an intention to abandon the property and let plaintiff get what he could.

On the 9th of July, 1872, the action was brought to trial, upon due notice to defendant’s attorney; notice by mail and telegraph having been given to Coulter, and probably received by him. By consent of defendant’s attorney (Coulter not appearing), the case was tried by Mr. Justice James, at the town hall in Saratoga Springs. Defendant’s attorney appeared on such trial and cross-examined plaintiff, who was sworn as a witness on his own behalf. Evidence was also given as to the condition of the property, and the possibility of its being sold in parcels. On the 12th of July, 1872, a decree, assented to by defendant’s attorney, was signed by the judge, the costs having been allowed by defendant’s attorney, except the extra allowance which was made by the court. The judgment was entered on that day with the knowledge of the defendant’s attorney "and without his dissent. John Foley, an attorney occupying the same office with plaintiff’s attorney, but in no way connected with him in business,' was appointed a referee to sell, with the assent of defendant’s attorney.

On the seventh of September, the premises were sold at public auction, and purchased by plaintiff, for the sum of $35,000. Notice of such sale was also sent to defendant, but he did not appear except by his attorney. On the same day, the report of the referee was made and confirmed at a Special Term, at the town hall, Sara-toga Springs, before Mr. Justice Bockes, the order reciting that E. H. Peters appeared and consented, as counsel for the defendant, and which is confirmed by the memory of Judge Bockes, impressed upon him for reasons given. The report of sale was filed, and judgment against defendant, James, for the deficiency, $18,911.94, was entered September 10, 1872. On the sixteenth, an execution for such deficiency was issued and delivered to the sheriff of Sara-toga, in the usual form, except that on the inside of same, it was directed, To the sheriff of the county of county.” On the outside, under the title of the action, were the words, Execution to Saratoga county,” with directions to levy, etc., signed by plaintiff’s attorney. By virtue of this execution, sums, in all amounting to $2,000, were collected from rents due defendant from other property. Other executions were issued to the city of New York. On the 1st of October, 1872, defendant, James, was examined on supplemental proceedings in the city of New York, and about October 18, 1872, an action, in the nature of a creditor’s bill, was begun against defendants, to reach the property of defendant, J ames, the defendants appearing and answering separately, about November 1, 1872, admitting the judgment.

After the sale, plaintiff, to the knowledge of defendant James, put improvements on the property of the value of $15,000, or over, and in January, 1873, contracted to sell the property to Charles S. Lester, for $69,000, and give a warranty deed. The valúe of the property, on the seventh of September, upon a forced sale, was not over $40,000, but has since much increased, from other, causes besides the improvements put thereon by plaintiff and others. Plaintiff has received from Lester, upon his contract of sale, $16,000, and the purchaser or his assigns have expended some considerable money, in improvements upon the property. Before the recovery of the judgment for the deficiency, Coulter disposed of a large amount of property, so that it could not be reached by an execution, and has at no time offered, to give security for the debt, if the judgment shall be opened.

On the 18th of March, 1873, and more than six months after the sale under the foreclosure, and judgment for the deficiency, the first motion papers ■ are made out and served. It is apparent, from all the papers presented on this appeal, that the defendant had no defense to this action; that Mr. Coulter knew it, and that he never hoped or expected to succeed in the defense. In the language of A. P. Smith & Co., June 15, 1872, he was seeing if this action could not be “staved off or beaten.” After failing in efforts to arrange the matter and stop the foreclosure, he concludes that plaintiff may “ take the property and go to hell with it, and if plaintiff got anything out of him, he would be lucky.” In accordance with this determination, Mr. Coulter disposes of a large amount of property, and puts himself in a position to defy, as far as possible, any judgment for deficiency that may be rendered against him. Had one tithe of the energy and industry, bestowed by Mr. Coulter in the search for, and exposure of, irregularities and technicalities, been exercised by him in attention to his defense, or in the protection of his interests upon the sale, no necessity for his present motion would have existed. If Coulter did not know in advance when the trial was to take place; if he did not learn of the trial and judgment within a few days thereafter; if he did not know, in advance, of the time and place of sale; if he did not know of the judgment for the deficiency in a few days after its entry; then appearances are very deceitful. It may be, as Mr. Coulter swears, that such indications are false, but if so, he must have taken special pains to prevent communications reaching him.

Upon such conclusions as to the facts, the defendant is not entitled to have the judgment set aside and an amended answer served, as a favor, for the simple reason that he does not show any defense or any merits. He does not show that the judgment rendered, is unjust, or that the new answer proposed, can be sustained by proof, or justified by the law. As before said, the judgment is right, and the allegations of the amended answer are not true. The weight of evidence in the appeal papers, sustains both these assertions.

ISTor is any satisfactory reason given why the sale should be set aside. Perhaps it is sufficient to say that the order, being in the discretion of the court below, is not appealable, in the absence of abuse of such discretion, of which there is no pretense. But the sale should be sustained upon the merits. Enough appears to convince the mind that Mr. Coulter’s absence from the sale was voluntary and intentional. His neglect, for over six months thereafter, during which time he was pursued by supplemental proceedings and creditors’ actions under this judgment for deficiency, is sufficient evidence that the sale was not objectionable in itself, but only by reason of the consequences. But there is no evidence that the property brought an inadequate price, or that it would have brought a greater price, had all the persons who have sworn to its value been present. Even Mr. Coulter does not offer to bid more upon a resale, after $15,000 to $20,000 of improvements have been put thereon, and other circumstances have added to the value of the property. While the property may have been worth, on the day of sale, $50,000 at private sale on long credit, it would be unreasonable to suppose that it would bring that sum in cash, at a forced sale. Such is not human experience. The very sale, made by plaintiff to defendant, is evidence of an extreme price, and a fair conclusion from the affidavits produced, would not carry the market value above $40,000 on the day of sale. There was, therefore, no such inadequacy of price, as should lead to a resale by the order of the court. This is the more evident, since no indemnity for expenses of sale or improvements made is offered, nor is there any guaranty that more than $35,000 will be bid upon a resale. The defendant, knew that plaintiff would not bid above $35,000. It is not pretended there is any fraud, misconduct or surprise that should invalidate the sale. Under such a state of facts, a resale should not be granted.

¡Nothing remains but to examine the various irregularities and defects alleged, and see whether any of them are of a character to avoid the judgment or sale, or to render it proper, in the furtherance of justice, to interfere therewith by setting the same aside, and ordering a resale.

1. The trial at the town hall in Saratoga Springs, before Mr. Justice James, was with the consent of defendant’s attorney, who participated in it without objection. A Special Term was then and there held, by regular appointment of the judges. The case was regularly noticed for trial at that term. The jurisdiction of the persons and of the subject-matter, was complete, and if there was any irregularity as to place where the trial was had, it was cured by the appearance and consent of defendant’s attorney.

2. The affidavit of filing of notice of pendency of action was defective. But proper notice was, in fact, duly.filed, and no objection was made to the sufficiency of proof of that fact by defendant’s attorney. The court could allow such proof to be made and filed mmopro tunc. It does not in any event render the judgment void, but is a mere irregularity, and might well be disregarded or amended under the Code, sections 173, 176, in the absence of any wrong or injury to defendant.

But a further reason why this objection should not avail, arises from the nature and the object of the notice and the filing. It is made by statute, constructive notice to persons who claim under the defendant in the action, but are not parties to it. As their rights only are or can be affected, it is reasonable that they only should be heard to take advantage of its omission, and no such persons appear in this action.

3. The nomination by one party of a referee, the approval by the opposite party, and thereupon, his appointment by the court, is no violation of the rules of law, and no irregularity. Foley was not a clerk of plaintiff’s attorney, nor ineligible.

4. The assent of defendant’s attorney to the form of the decree, is an answer to the claim that the premises should have been sold in parcels. But this objection was waived upon the argument.

5. The motion for leave to serve an amended answer has already been considered.

7. The entering of the judgment, within the four days after the decision, was, if an irregularity, waived by defendants, in consenting to the entry, and allowing confirmations of sale. Besides, I am of the opinion that the requirement is so far directory, only, as that a neglect of its provisions will not be considered in the absence of wrong or injury to the defendant. There is no evidence that this premature entry of judgment has deprived the defendant of any right, or prevented any action he would otherwise have taken.

The 8th objection was waived upon the argument.

9th, This has been considered under the seventh objection.

The 10th and 11th objections relate to the entry of judgment for deficiency, and to the issuing of execution on such judgment, within eight days after filing report of sale. These points are not now specially urged.

The 12th objection relates to defects in the execution. Enough appears to show its direction to the sheriff of Saratoga county, by the indorsement.

The only remaining objection touches the alleged want of service of summons upon Mrs. Coulter. We will assume that it was not served, for this discussion. As against the plaintiff, who was mortgagee, and those claiming under him, Mrs. Coulter had no claim against this property, because the mortgage was given for purchase-money. She had only an inchoate right of dower in the surplus realized after sale under the mortgage, which could only ripen into an absolute right upon the death of the husband, leaving her surviving. She therefore had no existing claim, at the date of this foreclosure, and no separate estate in the property, but only a possibility. Service upon the husband would bind the entire title, except such possibility. For that reason, perhaps, it has been held in Foote v. Lathrop, Eckerson v. Vollmer, Lathrop v. Heacock, and in the unreported case of Hendrickson v. Hendrickson, in this department, that a service upon the husband only, is good as to the wife, and the husband is bound to appear for her, or the default of the wife may be taken as if personally served.

