alleging that he had physical possession of the property, that he had tendered it to the company and demanded the cash surrender value, which demand had been refused; and he asked for a decree requiring that the cash surrender value be paid to him as receiver. On a motion for judgment on the pleadings, the Special Term ruled that such a judgment could not be had, and found for the defendants. See Maurice, Receiver, etc., v. Travelers' Ins. Co., 121 Misc. Rep: 427.1 The defendants requested a direction in the judgment then entered that the policy itself, which had been delivered to the receiver, be returned to them. The court at Special Term refused to make this direction for want of power, and asserted in a memorandum that such question had not been considered as to whether or not the defendant, the petitioner here, is entitled to a return of the policy. After the judgment dismissing the receiver's complaint had been had, a new application to the court which appointed the receiver was made for a return of the policy to the beneficiary. This motion was denied by the City Court. The Appellate Term affirmed this order. The question of the right to a return of a policy acquired by a receiver in supplementary proceedings under the facts recited is new, but the principles upon which a receiver's title to property arises would seem to indicate that he has no present title to any property in the policy on the life of a judgment debtor, where there is a third party beneficiary, even with a right in the policy holder to change such beneficiary. The Court of Appeals has lately held, in Hanna v. Stedman, 230 N. Y. 326, 130 N. E. 566, and in Schoenholz v. New York Life Ins. Co., 234 N. Y. 24, 136 N. E. 227, that the policy itself is not property when merely in the possession of one not entitled to enforce it. The provisions of the contract itself, it is pointed out, do not make it such property as would give it the character of a res upon which a foreclosure of the rights of the possessor could be had against the rights of an absent beneficiary. The decision in the action between these parties in the Supreme Court action in which the complaint was dismissed and judgment against the receiver given finds necessarily that there was no present property right or interest therein held by the receiver. He has no right under that judgment's rule to its present cash surrender value, which is its only provision capable of producing property. The petitioner, however, may assign, borrow, or consent to a change of beneficiary if she have possession cf the policy, and since the sole interest in the nature of property is in the petitioner, and none being possible of assertion at the present time in the receiver, as found by the judgment herein referred to, which was not appealed from, it would seem proper that the evidence of a tangible right should be in the hands of the person capable of effectually exercising it, rather than to continue the possession in the receiver because of the possibility of the wife's predeceasing the policy holder and his transfer to himself of the beneficial ownership. 1 201 N. Y. S. 369. (211 N.Y.S.) We think, therefore, that the determination of the Appellate Term and the order of the City Court should be reversed, and an order made granting the petitioner's motion, directing the receiver to return the policy to the beneficiary, with $10 costs and disbursements to the appellant in this court and in the Appellate Term. Order filed. All concur. (214 App. Div. 192) LEVEY V. MINOTT. (Supreme Court, Appellate Division, First Department. October 30, 1925.) 1. Breach of marriage promise 23-Insanity of promisor shown. In action for breach of marriage promise, evidence that defendant was insane, and had been committed to institutions for treatment of insane at least 10 times in 17 years, held to render verdict and judgment for plaintiff error. 2. Breach of marriage promise 23-Evidence held insufficient to show promise of marriage. In action for breach of marriage promise, evidence held insufficient to show promise. 3. Evidence 571(1)—Jury held not entitled to disregard testimony con cerning plaintiff's chastity. In action for breach of marriage promise, defended on ground of plaintiff's unchastity prior to promise, jury had no right to disregard medical testimony strongly tending to establish plaintiff's unchastity. Appeal from Supreme Court, New York County. Action by Belle Levey against Frederick S. Minott for breach of marriage promise. From a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals. Judgment and order reversed, and new trial ordered. Argued before CLARKE, P. J., and DOWLING, FINCH, and McAVOY, JJ. Choate, Larocque & Mitchell, of New York City (Clarence Blair Mitchell, of New York City, of counsel, and William R. Bayes, of New York City, on the brief), for appellant. Joseph J. Myers, of New York City (Charles A. Winter, of New York City, of counsel, and Thomas I. Sheridan, of New York City, on the brief), for respondent. MCAVOY, J. Judgment was entered in this suit for the plaintiff for $7,500. The action is for breach of promise of marriage. It was plaintiff's assertion that she had been seduced by the defendant under promise of marriage on December 16, 1920. The defense was a denial For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes of the promise, and allegations that both at the time of and prior to the alleged promise the defendant was of unsound mind, and incapable of entering into a marriage contract, and also that prior to the promise of marriage the plaintiff was not of chaste character, of which unchastity of plaintiff defendant had no knowledge. There was a counterclaim. against plaintiff for having obtained cash in the sum of $400 from the defendant without rendering any services, which money was said to have been obtained by reason of the defendant's mental condition and his inability to comprehend the nature of the transaction with the plaintiff. The defendant says that the complaint should have been dismissed at the close of the whole case because the undisputed evidence established. conclusively that defendant was wholly insane and incapable of entering into any contract whatever at the time of the alleged promise of marriage and prior thereto, and at the very time of the alleged promise proceedings were under way to have him committed to an institution for mental treatment, and besides, he asserts, the complaint should have been dismissed because the testimony of disinterested witnesses and the surrounding circumstances completely discredit plaintiff's story and negative the theory that defendant, although insane, proposed marriage to or had any meretricious relations with plaintiff. A ground for dismissal is also said to exist in that plaintiff's own version as to the alleged contract of marriage failed to show a reciprocal promise upon her part, and defendant's promise to marry plaintiff, it is said, was made as an inducement