Chapman and Neal cases in the United States Supreme Court and the Hennequin Case in the Court of Appeals. The action was for the conversion of bonds and moneys collected upon coupons, which were transferred to defendant, the agent and broker of plaintiff, under an agreement that they should be held subject to the order of the plaintiff, the coupons to be collected by defendant for the account of plaintiff. It was claimed that the defendant held the bonds and proceeds of the coupons in a "fiduciary capacity" under the bankruptcy act, and fraudulently transferred them, and the debt was not therefore barred by his discharge in bankruptcy. The court held to the contrary, however, saying: "The complaint alleges that he received the bonds 'as agent and broker and in a fiduciary capacity,' and upon an express written agreement to return them on 10 days' notice. The referee finds that they were received in a fiduciary capacity upon the terms of the agreement. The affidavits and the evidence show no other or different trust or fiduciary relation than such as may be said always to exist in cases of agency. In every such case there is an element of trust and confidence so that a breach of duty may be said to be a breach of trust, but the agent is nevertheless not a fiduciary within the meaning of the bankruptcy act." Then followed a discussion of the question of fraud. And, again, in 1891, the Court of Appeals, in a case arising under the bankruptcy act of 1867, involving the question of "fiduciary capacity," in Mulock v. Byrnes, 129 N. Y. 23, 29 N. E. 244, followed the former decisions. referred to above, and held that this term did not apply to cases of implied trusts, but only to those technical trusts which were expressly constituted by the parties. The cause of action was for the failure of an agent to pay over to his principal rents collected by him. The court considered and quoted from the cases so followed in both the United States Supreme Court and the Court of Appeals. The language of the present bankruptcy act of 1898 as to "fiduciary capacity" is not materially different from that of the act of 1867, and the same rule of construction should be applied. In this case the defendant was a naked bailee of the moneys, under an express agreement to keep safely and pay over on request. He was not acting in a "fiduciary capacity" under the bankruptcy act, and his discharge therefore released him from this debt or claim, and the . plaintiff was not entitled to recover. The nonsuit was properly granted. All concur, except MCLENNAN, P. J., who dissents. MCLENNAN, P. J. (dissenting). Upon the facts which are recited in the prevailing opinion, and which, we will assume, were properly established upon the trial of this case, the defendant was guilty of the crime of larceny in having appropriated, under the circumstances, plaintiff's money to his own use. Section 528 of the Penal Code provides: * * Subdiv. 2. Having in his possession, custody or control any money appropriates the same to his own steals such property and is guilty of larceny." "A person as bailee use * * * 串 串 Clearly upon the facts recited in the prevailing opinion the defendant was guilty of having stolen plaintiff's money. We think no well-considered authority can be found which sustains the proposition that and 140 New York State Reporter under such circumstances such guilty party may avoid liability to the person whom he has thus wronged by filing a voluntary petition in bankruptcy and obtaining a discharge. The provisions of the bankruptcy law were not in my opinion intended to permit such a palpable wrong to be successfully consummated. If the defendant in this case had taken from plaintiff's till $150 without the knowledge or consent of the plaintiff, he would only have been guilty of larceny, and yet it would hardly be contended that his liability to the plaintiff for such act might be discharged by filing a petition in bankruptcy and obtaining his discharge thereon. And yet he was only guilty of the crime of larceny. Under the facts assumed to have been proven in the case at bar, the defendant was equally guilty of such crime. seems to me absurd to say that he may avoid liability to the person whom he has wronged by any provision of the bankruptcy act. If the views expressed in the prevailing opinion are correct, then it follows that one person may obtain the money of another by stealing the same, and then be relieved from liability for such theft by a discharge in bankruptcy. However fine spun may be the argument of some of the cases to which attention has been called, as to what is included or meant by "fiduciary capacity," we think no case can be found where it has been held that, where a person obtains the property or money of another under such circumstances as to constitute grand larceny, the obligation to restore such property or repay such money has been abrogated by discharge in bankruptcy. I think the judgment and order appealed from should be reversed, and a new trial granted, with costs to the appellant to abide the event. WESTCOTT CHUCK CO. v. ONEIDA NATIONAL CHUCK CO. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) 1. PROPERTY-INVENTION-RIGHT OF INVENTOR. Independent of letters patent, an inventor has by the common law an exclusive property in his invention until, by publication, it becomes the property of the general public. [Ed. Note. For cases in point, see Cent. Dig. vol. 40, Property, § 2.] 