of which he could not reap"; that on April 9, 1905, the defendant notified the plaintiff that he had sold the farm and that plaintiff must vacate according to the agreement; that thereafter the plaintiff was removed therefrom by an order of the county court; that the defendant has refused to pay the plaintiff the value of crops planted by him thereon and the benefit of which he cannot reap, of the value of $1,000, for which judgment is prayed.

The complaint does not state a cause of action. The condition precedent to a cause of action is that the plaintiff should vacate on a notice of 30 days on a sale of the farm by the defendant. There is no allegation of compliance with this condition, as the rules of pleading require; on the contrary, the allegation is that the plaintiff was removed by an order of the county judge.

The proof was that the defendant sold the farm and on April 21, 1904, gave the notice of 30 days to the plaintiff, but he refused to vacate in the time limited, and was removed in June, 1904, by a final order in landlord and tenant proceedings taken against him by the defendant.

After the plaintiff had been removed from the farm he sent to the defendant the rent which had accrued up to the time of his removal and the defendant kept it. The learned trial judge submitted to the jury the question whether this was not a waiver of the refusal of the plaintiff to vacate on the notice, instructing them that if it was the plaintiff was entitled to recover. I own myself unable to understand what this all means. And how could receiving the rent that was due him be a waiver of anything by the defendant? The learned trial judge also permitted the plaintiff to recover the value of crops planted after the notice to vacate was given him, whereas the agreement limits him to crops planted before it was given. The case should have been dismissed. The trial by jury is by judge and jury, and the judge may not turn over to the jury the questions which are for him to decide.

The judgment and order should be reversed.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.

(121 App. Div. 352.)

PEOPLE ex rel. BRENNAN v. TILDEN, City Judge.

(Supreme Court, Appellate Division, Third Department. September 11, 1907.) 1. CORPORATIONS-PROCESS-SERVICE ON AGENT-SUFFICIENCY OF EVIDENCE. Evidence held insufficient to show that the person upon whom summons was served was not defendant company's agent.

2. SAME.

Under the express terms of Code Civ. Proc. §§ 2878, 2879, 2881, service of summons on a local agent and local treasurer of a casualty company was personal service on the company.

3. COURTS-CITY COURTS-PRACTICE-VACATION OF DEFAULT JUDGMENT-TIME FOR MOTION.

Under the express terms of Laws 1895, c. 751, p. 1599, § 137, where the time for appealing from a default judgment of the City Court of Hudson has expired, a motion to open the judgment is too late.

and 140 New York State Reporter

Certiorari by the people, on the relation of Michael E. Brennan, John Toth's administrator, against L. Royce Tilden, city judge, to review an order vacating a judgment for relator against the Continental Casualty Company. Order reversed.

The relator procured a judgment against the Continental Casualty Company in the City Court of Hudson upon the service of the summons upon one Martin L. Niver as the agent and local treasurer of such company. Such judgment was docketed in the county clerk's office of Columbia county, and a transcript filed in the county of New York. The City Court of Hudson is an inferior local court, and it is provided in section 137 of the act creating the court (chapter 751, p. 1599, of the Laws of 1895) that "the court shall have power upon five days' notice or order to show cause, on such terms as may be just, not exceeding the costs entered in the judgment, to open a judgment against a plaintiff or defendant on default, and shall have power to stay proceedings pending the motion. This motion may be made within the time limited for an appeal from the judgment whether a transcript has been filed in a county clerk's office or not, and the court shall have power to stay proceedings, on any execution issued on said judgment, upon such terms as to requiring security, as may be just, and to direct the judgment to be canceled on the books of the county clerk." The order in question vacates the judgment and directs the docket thereof in the clerk's offices of Columbia and New York counties to be canceled.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

John L. Crandell, for relator.
William W. Chase, for defendant.

CHESTER, J. The motion to vacate the judgment was made solely on the ground that Niver was not the agent of the casualty company, and therefore that it was not bound by the service of process on him; but we think there was not sufficient proof before the court to justify that conclusion. Upon the motion the casualty company presented the affidavit of one Galloway, who swore that he was an employé of the company in charge of its claim department of the New York office, and that at the time when process was served upon Niver he was not an agent of the casualty company. Nothing appears to show that Galloway had the sole power and authority from the company to employ and discharge its agents in this state, nor that Niver was not employed by some one authorized so to do at the home office, which was located at Chicago, Ill. Nor does it appear how he could have knowledge that Niver was not so employed. The facts that Galloway had charge of the claim department of the company in New York and had charge of this claim, are not, standing alone, sufficient to show that he had such knowledge.

The relator filed affidavits upon the motion tending to show that Niver was the local agent or local treasurer of the casualty company at the time of the service of the summons upon him, and that premiums were paid to him for the company for several months thereafter. There was, therefore, really no evidence before the City Court that Niver was not the agent of the company at the time, and the only competent evidence tended to show that he was. That being the situation, the service of the summons on Niver as the agent of the

defendant was a personal service on the casualty company. Code Civ. Proc. §§ 2878, 2879, 2881.

The return herein shows that Niver appeared for the company in the City Court and procured adjournments. The summons having been personally served on the company, and it having appeared, the time limited for an appeal from the judgment had expired. Code Civ. Proc. § 3046. Hence the time limited for the making of this motion had also expired. Laws 1895, p. 1599, c. 751, § 137. The motion should, for that reason, also, have been denied.

It may be that as a matter of fact Niver was not the agent of the company at the time, although the only evidence before the City Court was to the contrary. In such case the judgment is void and unenforceable.

The order should be reversed, with costs against the Continental Casualty Company, and without prejudice to the right of such company to resist the enforcement of the judgment if it should be so advised. All concur.

(121 App. Div. 546.)

BALL v. BROADWAY BAZAAR.

(Supreme Court, Appellate Division, Second Department. October 18, 1907.) 1. TRADE-MARKS AND TRADE-NAMES-NATURE.

A trade-mark designates an article of commerce and is affixed thereto, being therefore universal, accompanying the article, and may be infringed anywhere; while a trade-name applies to a business, and is, as a rule, local, the proprietor having an exclusive right to the name in his locality only.

[Ed. Note. For cases in point, see Cent. Dig. vol. 46, Trade-Marks and Trade-Names, § 1.]

2. SAME-INFRINGEMENT.

The trade-name and sign of the business of one engaged in making and selling children's clothing at a store on Twenty-Third street in the former city of New York, "Best & Co.-Lilliputian Bazaar," with the street and store numbers and the name "New York" added, is not infringed by one engaged in the same kind of business in the former city, now borough, of Brooklyn, under the trade-name and sign of "Broadway Bazaar-Brooklyn's Best Lilliputian Store, 1185 Broadway, Brooklyn." Hooker, J., dissenting.

Appeal from Special Term, Suffolk County.

Action by Thomas R. Ball against the Broadway Bazaar.

From

a judgment for plaintiff, enjoining defendant from the use of a tradename, defendant appeals. Reversed, and new trial granted.

Argued before WOODWARD, JENKS, HOOKER, RICH, and GAYNOR, JJ.

Herman N. Hansen, for appellant.
John W. Ingram, for respondent.

GAYNOR, J. This is not a trade-mark case, but a trade-name case. A trade-mark designates an article of commerce, and is affixed thereto. It is thus general or universal, accompanying the article, while a trade-name applies to a business and is as a rule local. Paul on Trade-Marks, § 177; Brown on Trade-Marks, § 91. A trade-mark

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may be infringed anywhere; but no so with a trade-name. For instance, that A. has a hotel called the Irving Hotel or the Cosmopolitan Hotel in place, does not prevent others from having hotels of the same name in other places; he has an exclusive right to the name in his locality only. Though simple, this illustration is of general application.

The plaintiff is engaged in making and selling children's clothes at 60 and 62 West Twenty-Third street in the former city of New York. The business was established there before the city of Brooklyn was made part of the new city of New York in 1897 as the borough of Brooklyn, and has always been local and advertised as local to that place. That the goods there sold may go to distant places or all over the country does not make a different case; the place of business, the place where the goods are purchased, is there. The trade-name and sign of the business is "Best & Co.-Lilliputian Bazaar," with the street and numbers and the name New York added. The defendant is engaged in the same kind of business at No. 1185 Broadway, Brooklyn, N. Y., i. e., the borough of Brooklyn, under the trade-name and sign of "Broadway Bazaar-Brooklyn's Best Lilliputian Store-1185 Broadway, Brooklyn."