to plaintiff to have sexual relation with defendant, which rendered the promise illegal. Finally the resultant judgment below is attacked because the facts and testimony are alleged to show that plaintiff had not been of chaste character for a long time prior to the alleged promise of marriage, and subsequent thereto, and that defendant had no knowledge of such dereliction on plaintiff's part. We do not believe that the evidence gives defendant a right to a dismissal of the complaint, but we are persuaded that the judgment ought to be reversed as lacking in credible proof to support it. Plaintiff's narration of the promise, although not containing a specific promise on her part mutually accepting the defendant, nevertheless gives circumstances and details of the event from which it could be implied that she accepted the proposal. Nor can it be said that the promise was made as an inducement for sexual relations only, as the occasion of the promise and the immediate following relations were not necessarily interdependent, although the jury might have found them so as a fact. [1] As to the question of the plaintiff's chastity, she vehemently denied both the direct testimony that she was unchaste and the implication arising from the medical testimony that she had been; but it seems to us that upon the uncontradicted proof the judgment should be reversed, because such proof demonstrates that defendant was insane at the time of the alleged promise of marriage, and of such a weak mental character (211 N.Y.S.) that any promise made by him to perform any sort of contract would have been invalid. He has been committed to institutions for treatment of the insane at least 10 times, beginning in 1905 and as late as December, 1922. One of the medical experts called on behalf of defendant described his malady as "manic depressive insanity," the characteristics of which are that attacks recur at regular intervals, lasting for several months, while at other times the patient is normal, and while the condition is accompanied by delusions, it also distorts and warps every mental process, and during the period of "manic depressive" condition the patient is not able to realize the meaning and significance of words or acts, even when conscious of the words and the acts themselves. His insight is destroyed, he is easily led, and his emotional equilibrium is unsettled. This manic depressive malady differs from other forms of insanity, because in other forms acts not directly connected with the particular delusion may be rational and valid. That he suffers and has suffered from this malady the evidence leaves no doubt. The overwhelming proof indicates that this was the nature of defendant's affliction at the time of the alleged promise of marriage, and a verdict to the contrary by the jury flew in the face of this proof, and was evidently inspired by considerations other than a review of the evidence. [2] The proof shows, too, that the alleged promise is such a fantastic tale that it ought to have been discredited in a jury's mind by the very nature of it. This woman of mature age had been engaged in the business which defendant owned for 13 years, but had never met him, except casually. He was of a different race, religion, and walk in life, and 23 years older. She had never received a present from him prior to this meeting in December, 1920. She had never written to him, nor he to her, nor had she ever had social relations with him or his family. He knew nothing of her family history. To believe that, after spending less than two hours in her company, he promised marriage to her, and seduced her within a few minutes after they were first alone, is to give rein to credulity beyond that which ought to be given even by a jury. [3] As to the plaintiff's previous chastity, the medical testimony indicates almost preponderantly that it was mythical, and while the jury might not have believed Fourette, who testified that he was her paramour, they should not have disregarded this medical proof. Upon the proof of defendant's insanity and the lack of probability of plaintiff's own story, the verdict is totally against the weight of the evidence as one reads it, and the judgment rendered thereon should be reversed. Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide the event. Order filed. All concur. (125 Misc. Rep. 764) LUXOR CAB MFG. CORPORATION v. LEADING CAB CO., Inc., et al. (Supreme Court, Special Term, New York County. October 13, 1925.) 1. Trade-marks and trade-names and unfair competition 17-Color combination used as a distinguishing mark for goods may not be used by competitor on same class of merchandise. While generally no one has a monopoly of a color, yet, where a merchant uses a certain color combination as a distinguishing mark for his goods, no other person may use it on same class of merchandise with design to market his goods as those of his competitor. 2. Trade-marks and trade-names and unfair competition 70(2)—Equity will regard interests of consumer, even in absence of active element of deception by imitator of another's trade-mark. Rule that, where a merchant uses a certain color combination as a distinguishing mark for his goods, no other person may use it on same class of merchandise with a design to market his goods as those of his competitor, is not merely to protect original trader, but to safeguard consumer, and court of equity will regard latter's interests, even in absence of an active element of deception by imitator. 3. Trade-marks and trade-names and unfair competition ~70 (2)-Regard had to circumstances in determining likelihood of deception between taxicabs of same color combination. In applying test of likelihood of deception between defendants' taxicabs, which were of same color combination as plaintiff's, regard must be had to circumstances under which intending users hire such vehicles. 4. Trade-marks and trade-names and unfair competition 57—Similarity is true test of infringement of a trade-mark. Similarity, and not identity, is true test of infringement of a trade mark. 5. Trade-marks and trade-names and unfair competition 84-Taxicab company entitled to protection against unfair competition in use of its combination, though details thereof were not original. Even though some of details which taxicab company was employing in its scheme to distinguish its vehicles from those of its competitors were not original, it will nevertheless be entitled to protection against unfair competition in use of its combination. 6. Trade-marks and trade-names and unfair competition 84-Taxicab owners, using color combination of discontinued make, entitled to injunctive relief against later users of same make-up. Even though color combination of taxi cabs was similar to that of a discontinued make, owners will nevertheless be entitled to injunctive relief against unfair competition by later users of same make-up. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |