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From England v. Downs, 6 Beav. 269, viz.: "It is the chance or probability that custom will be had at a certain place of business, in consequence of the way in which that business has been previously carried on." From Story on Partnership, viz.: "It may be described to be the advantage or benefit which is ac

the capital stock, funds or property employed therein, in consequence of the general public patronage and encouragement which it receives from constant or habitual customers, on acccount of its local position or common celebrity," etc. Section 90. Browne TradeMarks (2d ed.), §§ 522, 523. In further illustration of this principle we have selected the following paragraph from Williams v. Farrand as giving a careful analysis from a commercial point of view, of what passes by an act of sale containing no stipulations of good-will, viz. : "A retiring partner conveys without stipulating good

whether, under Dormitzer's purchase from Vonderbank and his sale to Schmidt, including specifically the good-will of the hotel establishment, the latter acquired and is entitled to use the name "Hotel Vonderbank" or "Vonderbank Hotel" as the style of his hotel. This must be determined by the true meaning of the term "good-will," as it is employed in commer-quired by an establishment beyond the mere value of cial transactions. We have been referred to only three cases in our own reports in which the subject has been discussed, but in neither of which was the particular question we have here discussed, i. e., what passes by the term "good-will" in an act of sale? The cases referred to are the following, viz.: Wintz v. Vogt, 3 La. Ann. 16; Succession of Journe,, 21 id. 391; Bergamini v. Bastian,35 id. 60; S. C., 48 Am. Rep. 216. In treat ing of the good-will of a market stall, the court said in the second case that it is " understood [to be] the run of custom which the transferrer had obtained by the patronage of the friends resorting to his stand to pur-will, in addition to his interest in the tangible effects, chase, and generally from the reputation his stand had acquired as one at which good and wholesome meats were sold, and where customers were accommodated and fairly dealt with." This definition appears to have been paraphrased from that of Judge Story, which is frequently quoted by judges and authors. Story Partn., § 99; 8 Am. & Eng. Enc. Law, p. 1366, in which brief quotations from English adjudications are found. The third of the three cases above referred to treated of an act of sale of an eating-house at No. 21 Royal street, city of New Orleans, which contained no stipulation of good-will having been conveyed, the plaintiff's complaint being that his vendor had soon afterward begun a similar business at No. 18 Royal street, in violation of his contract. But the court substantially held that, inasmuch as there was no stipulation in the contract that the vendor should not resume business in his own name, the injunction should be dissolved. We have referred to those decisions for the sole purpose of showing that our own jurisprudence affords no light on the present controversy, and of illustrating the necessity of looking into the decisions of other courts and the opinions of text-writers for its correct solution, and we make the following quotations as conveying a clear idea of what good-will is. For instance, the Michigan court say in Chittenden v. Witbeck, 50 Mich. 401: "Good-will has been defined by this court to be the favor which the management of a business wins from the public, and the probability that old customers will continue their patronage," or as stated by Lord Eldon in Cruttwell v. Lye, 17 Ves. 335, say the court, "the probability that old customers will resort to the old place." The same court say in Williams v. Farrand, 50 N. W. Rep. 446: "Good-will may be said to be those intangible advantages or incidents which are impersonal so far as the grantor is concerned, and attach to the thing conveyed. When it consists in the advantage of location, it follows an assignment of the lease of the location." Or as previously said by that court in the Chittenden Case: "Good-will attaches to the property, and in case of a lease it belongs to the lessee only during its continuation. * ** The claim to an interest in the goodwill is inseparable from the claim to an interest in the lease, and when one falls the other falls with it." To a like effect is the opinion of the same court as expressed in Myers v. Buggy Co., 54 Mich. 215; S. C., 52 Am. Rep. 811. A standard author, in his treatise on trade-marks, discusses and defines good-will as an analogous right, and quotes with approval the expressions of various English judges on the subject. Thus from Wedderburn v. Wedderburn, 22 Beav. 84, viz.: "There is considerable difficulty in defining accurately what is included under the term 'good-will.' It seems to be that species of connection in trade which induces customers to deal with a particular firm."