2. TRADE-MARKS AND TRADE-NAMES-RIGHT TO PROTECTION. Irrespective of any question of a right protected by a patent, a party' may not always appropriate to his own use in his business a label in prior use particularly appropriated by another where such act deceives the ordinary buyer. [Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 64.] 3. PATENTS-IMITATION OF ARTICLE AFTER EXPIRATION OF PATENT-EFFECT. One may imitate a perfected article of another already on the market where the patents thereof have expired so that the latter has no longer an exclusive property therein. 4. TRADE-MARKS AND TRADE-NAMES INFRINGEMENT DAMAGES EVIDENCE. Plaintiff and its predecessor in business had manufactured for about 30 years drill chucks of two types, known as "Little Giant Improved" and "Little Giant Double Grip." To designate the various sizes, letters and numbers were used. After the expiration of the patents, defendant procured some of the chucks and proceeded to duplicate them, and placed thereon the year of manufacture, its own name, and the numerals used by plaintiff. Defendant adopted the advertising matter of plaintiff. Held, that plaintiff was not entitled to damages on the ground that defendant deceived the public into believing that the article sold by it was the article of plaintiff, without proof that such deception occurred, and evidence that defendant undersold plaintiff was not sufficient. Chester and Sewell, JJ., dissenting. Appeal from Special Term, Madison County. Action by the Westcott Chuck Company against the Oneida National Chuck Company. From a judgment for plaintiff awarding damages and an injunction, defendant appeals and brings up for review so much of an order as granted or continued a temporary injunction, and the interlocutory judgment as modified, and the order referring the cause to assess damages, and an order approving the form of the final judgment. Reversed. Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ. T. A. Devereaux, for appellant. COCHRANE, J. Plaintiff has recovered an interlocutory judgment which restrains the defendant as follows, viz.: "From the manufacture and sale of the two types of drill chucks known as 'Exhibits 3A to 8A,' inclusive, and 'Exhibits 15B, 16B, 17B, 19B and 20B,' in the manner and form and as stamped by the defendant according to the evidence in the case and from advertising the said two types of drill chucks in the manner and form herein stated in this case. The injunction is not to be construed as preventing the defendant from manufacturing and selling the said two types of drill chucks according to the mechanical device and in the form and shape in which they were manufactured prior to the expiration of the patents, nor in the use of its name, but they are to so manufacture, stamp, and advertise said products to the public so that the public and intending purchasers will not be deceived into believing that the defendant company, located at Oneida, N. Y., is the plaintiff company, and so that they will not be deceived into believing that the products offered for sale by the defendant company are the products of the plaintiff company." Such interlocutory judgment also provides as follows: * "It is adjudged and decreed that each and every of the acts committed by the defendant as herein specified, as well as those disclosed in the evidence, were carried on and conducted for the purpose and with the intent on the part of the defendant of carrying on and conducting an unfair and unlawful competition with the plaintiff the effect of which has been and if continued will injure the plaintiff's trade and business and is a fraud upon the public and the plaintiff." And also: "That the Westcott Chuck Company recover from the defendant, the Oneida National Chuck Company, the damages occasioned by the various wrongful acts herein decreed and that a referee be appointed by the Supreme Court on notice to the defendant to take and state and assess the damages sustained by the plaintiff on account of the various wrongful acts herein referred to." An inspection of the interlocutory judgment discloses that some of the "acts committed by the defendant" as therein specified are harmless and lawful; and it is scarcely necessary to observe that many of and 140 New York State Reporter such acts "disclosed in the evidence" are clearly beyond criticism, and are not within the prohibition of the injunctive portion of said judgment, nevertheless they indiscriminately fall within the condemnation of said judgment as being "unfair," "unlawful," "a fraud upon the public and the plaintiff," and they are all by the express mandate of the said judgment made to constitute the basis of the damages which the plaintiff has sustained; and on the strength of such interlocutory judgment the referee appointed as thereby provided has awarded to the plaintiff for such damages the sum of $11,925.52, and plaintiff has recovered against the defendant a final judgment for that amount. As may be inferred from the portions of the interlocutory judgment above quoted, the purpose of the action is to prevent alleged unfair and fraudulent competition on the part of the defendant in the manufacture and sale of drill chucks. In approaching the consideration of the facts herein it is well to keep in mind as pertinent thereto certain distinguishing principles as declared by the courts. In Tabor v. Hoffman, 118 N. Y. 30, 23 N. E. 12, 16 Am. St. Rep. 740, Judge Vann said: "It is conceded by the appellant that, independent of copyright or letters patent, an inventor or author has, by the common law, an exclusive property in his invention or composition until by publication it becomes the property of the general public. This concession seems to be well founded and to be sustained