The cases cited by defendant’s counsel are not in point. All of them are cases where relief was sought against the persons not served, and a personal judgment was rendered against them. But if such personal service upon the husband did not bind the wife and operate as a service upon her also, the most that can be said is, that her rights are not foreclosed. And if she shall survive her husband, whereby her inchoate right of dower would ripen into an absolute right of dower in the equity of redemption, she may then take her proceedings, and a judgment of foreclosure, to which she was not a party, will not bar her rights.

A laborious examination of the appeal papers, has satisfied this court that the learned judge who decided this motion at Special Term, has fully appreciated the merits and faithfully discharged his duty, in declining to grant defendant’s motions, or any part thereof.

The order of the Special Term is therefore affirmed, with ten dollars costs of appeal.

Present—Mtt.ler, P. J., and Boardman, J.

Order affirmed, with costs.

       28 Barb., 480 ; 3 N. Y., 334; 23 id., 160.

       Whitbeck v. Rowe, 25 How., 403; McCotter v. Jay, 30 N. Y., 80; Lefevre v. Laraway, 22 Barb., 167; Duncan v. Dodd, 2 Paige, 99; Amer. Ins. Co. v. Oakley, 9 id.

       Code, § 179.

       Rule 72.

         Potter v. Rowland, 8 N. Y., 448; Curtis v. Hitchcock, 10 Paige, 399.

       8 N. Y., and 10 Paige, ante.

       Rule 73.

       Lewis v. Jones, 13 Abb., 427; Stewart v. Slater, 6 Duer, 83.

       Mills v. Van Voorhies, 20 N. Y., 412.

       11 How., 42.

       53 Barb., 183; affirmed in 41 N. Y., 358.

       4 Lans., 1.

       1 Daly, 440; 16 How., 150; 6 Abb., 307; 16 Abb., 353.

       Mills v. Van Voorhies, 20 N. Y., 412.)


text:
    EDWIN A. MENEELY and GEORGE R. MENEELY, Respondents, v. CLINTON H. MENEELY and GEORGE H. KIMBERLY, Appellants.

      Trade-mm'k—name—right to the me of—Injunction to prevent use of family name — denied except in case of fraud or deceit—Distinction between bequest of good win of business and excVume me of name.

    In 1826, Andrew Meneely, the father of the plaintiffs, and the defendant Meneely, commenced the business of hell making at West Troy, and continued therein until 1851, when the plaintiff, E. A. Meneely, became his partner, and so continued until his father’s death in October, 1851, after which, the business was carried on by the plaintiffs. By reason of the skill of A. Meneely and his successors, the bell foundry had acquired a great reputation, the business having been carried on under the names of “ Andrew Meneely,” “ Andrew Meneely & Son,” “Andrew Meneely’s Sons,” and “E. A. & G. R. Meneely.” In 1872, the defendants commenced bell making at Troy, under the name of “ Meneely & Kimberly,” and issued catalogues, resembling in most, but not in all respects, those issued by the plaintiffs. The defendants, by the use of the name “Meneely,” expected and intended to derive a profit and advantage from the good reputation and celebrity in bell founding, given to that name by A. Meneely and the plaintiffs and the use thereof by them is calculated to do so, and does mislead persons not personally acquainted with plaintiffs and defendants, and with the respective locations of Troy and West Troy, and is injurious to the plaintiffs’ business. Held, that the plaintiff’s were not entitled to an injunction restraining the defendants from using the name “ Meneely ” in the business of bell founding at Troy.
    Under such circumstances, a court of equity will not interfere to prevent the use of a family name, in the pursuit of a lawful business, except where there has been fraud or deceit practiced, or where some false or fraudulent device has been employed to injure and interfere with the business of another, and impose upon the public.
    The cases upon this subject examined and distinguished.
    Andrew Meneely, by his will, after making certain specific legacies, devised all the remainder of his estate, both real and personal, to the plaintiffs, charging them with the support and maintenance of his children during the minority of the youngest of them, and with the payment of certain legacies, and he states that in so doing, he has taken into view “that I leave them * * * * conveniences for carrying on a successful business, * * * * and the good-will and custom which it is believed is established and connected vrith it.” Held, (1), that there is a distinction between appropriating the good-will of a business of a deceased father, carried on in a particular locality, and enjoying the benefit of his name and reputation as a man of skill and fair dealing ; (3), that there was nothing in the language of the will, which conferred upon the plaintiffs the exclusive use of the name of Meneely in the business of bell founding.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    In 1826, Andrew Meneely, the father of the plaintiffs and of the defendant, Meneely, commenced the business of bell making, at West Troy, and continued to carry-on the business until 1851, when the plaintiff, Edwin A. Meneely, became his partner, and the firm continued, as thus composed, until the death of the father in October, 1851, after which the business was carried on by the plaintiffs. Andrew Meneely left a will, by which, after making certain specific bequests, he devised all the remainder of his estate, both real and personal, to the plaintiffs, charging them with the payment of all his debts, and with the support of his children, until the youngest of them living should attain the age of twenty-one years, and with the payment of certain legacies to his children and wife. In the first clause of his will, he states that, in making this distribution of his estate and charging the plaintiffs with the payment of these legacies, he has taken into view “ that I leave them in control of an ample capital, and with real estate constituting ample grounds, and also implements and conveniences for continuing and carrying on a successful business, which I have been favored in establishing by.many years of toil and industry, and the goodwill or custom which, it is believed, is established and connected with it, out of which business, if prosecuted by them with prudence and economy, which I have reason to believe they will use, I hope and confidently expect they will, they will have ample means to meet the payments I have charged upon them.”
    The plaintiffs complied fully with the conditions contained in the will. In the father’s lifetime, and up to the time when Edwin became a partner, the firm style was “ Andrew Meneely,” but on Edwin’s becoming a partner, it was changed to “ Andrew Meneely & Son.” After the father’s death, the firm name was again changed to “ Andrew Meneely’s Sons,” and, in 1863, to “ E. A. & G. E. Meneely,” the present name. In 1811, the defendant, Clinton H. Meneely, one of the children named in the will, associated himself with the defendant, Kimberly, and began the business of manufacturing bells, under the name of “ Meneely & Kimberly,” at Troy.
    This action was brought to restrain the defendants from the use of the name of “ Meneely ” in the business of bell founding at Troy.
    The referee, before whom the action was tried, found that the defendants, by the use of the name of “ Meneely ” in the establishment of their bell foundry at Troy, and in manufacturing and selling bells at Troy,' under the name of “ Meneely & Kimberly,” expected and intended to derive a profit and advantage by reason of the good reputation and celebrity in bell founding, given to that name throughout the country, by the said Andrew Meneely and the plaintiffs, and that the use of the name of “ Meneely ” by the defendant, is calculated to, and does, mislead persons who are not personally acquainted with the plaintiffs and defendants, nor with the respective locations of Troy and West Troy, and the difference between these places, into the belief that the defendants are the proprietors of the “ Meneely Bell Foundry,” carried on by the plaintiffs; and such use of the name, Meneely, is injurious to the plaintiffs’ business.
    The referee decided in favor of the plaintiffs, and directed that an injunction should issue, restraining the defendants from using the name and designation, “Meneely,” in the business of bell founding at Troy.

      Irving Browne, for the appellants
    Courts have no power to restrain a man from honestly using his own name in his own business. (Amoskeag Manuf. Co. v. Spear, 2 Sand., 607; Clark v. Clark, 25 Barb., 79 ; Howe v. Howe Machine Co., 50 Barb., 236; Faber v. Faber, 49 Barb., 357; James v. James, L. R., 13 Eq. Cas., 421; Brown’s Trade-marks, pp. 402, 143.)

      Edgar L. Fursmcm, for the respondents,
    cited, as to the right to the use of the name Meneely, Fetridge v. Wells (13 How., 385); Stokes v. Landgraff (17 Barb., 608); Howard v. Menee (1 How., App. Cases, 558); Congress and Emp. Spring Co. v. High Rock Cong. Spring Co. (57 Barb., 526); S. C. (10 Abb. [N. S.], 348); Newman v. Alvord (51N. Y., 189); Howard v. Henriques (3 Sand. S. C. R., 725); Churton v. Douglass (1 H. R. V. Johns., 176); Stone v. Carlan (3 Mod. Law R., 361); Davis v. Kendall (2 R. I., 566); Ainsworth v. Walmsley (44 L. J. R. [N. S.], 352); Perry v. Truefitt (6 Beavan, 66); Holmes v. Holmes (37 Conn., 278); Scheitzer v. Adkins (46. L. J. R., 37 [N. S.], 847; Laws of 1863, chap. 209).
    A brief, on behalf of the respondents, was also filed by Hon. John H. Reynolds.

   Miller, P. J.:

The plaintiffs claim that the use of the defendants’ firm name of Meneely & Kimberly,” in conducting their business of bell founding in the city of Troy, is an infringement upon the plaintiffs’ right to use the name of Meneely,” as a trade-mark in their business at West Troy, which was established by the father of the plaintiffs, and of the defendant “ Meneely,” and the plaintiffs themselves in the same business, and has become a trade-mark of great celebrity and value. The law favors the protection to manufacturers, of any trade-mark, name or symbol, which distinguishes their goods from others, so far as the ownership is concerned, and will interpose its strong arm to restrain those who attempt to appropriate this species of property by fraud or improper practices, to the detriment and injury of those who have acquired a right to the same.

In the case at bar, the defendants have not used the firm name of the plaintiffs, or any name by which it has been heretofore known or designated, but the name of “ Meneely & Kimberly,” as constituting a copartnership while engaged in the same business as the plaintiffs have, for a long period of time, carried on. The objection is to the employment of the name of “Meneely” in connection with the sarpe business as the plaintiffs, at the place where the defendants are located, which is the city of Troy, on the opposite side of the Hudson river from where the" plaintiffs are situated.

Although the complaint alleges that the defendants established a bell foundry with the intention to injure the plaintiffs, and to deceive the public, the referee does not find any such intent, or that the defendants were guilty of any fraud, dishonesty or deceit. It is true, he finds that the defendants expected and intended to derive profit and advantage from the use of the name employed, and that the name of “ Meneely ” was calculated to, and did mislead persons, not personally acquainted with the parties or the several localities, and is. injurious to the plaintiffs’ business of bell making, but no intentional wrong is attributed to the defendants. As there was no bad intent found as a matter of fact, the use of the name must, necessarily, have been innocent.

The question then arises, whether the defendants are liable to be enjoined without having done any wrongful act, and merely because they assumed to use the name of one of them in connection with a business, in which the ancestor of that defendant and of the plaintiffs had been engaged, and which, by a life of industry and toil, and by skill, he had made profitable, and an invaluable inheritance for his posterity. The right to the enjoyment of a good name, personally, or in connection with a business established by the labor and integrity of an ancestor, is an inestimable privilege, which cannot be too highly prized. As a general rule, every individual is entitled to the full benefits and advantages which such a privilege confers, and should not be deprived of the same by the interference of the courts, except in extraordinary cases, and for the most cogent of reasons. Nor does there appear to be any justice or equality in allowing some members of a family, whose paternal name and business reputation has been transmitted to them, to enjoy an entire monopoly of its fruits, to the exclusion of others. The defendant, Clinton H. Meneely, claimed the right to profit from the name which he inherited, and the good reputation which his father had earned in the business of bell founding. He was open and above board in declaring his intention thus to derive advantage, and formed a copartnership and conducted his business with the expectation and belief that profit would accrue .to him, by reason' of the good name and celebrity which had attended his father’s successful career. I am inclined to think that, in this respect, he committed no wrong, and that he had a perfect right to use his own name in his own business, even although that name was the same as the one used by the plaintiffs, and the business precisely of the same character. It would, it seems to me, be extremely inequitable to allow some members of a family to deprive others of the rights acquired by a common inheritance, and to say that the family name should not be employed by one, because it might interfere with others—in other words, to deprive a man of the right to earn a livlihood in the name of his father, and in the pursuit of the only business which that father had been engaged in, or the son had been instructed to follow. The law does not sanction any such injustice, and, so far as I have been able to discover, none of the reported cases go to the extent of holding that a court of equity will interfere to prevent the use of a family name in the pursuit of a lawful business, under circumstances similar to those which are presented in the case at bar.

In most of the cases, and I am inclined to think there is no exception to this rule, the power of the court has only been interposed where there has been fraud or deceit practiced, or where some false or fraudulent device has been employed to injure and interfere with the business of another, and to impose upon the public. A brief reference to some of the leading cases which are relied upon, will, I think, sustain this view. In Sykes v. Sykes, the action was to restrain the defendant from the use of the words, “ Sykes’ Patent,” in the manufacture of powder flasks. The declaration alleged fraud and deceit. The plaintiff had a patent which had been adjudged invalid, on account of a defect in the specifications, but the plaintiff afterward continued to use the same mark on his manufactured articles. The defendants imitated his, plaintiff’s, stamp, and the goods were sold by retailers as articles manufactured by plaintiff. A verdict for the plaintiff was sustained upon the ground that the substance of the declaration was proved, and that the goods were sold for the express purpose of being resold as goods of the plaintiff’s manufacture. The case was not analogous to the one at bar, for it showed the entire appropriation, verbatim, of a trade-mark, and was decided upon the ground that there was fraud. In Croft v. Day, the defendant, Day, having obtained the consent of one Martin, to use his name, set up the trade of a blacking manufactory, with labels having a general resemblance to those of the original firm of Day & Martin, whom the plaintiff represented. The defendant was a nephew of Day, one of the members of the old firm, who was deceased. And the Master of the Dolls held that, while the defendant had a right to the use of his name, he had no right to use it at the expense of Day’s estate, or in such a way as to deceive and defraud the public, and to obtain for himself, at their expense, an undue and improper advantage. The fraud in this case was quite manifest, not only in using the name of Martin, who was not a member of the firm, and the imitation of labels of the old firm, but in substituting Holborn Hill for High Holborn, both meaning the same street, as the place of business of Day. In Holloway v. Holloway, the plaintiff sold a medicine as the “ Holloway’s Pills,” and the defendant, his brother, Henry Holloway, commenced selling pills as “ H. Holloway’s Pills,” in boxes similar to the plaintiff’s, with a view of passing off his pills as plaintiff’s. It appeared that the defendant had given the printer copies of plaintiff’s directions, papers, etc., with the design of imitating them, and the decision was placed upon the ground that the defendant intended to deceive the public, and make them believe that he was selling the plaintiff’s pills. In Burgess v. Burgess, an injunction was refused as to the use of the name of an article, and the doctrine is laid down, that where two persons have the same name, it does not follow, because the defendant sells goods under his own name, and the plaintiff has the same name, that he is selling them as the goods of the plaintiff.