simply the advantages that an established business possesses over a new enterprise. The old business is an assured success; the new an experiment. The old is a going business, and produces its accustomed profits on the day after its transfer. It is capital already invested and earning profits. The continuing partner gets these advantages. The new business must be built up. The capital taken out of the old concern will earn nothing for months, and in all probability the first year's business will show loss instead of profit. For a time at least it is capital awaiting investment, or invested earning nothing. The retiring partner takes these chances or advantages. He does not agree that the benefit derived from his connection with the business shall continue. He does not agree that the old business shall continue to have the benefit of his name, reputation or service, nor does he guarantee the continuance of that patronage which may have been attached by his name or reputation. He does not pledge a continuation of conditions. He takes out of the business an element that he contributed to the success of the business. He sells only those advantages and incidents which attach to the property and location, rather than those which attach to the person of the vendor. He sells only so much of the custom as will continue in spite of his retirement and activity. He sells probabilities and not assurances." Page 449. (Italics ours.) As a corollary of the foregoing opinion, an extract may be properly selected from that of the Connecticut court in Cottrell v. Manuf. Co., 54 Conn. 138, in reference to what passed by a bill of sale of goods, etc., accompanied by a transfer of the good-will merely, viz.: "By purchasing the good-will merely Cottrell secured the right to conduct the old business at the old stand, with the probability in his favor that the old customers would continue to go there. If he desired more he should have procured it by positive agreement. The matter of good-will was in bis mind. Presumably he obtained all that he desired. At any rate the express contract is the measure of his right, and since that conveys a good-will in terms, but says no more, the court will not upon inference deny to the vendor the possibility of successful competition, by all lawful means, with the vendee in the same business. No restraint upon trade may rest upon inference. Therefore in the absence of any express stipulation to the contrary, the vendor might lawfully establish a similar business at the next door," etc. (Italics ours.)

From the foregoing it appears that good-will is an advantage or benefit which is acquired by a business establishment beyond the mere intrinsic value of the capital stock; that it is the general public patronage and encouragement which a business receives from its customers on account of its local position; that it is the subject of value and price, and of bargain and sale, though intangible, but in order to be conveyed men

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tion must be made of it in the act of sale. The discussion of the rights of a vendee of good-will more frequently arises in the course of liquidation of corporations and sales in partnership that elsewhere, but as the principle involved is the same as in cases of bargain and sale between individuals, decisions involving such transactions, may be examined, along with others, in ascertaining to what extent and in what class of cases such sales involve the assignment to the vendee of the right to use the name of the vendor. In Williams v. Farrand it was held that a retiring partner could not "use his own name * * *in such a way as to lead the public to suppose that he is continuing the old business," etc. In Myers v. Buggy Co., 54 Mich. 215; S. C., 52 Am. Rep. 811, three partners retired from the Kalamazoo, Wagon Company, and thereafter organized and put into operation the defendant company. They were enjoined from prosecuting that business on the ground that they were guilty of an act of piracy, as they were not using their own names," but an assumed name calculated to deceive the public. Like cases are stated in Burgess v. Burgess, 3 De G., M. & G. 896, and in Lee v. Ialy, L. R., 5 Ch. App. 155. In the Williams Case the court stated "that when an express contract has been made * *for the use by a purchaser of a fictitious name, or a trade name, or a trade-mark, courts will enjoin the continued violation of such an agreement." Citing Grow v. Seligman, 47 Mich. 607; S. C., 41 Am. Rep. 737; Beal v. Chase, 31 Mich. 490; Burckhardt v. Burckhardt, 36 Ohio St. 261; S. C., 51 Am. Rep. 842; Tode v. Gross (N. Y. App.), 28 N. E. Rep. 469. But the court further stated that such a stipulation need not have been made in the act of sale, because " an assignment of all the stock, property *** carries with it the exclusive right to use a fictitious name in which such business is carried on, and such trade names and trademarks as have been in use in such business. These incidents attach to the business * * * and pass with it. Courts have frequently held that a trade-mark has no separate existence; that there is no property in words, as detached from the thing to which they are applied, and that the conveyance of the thing to which it is attached carries with it the name." Citing Derringer v. Plate, 29 Cal, 292; Gage v. Publishing Co., 11 Ont. App. 402; Hoxie v. Chaney, 143 Mass. 592; S. C., 58 Am. Rep. 149. In this last case it is stated that a bill of sale conveying "all the right, title and interest in and to all and singular the partnership property belonging to the firm was held to convey the company's trade-marks for the manufacture of certain soaps pursuant to the formulas of Hoxie, though not mentioned, but not to convey the good-will preventing Hoxie from manufacturing soaps otherwise than by such formulas. Bassett v. Percival, 5 Allen, 345; Cottrell v. Manuf. Co., 54 Conn. 122. The same proposition is stated more clearly in Cement Co. v. Le Page, 147 Mass. 206, the court holding that it was legitimate for one to sell "the use of his name as a trade-mark," i. e., "as a description or desiguation of a manufactured article, so as to deprive himself of the right to use it as such and confer the right upon another." Thus: "One who has carried on a business under a trade-mark name, and sold a particular article in such a manner, by the use of his name as a trade-mark or a trade name, as to cause the business or article to become known or established in favor under such name, may sell or assign such trade name or trade-mark when he sells the business or manufacture, and by such sale or assignment conclude himself from the use of it in a similar way.' McLean v. Fleming, 96 U. S. 245; Shaver v. Shaver, 54 Iowa, 208; S. C., 37 Am. Rep. 194; Frazier v. Lubricator Co. (Ill. Sup.), 13 N. E. Rep. 639. Many of these cases are brought forward in the Williams Case, and after recapitulating these different propositions the