by authority. Palmer v. De Witt, 47 N. Y. 532, 7 Am. Rep. 480; Potter v. McPherson, 21 Hun, 559; Hammer v. Barnes, 26 How. Prac. 174; Kiernan v. M. Q. Tel. Co., 50 How. Prac. 194; Woolsey v. Judd, 4 Duer, 379; Peabody v. Norfolk, 98 Mass. 452, 96 Am. Dec. 664; Salomon v. Hertz, 40 N. J. Eq. 400, 2 Atl. 379; Phillips on Patents, 333-341; Drone on Copyright, 97-139. As the plaintiff had placed the perfected pump upon the market without obtaining the protection of the patent laws, he thereby published that invention to the world, and no longer had any exclusive property therein. Rees v. Peltzer, 75 Ill. 475; Clemens v. Belford (C. C.) 14 Fed. 728; Short's Laws of Literature, 48." There is, however, another principle equally well established by modern decisions, that, irrespective of any question of a right protected by patent, a party may not always appropriate to his own use in his business a label or word or device in prior use and especially or particularly appropriated by another. The distinction is indicated in Cooke & Cobb Company v. Miller, 169 N. Y. 475, 62 N. E. 582, as follows: "In the absence of some restriction upon the defendants arising out of the patent law, as to which the record is silent and as to which the state courts have no jurisdiction, the defendants had the right to manufacture and sell the article in question, although it was similar in general appearance and made from the same material and upon the same plan as the article made and sold by the plaintiff. This proposition is not questioned, but what the plaintiff claims is that the defendants have wrongfully appropriated for use in their business a label or device which belonged to the plaintiff as its trademark, and so have invaded its property rights." The same distinction is recognized in Fischer v. Blank, 138 N. Y. 244, 252, 33 N. E. 1040, 1041, where it is said: "The true test, we think, is whether the resemblance is such that it is calculated to deceive, and does, in fact, deceive, the ordinary buyer making his purchases under the ordinary conditions which prevail in the conduct of the particular traffic to which the controversy relates. Franks v. Weaver, 10 Beav. 297; Amoskeag Man. Co. v. Spear, 2 Sandf. Ch. 599; Colman v. Crump, 70 N. Y. 573; McLean v. Fleming, 96 U. S. 245, 24 L. Ed. 828; Lawrence Man. Co. v. Tenn. Man. Co., 138 U. S. 537, 11 Sup. Ct. 396, 34 L. Ed. 997. No inflexible rule can be laid down. Each case must in a measure be a law unto itself." See, also, to the same effect, Day v. Webster, 23 App. Div. 604, 49 N. Y. Supp. 314; T. B. Dun Company v. Trix Manufacturing Company, 50 App. Div. 78, 63 N. Y. Supp. 333. Let us now consider the facts constituting the grounds of plaintiff's alleged grievance. For about 30 years plaintiff and its predecessor in business have been manufacturing drill chucks in the city of Oneida. These chucks included two general types known as "Little Giant Improved" and "Little Giant Double Grip," and each type in different sizes. To designate the various sizes, letters and numerals were used. Chucks as thus constructed were stamped thereon with these numerals indicating their sizes, with the words "Little Giant Improved" or "Little Giant Double Grip," as the case might be, with plaintiff's corporate name and place of business, with the date of the year of manufacture, and with the words "keep well oiled." Certain methods and devices connected with these chucks were protected by patents which expired in the years 1902 and 1903. The defendant, on the other hand, and its predecessor in business, have been constructing drill chucks for about 10 years in the city of Oneida. It has therefore been during that period a natural competitor of the plaintiff. After the expiration of plaintiff's said patents, defendant procured some of plaintiff's chucks in the market, took them apart, and proceeded to duplicate them in the chucks which it manufactured and sold. It did not, however, stamp thereon the plaintiff's name or the names of plaintiff's types "Little Giant Improved" and "Little Giant Double Grip," but it placed thereon the date of the year of manufacture, the words "keep well oiled," the same numerals as used by plaintiff to indicate the different sizes, and its own corporate name. Referring now in the light of these facts to the injunctive provisions of the interlocutory judgment above quoted, it is difficult to determine just what defendant is permitted to do and what it is commanded to refrain from doing. It may be urged with much plausibility that the injunction is too vague and indefinite, and should not for that reason be sustained. By the very terms of the injunction, resort must be had "to the evidence in the case," and not necessarily to anything found or determined therein in order to ascertain just what the defendant may or may not do. It is very clear, however, that the defendant is permitted to manufacture and sell "the said two types of drill chucks according to the mechanical device and in the form and shape in which they were manufactured prior to the expiration of the patents." In other words, the defendant is at liberty to imitate and use the products of the plaintiff precisely as they have been manufactured by the plaintiff in all of their details, save only as to the stamping and advertising of the same. And that the defendant has such right I think is very clear from the authorities above cited and many others. No secret method or formula has been purloined or patterns or forms surreptitiously or by underhanded methods acquired by the defendant, as was the case in Tabor v. Hoffman, 118 |