Without examining particularly all the English cases, I think it may he said that in none of them, is a party restrained from the use of his own name,, unless that party is brought within the rule already laid down. The same remarks will apply to the American cases. And the right to use the name of a person, although it was the same as another, has been upheld. In Clark v. Clark, a party was restrained from using the same trade-mark as another, but it" was said that two persons of nearly the same name being engaged in the same business, each, had the undoubted right to use his own name, and to describe the article which he sells by his well-known name. In Faber v. Faber, an injunction was dissolved restraining the defendant from using his own name, although it was the same as the plaintiff’s. And it was said by Sutherland, J., that it is easy to see that this circumstance may be an injury to the plaintiff, but the defendant, Faber, has a right to use his own name.” * * * “ And amy imju/ry which the plaintiff has suffered or may suffer by such use of the defendant Faber’s name, merely, must be viewed as am injury without a remedy A In Howe v. The Howe Machine Company, an injunction was dissolved restraining the defendant from the use of the plaintiff’s name. It was said by one of the judges, that the surname could not be used in such a way as to deceive the public, and deprive the plaintiff of the benefit of the notoriety which his machines had gained; and another concurred upon the ground that there was no fraud upon the plaintiff in the use of the name. In Stonebraker v. Stonebraker, the evidence of an intent to deceive was manifest, and the defendants were enjoined from manufacturing or imitating the plaintiff’s medicines, and from counterfeiting his labels, marks, etc., but no restraint was put upon the use of Stonebraker’s name. In Holmes v. Holmes , there was also a question of fraud, as well as an element of a contract or an estoppel.

While there are cases where the appropriation of a trade-mark which misleads the public, will demand the granting of an injunction, I am not prepared to assent to the doctrine that fraud or a wrongful, intent is to be presumed from the mere fact of using one’s own name, which is the same as that of another, or that a person cannot do so where there is even a tendency to injure another, or to impose upon the public. The true rule is well stated in Wolfe v. Burke, by Gilbert, J., who remarks: A man cannot make a trade-mark of his name to the exclusion of a like use of it by another who bears the same name, if the use by the latter is fair and unaccompanied by any contrivance to deceive.” Brown on Trade-marks, at page 143, lays down the following doctrine: The rule is, that a man cannot turn his name into a trade-mark. Any other rule would lead to the most absurd consequences. There are several dicta the other way; but this must be attributed to a loose habit of speech or a want of acquaintance with the indispensible requisites of the technical mark.” See, also, pages 246- and 314, and pages 329, 402, 403, where numerous cases are cited which sustain this position.

In the cases cited, the degree of similarity and the imitations were far more apparent and distinct than in the case .at bar, and it is worthy of observation and especial attention, that here the defendants only employed the surname of one of them, which one alone is of the same character as the plaintiffs’, or bears any similarity to their name or any of the various cognomens, some forty in all, by which they have been designated by their numerous business correspondents. It would be a far-reaching extension of the powers of a court of equity, to grant an injunction which would protect the plaintiffs in the use of all the different names, by which they have been in the habit of being addressed by their customers. There is no adjudged case, which has protected trade-marks to such an extent, or ever struck out the name of a single member of a firm, because it was similar to another engaged in the same business. The partnership name here, was “Meneely & Kimberly,” and the plaintiffs’ firm name, “E. A. & G. R. Meneely.” And there is no such resemblance as would of itself either tend to deceive the public, or indicate a fraudulent purpose. The name of “ Meneely ” could not have been used with apparently less design to commit a fraud, unless Kimberly’s name was placed ahead of it, which I think was not required.

The location of the defendants’ business at Troy, was not of itself evidence of an attempt to deceive the public, or an interference with plaintiffs’ rights. It was in a different city and county, across a river and some distance from plaintiffs, and the center of a manufacturing business of various kinds, where -there was a market for this kind of manufactured property, and where, at least, one other bell foundry was in existence. If the defendants had no right to locate at Troy, then it would be difficult to prescribe the limits within which they could establish a business. If distance is to be considered, then they might be driven not only from the immediate vicinity of the plaintiffs, but beyond the limits where the name of Meneely was known or had acquired a reputation. The referee has found that the catalogues issued by the defendants, in the order in which it treats of bell founding and other matters, is in most, if not all respects like the plaintiffs’ catalogues, and the illustrations, in most instances, resemble, but in some instances are strikingly different, and that the language is different. The similarity is certainly not very marked, and not so distinct as to make it appear that there was an intention to appropriate the plaintiffs’ work for the benefit of the defendants. In presenting a subject of this character and a business of the same nature, it is not difficult to see that there must necessarily be strong resemblances in many points, and hence it is not entirely clear that an infringement has been made upon the plaintiffs’ rights in this respect. That the illustrations of bells are similar, is by no means strange, as they are very much alike in most of their leading features, and it is not claimed that the plaintiffs enjoyed an exclusive right to manufacture any of the various kinds of bells, of which illustrations are given, as against other persons engaged in the same kind of business. It would be impracticable to illustrate certain kinds of bells which are alike, without marked resemblances. Take for instance the great bell of Moscow, illustrations of which must necessarily be alike, in order to present an accurate representation of the same. The same remark will apply to most kinds of church, as well as other bells. But the plaintiffs claim nothing in their complaint on this account. They do not allege any imitation of plaintiff’s trade-mark, by impressing or making the same upon the defendant’s bells, nor any imitation of the plaintiffs’ catalogue, or ask relief for any such reason. In fact, a catalogue or' advertisement cannot constitute a trade-mark. The plaintiffs’ counsel insists that Clinton H. Meneely, by the acceptance of the benefits and acquiescence in the terms of his father’s will, is estopped in equity from appropriating the reputation founded on the good-will of his father’s business, for his own benefit. There is quite a distinction between appropriating the good-will of the business of a deceased father, carried on at a particular locality, and enjoying the benefit of his name and reputation as a man of skill and fair dealing, in the business in which he was engaged; and there is, in my opinion, nothing in the language of the will, which confers upon the plaintiffs the exclusive use of the8 name of Meneely in the business of bell founding, or which precludes the defendant, Meneely, from engaging in the same kind of business in another locality. It should be a clear and explicit provision, which would preclude a child from the enjoyment of his father’s name and fame, and from earning a livelihood within the limits where such reputation was known and acknowledged. No such condition is made in the will, by which Clinton H. Meneely surrendered any right which he had, by the acceptance of the bequests, made for his benefit; nor is any such intention manifested by the testator. The bequest to Clinton was unconditional, and without any restriction upon him. In fact, he was, at the time of his father’s decease, an infant, and it does not appear that the provision, in his behalf was any more than an equal share of the large and valuable property, most of which he had given to the plaintiffs.

The intention, therefore, to confine the use of the testator’s name to the plaintiffs, is not supported by evidence, and is not to be inferred from the facts and circumstances presented. Even if the testator had a right to confer the exclusive right to the use of his own individual name, it may well be doubted whether his proprietorship extended so far as to prevent his son from the fair and honest employment of his own name in the prosecution of a lawful business in the manufacture of bells. As long as no fraud or deceit was practiced, or false or fraudulent deceit resorted to, so as to directly interfere with the plaintiffs’ business, or to deceive or defraud the public, the defendants were justified, and cannot be restrained by the interposition of a Court of Equity. The referee was clearly in error in his conclusion, and the judgment must be reversed and a new trial granted, with costs to abide the event.

Present—Miller, P. J., Bocees and Boardman, JJ.

Judgment reversed and new trial ordered, costs to abide the event.

       Corwin v. Daly, 7 Bosw., 233.

       3 B. & C., 541.

       7 Beav., 84.

       13 Beav., 209.

       17 Eng. Law & Eq., 257.

      See Rodgers v. Nowill, 5 Man., Gr. & Scott, 109; Taylor v. Taylor, 23 Eng. L. & Eq., 281; Perry v. Truefitt, 6 Beav., 66; Scheitzer v. Utkins, 46 E. L. J. R. (37 N. S.), 847.

       25 Barb., 77.

         49 Barb., 357.

       50 Barb., 236.

       33 Maryland, 252.

       37 Conn., 278.

       Amoskeag Man. Co. v. Spear, 2 Sand., 599.

       7 Lans., 151, 156.

       Candee v. Dure, 54 Ill., 439.


text:
    JOHN BRADY, Respondent, v. THE RENSSELAER AND SARATOGA R. R. CO., Appellant.

      Negligence—Fences and cattle-guards— duty of railroad company to maintain.

    A cow, owned toy the plaintiff, was left in charge of a hoy, who drove her from plaintiff’s stable to an open lot, adjoining defendant’s track, near a crossing, in the vicinity of which, some of the fences were temporarily and necessarily down, for the purpose of repairing the roadway of defendant; the boy having left the cow for a short time, she strayed upon the track and was killed by a passing train; held, that the defendant was liable.

      Bowman v. The Troy and Boston R. R. Co. (37 Barb., 516), distinguished.
    The defendant was bound to erect and maintain fences and construct and maintain cattle-guards at the crossing near which the cow was run over, and having failed to do so, was liable to the plaintiff for the damages sustained by him. The exceptions to this rule are, where it appears that the plaintiff drove his cattle on the road and left them there, or voluntarily permitted them to stray upon the track, or did some positive act increasing the danger.
    Appeal from a judgment, in favor of the plaintiff, entered upon a verdict of a jury, in an action brought and tried in the Albany County Court. The plaintiff, in July, 1872, owned a cow, which, on the day in question, was left in charge of a boy, who, in the afternoon, drove her from plaintiff’s stable down to an open lot adjoining defendant’s track, in the northern part of the city of Albany, near a crossing known as Holligan’s. In the vicinity of this crossing, defendant’s roadway 'was being improved and repaired, and some of the fences at the crossing were temporarily and necessarily down for that purpose. The boy left the cow.for a short time, and she strayed upon the track, either upon the crossing or south of it, just as a regular train arrived at this point, and was struck and killed, and the engine and cars were thrown from the track and injured. At the close of plaintiff’s testimony, defendant moved for a nonsuit, on several grounds stated, and again renewed said motion at the close of defendant’s testimony, but the motions were denied, and the defendant excepted. The jury found a verdict in favor of the plaintiff, for fifty dollars, and judgment having been duly entered, the defendant appealed.

      George W. Miller, for the appellant and defendant.

      Anson Bingham, for the respondent and plaintiff.
   Miller, P. J.:

In Bowman v. The Troy and Boston Railroad Company, it was held, that, where one suffered his cow to be at large in a public street, and on the track of a railroad in a city, apparently alone and unattended, with no one to take charge of her, and where it did not appear that she was in the vicinity of the plaintiff’s residence, or had been previously taken care of by him, or had escaped without his fault, or was lawfully traveling along the street, that he could not recover for injuries to the cow, happening through the negligence of the railroad company. This was an extreme case, and differs essentially from the case at bar, for here the cow was kept and fed in the plaintiff’s stable, and only allowed to go out in charge of a boy employed for that purpose, and then, not very far from the plaintiff’s residence. The plaintiff had taken every precaution to guard against danger or accident, and it was the absence of the boy, without the knowledge or consent of the plaintiff, which enabled the cow to stray upon the defendant’s track, where she was killed. There is a class of cases which holds, that, where the defendant was in default, the negligence of the owner, in permitting the animal to run at large in the highway, or to trespass upon the premises of a neighbor, is not a defense.

I am inclined to think that the judgment may he upheld within the principle here laid down, and that the temporary absence of the boy in charge of the cow, was no defense. Even if it may properly be urged, that there was a question of plaintiff’s negligence in the case, I am not prepared to say that it was not for the jury to determine, under all the circumstances, whether there was negligence. But, independent of these considerations, I think that the case may properly be disposed of upon another ground. The defendant was bound to erect and maintain fences, and to construct and maintain cattle-guards at their crossing, near which the cow was run over. This had been done, but when the accident occurred, the fence was temporarily removed, for the purpose of repairing the •track, and there was evidence to show that the cattle-guard, at the crossing, was defective and insufficient, so that cattle could walk over the same. The defendant was clearly liable within the principle laid down in Corwin v. The N. Y. & E. R. R. Co., by Denio, J., that the design of the section was to require the railroad company to inclose their tracks with substantial fences, and to guard them by ditches, called cattle-guards, and that one method provided for securing that object, was the provision charging the companies which had disregarded the statute, with damages for all injuries done to animals, and that it was not material from whence, or under what circumstances, the animals came upon the track, provided they were enabled to get there by the absence of cattle-guards. As was said in Bradley v. N. Y. & E. R. R. Co.: “It is no excuse that the cattle, horses, etc., were at large in violation of law.” The exceptions to this general rule are, where it appears that the plaintiff drove his cattle on the road and left them there, or did some positive act increasing the danger of his cattle, or in a ease where a party voluntarily permits his cattle to stray upon the railroad track. As the case stood, there was no question of contributory negligence to submit to the jury, for even if the plaintiff had known of the defects of fence or cattle-guards, it would have been no defense. The point is not distinctly taken, that the provision of the railroad act cited, does not apply to cities and villages, and for that reason the defendant was excused. But if this can be urged, it is completely answered by saying that, in the cases which sustain this doctrine, it appeared that no fences or cattle-guards had been made, and that they could not be made without creating nuisances or interfering seriously with the owners of property in villages, while here, they were conceded to be necessary, and were actually made by the defendant. While the rule laid down might very properly apply to a populous city or village, or such portion of it as was built up, the reason of it would have no application to the outskirts of a city or village, where the land was open and not occupied with buildings. But the rule has been restricted and it is held, that the statute as to cattle-guards, at road crossings, applies as well to streets in villages as to country highways. There was no error in any of the rulings upon the trial, and the judgment must be affirmed, with costs.

Present—Miller, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.

       37 Barb., 516.

       Munch v. N. Y. C. R. R. Co., 29 Barb., 647 ; Suydam v. Moore, 8 Barb., 358.

       S. L. of 1854, 611, § 8.

       13 N. Y., 49.

       34 N. Y., 432.

       Corwin v. N. Y. & E. R. R. Co., supra; Poler v. N. Y C. R. R. Co., 16 N. Y., 480.

       Shepard v. B., N. Y. & E. R. R. Co., 35 N. Y., 644, 645.

       Brace v. N. Y. C. R. R. Co., 27 N. Y., 269.