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court say: "These propositions are sustained by a long line of authorities, but in none of those cases does the question hinge upon a grant of good-will. Com: plainants insist however that a grant of good-will * ** imposes certain restrictions upon the vendors and inter alios is the use that may be made of their own names," but the court examined that question fully, and placed the proper limitation upon that contention by stating that its sole effect was to prevent the vendor's subsequent employment of his name so as to impair the good-will he had conveyed to the yendee, The court in the Williams Case then furnishes the following appropriate illustration of the rule, viz.: “A partnership name may become impersonal after the death of the partners, and it is then likened to a fictitious or corporate name. A surname may become im. personal when it is attached to an article of manufacture, and becomes the name by which such article is known in the market, and the right to use the name may in consequence follow a grant of the right to manufacture the article, or a sale of the business of manu facturing such article, and when the right to manufacture is exclusive the right to the use of the name, as applied to that article, becomes likewise exclusive." This is followed by this conclusive statement, viz.; The rule that upon the dissolution of a firm neither party has the right to use the firm name, as well as the other rule, that a retiring partner has no right to use the old name, are both subject to the exception that a person has the right to use his own name unless he has expressly contracted otherwise..* * The right to continue the use of a firm name, as well as a restric tion upon the use by a retiring partner of his own name, are proper subjects of bargain, sale and agreement." Hence the defendants, as retiring partners, without any restrictions having been placed upon them in the act of sale of their interest in the copartnership business, were recognized to "have the right to use their own names or any collocation of their own names."

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We cannot better illustrate the principle that is in volved in the foregoing decisions than by citing the case of Meneely v. Meneely, 62 N. Y. 431; S. C., 20 Am, Rep. 489, wherein an injunction restrained the defend; ant from in any way using the name and designation of "Meneely' in the business of bell-founding in the city of Troy. The name of the defendant is Meneely, and he is engaged in the business mentioned. The necessary consequence of the injunction was to com. pel the defendant, Meneely, either to discontinue the business of bell-founding in Troy or procure it to be done in the name of some other person. He was absolutely prohibited from the use of his own name in his own business in any way." But the court ruled that "every man has the absolute right to his own name in his own business, even though he may interfere with or injure the business of another bearing the same name, providing he does not resort to any artifice or contrivance for the purpose of producing the impres sion that the establishments are identical, or do any thing calculated to mislead." Thus the right of one to the free and unrestricted use of his own name in a business enterprise is so strong that his right is not impaired even if it operate an infringement of a trademark, so that no artifice be resorted to for the purpose of deceiving the public, notwithstanding the "owner's right of property in it is as complete as that which he possesses in the goods to which he attaches it." Derringer v. Plate, 29 Cal. 293; Sohier v. Johnson, 111 Mass. 238; Holmes v. Mannf. Co., 37 Coun. 278. In Browne's Law of Trade-Marks (2d ed.), in the course of his treatment of good-will, he says: "Courts of equity will protect a party in the use of a name of an inn, hotel or other place of business, when the sign is simulated. * * * If a man creates a reputation for his business

which he both owned and occupied, and which he had theretofore used continuously while proprietor of the hotel he had leased, and up to the date of its surrender, it being a trade name. On the other hand, the contention of the defendant was that the name was a mere designation of the building in which the business as first established was conducted, and that it attached to the building at the termination of the plaintiff's lease, and passed to him by his purchase thereof from the plaintiff's lessor, it constituting a part of the goodwill of said property and establishment.

Denying the latter proposition the court said: "A person may have a right, interest or property in a particular name which he has given to a particular house, and for which house, under the name given to it, a reputation and good-will may have been acquired, but a tenant, by giving a particular name to a building which he applies to some particular use, as a sign to the business done at that place, does not thereby make the name a fixture to the building and transfer it irrevocably to the landlord." Thus a clear distinction was taken by the California court between the reputation a name or appellation gives to a certain business locality, and which adheres to it, without any reference to the proprietor of the establishment personally, and the designation of a name for a locality at which a certain business is carried on, and which is not impersonal and does not attach to the property, but remains subject to the control of the proprietor. The court, in treating of this distinction, said: "Defendant's claim to protection, so far as his right results from the good-will acquired for the name while it was applied exclusively to the leased premises, may not be maintainable, [yet plaintiff] is entitled to protection in the exclusive use of the name as proprietor of the new house." Had the name of that establishment formed an element of the good-will of the hotel business while it was being conducted on the leased premises by the plaintiff, it would, under all of the authorities, have passed to the landlord at the termination of plaintiff's lease, and by his conveyance to the defendant, but as it was rather a personal perquisite of the proprietor while lessee, and not an impersonal ingredient of his business, it did not pass to the landlord but remained subject to the control of the lessee at the termination of the lease.

it is as the keeper of some particular house at a known location, and it is piracy to draw off the custom of his friends or customers who have identified him with the name of his house. It is a personal right. By giving a particular name to a building, as a sign of the hotel business, a tenant does not thereby make the name a fixture to the building and the property of the landlord upon the expiration of the lease." §§ 528, 529. Clearly such name or appellation of an hotel is not an incident of good-will, as good-will exclusively appertains to a given and designated locality and becomes a fixture of the leased premises, and at the expiration of the lease it passes to the landlord. This is conclusively shown by the author's subsequent observations, viz. : "One may consent to the employment of his name as that of a place of refreshment, but if such consent be purely gratuitous, or unless there is some valid agreement binding upon the party who gives his consent, he may withdraw it at pleasure and enjoin its further use." But the argument in favor of such a withdrawal of a business name is strengthened by the fact that the author only had in contemplation trade names or fictitious names, such as St. Charles, St. James and Hotel Royal, which any one is free to use, for such a name might pass with a sale of the hotel business, and be changed at the caprice of the purchaser. This distinction makes it clear that the employment of one's own name to designate his place of business cannot be considered as an element of good-will, for if so, following the principles just announced, it would necessarily result in its loss to the person possessing it, as at the termination of the business it would pass to the proprietor of the leased premises. Having conveyed it to a successor and we have ascertained that the disposition of good-will is matter of contract-he could not thereafter come in competition with his vendee without violating his obligation of warranty. Therefore we conclude with Mr. Browne that while the employment of one's own name to designate his place of business may be transferred in like manner as good-will, yet if it be done by a purely gratuitous contract-in the absence of any valid and enforceable agreement for a consideration-he may withdraw it at pleasure. The conclusion is that such an employment of his own name in business forms no part of the good-will, but on the contrary it partakes of characteristics of a trade-mark, and may be classed as a quasi trade-mark, of which Mr. Browne says: "It should be borne in mind that a trade-mark carries the idea of a man's personality, like his ordinary autograph, and therefore preserves its essential characteristics wherever it may go. This is not so with quasi trade-marks, as the name of an hotel or shop of trade." Browne Law TradeMark (2d ed.), § 90. The distinction between trade names and trade-marks is stated as follows, viz.: "A trade-mark owes its existence to the fact that it is actually affixed to a vendible commodity [§§ 52, 382, 384], whereas a trade name is more properly allied to the good-will of the business [§ 91]." In Woodward v. Lazar, 21 Cal. 449, defendants were restrained from using the name "" What Cheer House as the name of an hotel in the city of San Francisco. Woodward, plaintiff, first erected au hotel building on a leased premises, and gave it that name. During his occupancy as tenant he purchased and built on the adjoining lot another hotel edifice and occupied it also. Afterward he surrendered the leased premises and occupied the second, and continued to conduct an hotel business on his own premises under the name and style of "What Cheer House." Subsequently the defendants purchased the premises first described and conducted thereon an hotel under the original name " What Cheer House." In that case the contention of the plaintiff in injunction was that the name belonged to him as the proprietor of the hotel last established, and

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Our conclusion is that on reason and authority the case is with the plaintiff; that the name given to a building in which an hotel is kept, which contains the name of the proprietor, does not constitute an element of good-will though it may tend to enhance the business reputation of the place or situs of the business establishment, which is an ingredient of good-will; that while under the authorities such a name is a marketable article and a proper subject of sale, yet it must be expressly understood in the act of sale, and if no consideration be paid same may be subsequently recalled. Such transactions, being esteemed to be in restraint of trade, are disfavored in commercial dealings. In this case there is some proof of injury sustained by the plaintiff on account of the defendant's improper use of his name, yet we are disinclined to rest a judgment upon it, because we are satisfied the defendant acted fairly and honestly, and under a mistaken belief that he had acquired a right to employ the plaintiff's name as he did. But we are clearly of the opinion that plaintiff's injunction should be maintained and perpetuated. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed, and it is further ordered and decreed that there be judgment in plaintiff's favor and against the defendant, perpetually enjoining and restraining the latter from using or employing the name "Hotel Vonderbank or "Vonderbank Hotel" as the name or style of an hotel or restaurant, at the former site of such es

tablishment as that kept and operated by the plaintiff. It is further ordered and decreed that plaintiff's demands for damages be rejected in toto and the defendant be taxed with the costs of both courts.

BREAUX, J., having a personal interest in the question recuses himself.

NEW YORK COURT OF APPEALS ABSTRACTS.

ADVERSE POSSESSION-COLOR OF TITLE-INSTRUCTIONS. (1) A deed to a tenant in possession from one who has no title to the land is void, and insufficient as a basis for adverse possession. (2) In ejectment the court charged the jury that they could not find for plaintiff on his alleged paper title. Defendant afterward requested the court to charge that the description contained in the deed to plaintiff did not include the locus in quo, which the court refused, and charged that the description did include the locus in quo. Held, that this implied change in the instruction was of defendant's procurement, and no ground for reversal of a judgment against him. Second Division, March 8, 1892. McRoberts v. Bergman. Opinion by Landon, J. 11 N. Y. Supp. 108, affirmed.

CONVERSION--EVIDENCE. PLEADING-AMENDMENT -APPEAL.-(1) Prior to an assignment for creditors the sheriff levied on and sold part of the stock of the assignors under executions against them. Afterward, and while a surplus realized from the sale was in the sheriff's hands, and he was in possession of the unsold part of the assigned stock, other executions, which he asserted should be satisfied out of the surplus and the unsold portion of the stock, came into his hands. To relieve the stock from the levies the assignee paid the sheriff a sum of money which, with the surplus then in his hands, made up the amount of these other executions, whereupon the sheriff released the levy. The assignee protested at the time that he made such payment as a substitute for the goods; that it was merely a deposit to procure a release of the levy, and that he did not intend to relinquish his claim that the estate was entitled to the goods. Held, that there was not a conversion by the sheriff of the goods or of the surplus. (2) Where a complaint alleges a conversion, and the evidence tends to show a cause of action for money had and received, plaintiff's request to amend the complaint so as to conform to the proofs will be denied, as such amendment would entirely change the cause of action. (3) The court properly denied plaintiff's request to amend the complaint so as to conform to the facts proved, where those facts pointed to a cause of action for money had and received. (4) After the court had decided to dismiss the complaint, plaintiff asked to be permitted to withdraw a juror, so as to permit a motion to be made at Special Term to amend the complaint, but the request was denied. Held, that after an affirmance by the General Term of the judgment dismissing the complaint, the Court of Appeals will not review the act of the trial court in denying the request, it being largely within his discretion. Second Division, March 8, 1892. Freeman v. Grant. Opinion by Parker, J. 8 N. Y. Supp. 912, affirmed.

INSURANCE-WAIVER OF CONDITIONS-COMPROMISE -FRAUD-INSURABLE INTEREST. (1) An insurance policy provided that it should be void if without notice to the company, and permission therefor in writing indorsed on the policy, the "interest of the assured be any other than the entire, unconditional and sole ownership," and that "no agent has any power to waive any condition of this policy." The legal title to the property was in the son of the assured, and assured

was in possession under a contract that he should have the use of the property during his life, on condition that he keep it insured, in repair and pay the taxes, of which assured, when he made his application, informed the company's general agent. Held, that the evidence was sufficient to sustain a finding that the condition of the policy as to title of the property was waived. (2) Where the adjuster of the company, after a loss under such policy, represented to assured that the policy was void, because the title to the property was not in him, whereupon assured settled with the adjuster for about one-half of the amount due on the policy, the settlement will be set aside as procured by fraud, though the adjuster acted in good faith. 2 Pom. Eq. Jur., $$ 847-849; Will. Eq. Jur., pp. 68, 69; Busch v. Busch, 12 Daly, 476; Wheeler v. Smith, 9 How. 55; Cook v. Nathan, 16 Barb. 342; Boyd v. De La Montagnie, 73 N. Y. 498; Jordan v. Stevens, 51 Me. 78; Insur

ance Co. v. Bowes, 42 Mich. 19; Freeman v. Curtis, 51 Me. 140. (3) In such case, where plaintiff before suit, and in his complaint, offered to return the draft, and on the trial produced it in court, to be subject to the decree, the tender to return what he had received was sufficient. (4) One in possession of property for life under a verbal agreement with the owner to pay the insurance, repairs and taxes, has an insurable interest therein. A person may insure against his liability with reference to a certain property as well as his interest therein. Insurance Co. v. Chase, 5 Wall. 509513; National Filtering Oil Co. v. Citizens' Ins. Co., 106 N. Y. 535-541; 3 Kent Com. (6th ed.) 276. The test of insurable interest is whether an injury to the property or its destruction by the peril insured against would involve the assured in pecuniary loss. Wood Ins., § 282. Thus a common carrier may insure goods intrusted to him to their full value without regard to his liability to the owner. Crowley v. Cohen, 3 Barn. & Adol. 478; Railway Co. v. Glyn, 1 El. & El. 652. So may a warehouseman, although liable to the owner only for his own negligence. Waters v. Assurance Co., 5 El. & Bl. 870; Stillwell v. Staples, 19 N. Y. 401; De Forest v. Insurance Co., 1 Hall, 94. So may a charterer of a vessel, who is liable to pay its value in case of loss, or has contracted to insure it against usual risks. Oliver v. Greene, 3 Mass. 133; Bartlet v. Walter, 13 id. 267. Insurers of a building have an insurable interest therein which they may reinsure. New York Bowery Ins. Co. v. New York Ins. Co., 17 Wend. 359. And a tenant who has agreed verbally to keep the demised property insured is liable to the lessor for a breach of that agreement, and has an insurable interest in the property to the extent of the amount agreed to be insured. Lawrence v. Insurance Co., 43 Barb. 479. Other illustratious of this rule are to be found in Herkimer v. Rice, 27 N. Y. 163; Kline v. Insurance Co., 7 Hun, 267; 69 N. Y. 614; Waring v. Insurance Co., 45 id. 606; May Ins., chap. 6; 1 Wood Ins., chap. 8. The principle upon which these cases all rest is that there is a possible liability arising out of the peril insured against, and that creates an insurable interest. Under the contract with his son the plaintiff had agreed, among other things, to keep the property insured, and this agreement gave him a right to insure the buildings in his own name to their full value. The defendant contends that as the contract with his son was by parol, and hence void, the plaintiff had no interest in or liability toward the insured property. This proposition might have some weight if the insurance was upon the title or interest of the plaintiff as life-tenant, or if there had been representations on the part of the plaintiff that such was the interest intended to be insured. But we think it has no application to the case made by the evidence. The plaintiff, while in the unquestioned enjoyment and possession of the property, could not deny his liability under the con

tract with his son to insure, and under that agreement, so far as is disclosed in this action, he would have been liable for the loss of the buildings if he had failed to insure them. The defendant, if it had notice of the relation which plaintiff bore to the property, cannot deny the legality of its contract, although it may be that the plaintiff could not have enforced against his son his right to use the property for life had that been denied. Second Division, March 8, 1892. Berry v. American Cent. Ins. Co. of St. Louis. Opinion by Brown, J. 8 N. Y. Supp. 762, affirmed.

MARRIAGE-LIABILITY OF WIFE'S PROPERTY FOR FAMILY SUPPORT.-Act of 1860, chapter 90, charging the property of a married woman with such debts as may have been contracted by her, as her husband's agent, for the support of herself or her children, is not self-executing, and the wife's property cannot be seized upon an execution against the husband, in the absence of an adjudication that such property is liable for the debt. March 1, 1892. Edwards v. Woods. Opinion by Andrews, J. 15 N. Y. Supp. 159, mem., affirmed.

PATENTS-LICENSE-MASTER AND SERVANT-WRONGFUL DISCHARGE-PLEADING.-(1) A contract provided that a corporation should employ a certain patentee as its general manager for ten years, subject to termination by either party on one year's notice, or by the patencee's death or inability to act, and that, in the event of a termination of the agreement, the corporation should have a license to use his patents on payment of a certain royalty. Held, that a wrongful discharge of the patentee by the corporation was a mere breach of contract, and did not terminate the agreement so as to render the corporation liable to pay the royalty. Johnson v. Signal Co. (N. Y. App.), 29 N. E. Rep. 964, followed. (2) In an action to recover such royalty the complaint alleged that "the said contract was terminated by said company, and the said [patentee] was notified by the defendant to that effect, and that his services would be no longer accepted by the said defendant after said 1st day of March, 1888." The answer did not deny these allegations, but admitted that on March 1, 1888, the defendant dismissed [the patentee] from its employ." Held, that such answer did not admit that the discharge of the patentee terminated the contract. Second Division, March 15, 1892. Miller v. Union Switch & Signal Co. Opinion by Laudon, J. 13 N. Y. Supp. 711, reversed.

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PLEDGE-CARE OF GOODS-DUTY OF PLEDGEOR.— Where the pledgee of goods, to whom a,warehouse receipt has been delivered, does not claim or exercise his right to the exclusive and absolute control of the goods pledged, but permits the pledegor to have free access to them, it is equally the duty of the pledgeor to care for them, when he knows they are in danger, and make the damages as little as possible, and if he fails to do so he cannot hold the pledgee responsible for the loss. Second Division, March 8, 1892. Willets v. Hatch. Opinion by Bradley, J. 11 N. Y. Supp. 73, affirmed.

RAILROAD ACCIDENT AT CROSSING-CONTRIBUTORY NEGLIGENCE-INSTRUCTIONS.-(1) In an action against a railroad company for personal injuries, it appeared that while attempting to drive across defendant's track at a street crossing, plaintiff was struck by a train going west, the approach of which was obscured by a train going east. Plaintiff had been waiting to cross while the east-bound was passing, and seeing the gate go up attempted to cross, but was shut in on the track by the lowering of the gate on the opposite side. There was evidence that a mound of rocks fifteen or twenty feet high stood by the track, obstructing plaintiff's view of the approaching train, and that it was

dark when the accident occurred. Held, that the question of contributory negligence was for the jury. (2) In such case there was evidence that before the injury plaintiff, a coachman, was a good workman and had a good memory; that afterward he was unable to do the work he did before "by one-half;" that he was forgetful; that he was lame, and was troubled with pain in his hip; that the muscles of his hip were contracted. Held, that there was no error in instructing the jury that if they found defendant liable plaintiff was entitled to recover for the pain he endured, both present and future. (3) In such case the court refused to charge that "defendant was not bound either to ring its bell or blow its whistle." Held, that as plaintiff did not seek to hold defendant liable because of a failure to ring a bell or sound a whistle the instruction was properly refused. Second Division, March 8, 1892. Kane v. New York, N. H. & H. R. Co. Opinion by Follett, C. J. 9 N. Y. Supp. 879, affirmed.

REAL ESTATE BROKERS-COMMISSIONS-CONSIDERATION.-(1) In an action for commissions alleged to be due for procuring a lease of certain land, the property of a city, it appeared that plaintiff went to the city comptroller, who had charge of the renting of the property, and obtained a proposed rental and a diagram thereof; that plaintiff then called defendant's attention thereto; that they together called on the comptroller, who during the negotiation distinctly informed them that the city would pay no commissions, and that if any were to be paid defendant must pay them. According to plaintiff's evidence defendant, during negotiations for the lease, treated plaintiff as in his employ, and promised to pay him a commission. Held, that a motion to dismiss the complaint was properly denied, since such evidence showed a consideration for defendant's promise. (2) Where defendant denied that plaintiff performed any services pursuant to employment by defendant, or at his request, and the evidence on that point was conflicting, it was error for the court to charge that if defendant stated to plaintiff, before the lease was obtained, that if he obtained the lease he would pay the commission, plaintiff was entitled to recover, since without such employment, or the performance of some service at the request of defendant, there was no consideration for defendant's promise. Second Division, March 8, 1892. Myers v. Dean. Opinion by Bradley, J. 10 N. Y. Supp. 532, reversed.

SHERIFF--WRONGFUL ATTACHMENT-FRAUDULENT SALES-EVIDENCE.-(1) In an action by a recent buyer of a stock of merchandise against a sheriff for wrongful seizure thereof under an attachment obtained by creditors of the seller, the under-sheriff who made the levy cannot testify as to statements then made to him by the seller, unless the evidence shows that the sale was a joint scheme for defrauding such creditors. (2) Where the buyer took immediate charge of the store and the merchandise, the fact that he allowed the seller to retain his tenaucy of his house, and keep an office off of the store, is not such evidence of fraud as will authorize the introduction of such testimony. March 8, 1892. Flannery v. Van Tassel. Opinion by Gray, J. 16 N. Y. Supp. 741, affirmed.

VENDOR AND PURCHASER-DEFECTIVE TITLE-PENDING ACTION.-A purchaser may not refuse to accept title because of the pendency of an action to set aside for fraud a deed to one of the vendor's predecessors in title, where the vendor is not a party to such action, and there is no averment in the complaint therein that he participated in such fraud, or had any knowledge thereof, 2 Revised Statutes, page 137, section 5, providing that fraud shall not vitiate the title of a purchaser for value, unless such purchaser had previous notice of

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