It is manifest that no one could mistake either place or business for the other. The two names are of localities so different that it would be impossible. Each name carries the mind to an entirely different and distinct locality. It will not be disputed, I conceive, that the defendant could use its trade-name and sign for a business in Syracuse or Chicago, or even use the very name Lilliputian Bazaar there, without giving the plaintiff any right to complain. The name and business would be local to that place, just as Best & Co.'s name and business are local to a place. No one could confound the one with the other. Each would be selling Lilliputian clothes, i. e., clothes for little folk in different places. Whether the word Lilliputian, for being descriptive of the articles sold, could be the subject of a trade-mark, we do not need to consider, for that question is not before us, but only the question of the infringement of a trade-name. Now the name of Brooklyn is as distinct from the name New York as is the name of Syracuse or Chicago. If Brooklyn were still a separate city, no one could think of questioning this; but its identity has not been sunk, or even affected in the public mind, by its ceasing to be a city and becoming a borough. Brooklyn has as distinct an identity throughout the country as it ever had. It even retains its post office and post office name of Brooklyn, the same as does the former city of New York its post office and post office name. No one could mistake "Broadway Bazaar-Brooklyn's Best Lilliputian Store-1185 Broadway, Brooklyn," for "Best & Co.-Lilliputian Bazaar-60-62 West 23rd Street, New York City." It is quite impossible.

But the plaintiff has nevertheless obtained a judgment herein which forbids the defendant to use the words Best, Lilliputian and Bazaar "in connection with each other," the phrase Lilliputian Bazaar "either alone or in connection with the word Best," or the word Lilliputian at all, in its trade-name or sign.

It cannot be disputed that the defendant has the right to use the adjective best. It is equally indisputable that it has the right to use the common word bazaar. There are many stores and shops called bazaars. No one can exclusively appropriate either of these words. Nor could any one appropriate the exclusive right to call his bazaar the best bazaar or store. But it is said that the adjective best in the phrase Brooklyn's Best Lilliputian Store, and following after the word bazaar in the name Broadway Bazaar, would lead people to believe that it stood for the noun and proper name Best, and that therefore the impression conveyed would be that the store was Best & Co.'s. This is fanciful. No one could get such a notion from the defendant's sign or name. As to the prohibition in the judgment of the use of the phrase "Lilliputian Bazaar," the defendant does not use it, and there was therefore no issue of its use in the case.

The learned counsel have not been able to find decisions in point, but only because the plaintiff's case is unprecedented. Most of the trade-mark decisions cited are wholly inapplicable. The power of the courts in cases like this could easily be abused by being used in extreme or fanciful cases. It has to be restricted to cases of actual wrong and injury, neither of which exists in this case. There is no fraud in the case. Moreover, the motive with which one does that which he has the right to do is of no consequence.

The judgment should be reversed.

Judgment reversed, and new trial granted; costs to abide the final award of costs. All concur, except HOOKER, J., who dissents.

(121 App. Div. 600.)

SMITH V. NEW YORK ANTI-SALOON LEAGUE.

(Supreme Court, Appellate Division, Second Department. October 23, 1907.) 1. MALICIOUS PROSECUTION-ACTION-QUESTION FOR JURY.

In an action for malicious prosecution, held, under the evidence, a question for the jury whether defendant was the procuring cause or instigator of plaintiff's arrest.

2. TRIAL OBJECTIONS TO EVIDENCE.

Where, in an action for malicious prosecution, the arresting officer was asked if he knew who applied for his appointment as a special policeman, and he answered that defendant did, an objection to the question on the ground that defendant "corporation must act through its officers" was properly overruled; the proper course having been to move to strike the answer, which should have been "yes" or "no."

3. SAME QUESTIONS FOR JURY-UNCONTROVERTED MATTERS-MALICIOUS PROSECUTION-PROBABLE CAUSE.

In an action for malicious prosecution, it was proper to instruct that there was no probable cause for the prosecution, where it was undisputed that plaintiff did not sell liquor in a hotel as charged in the complaint against him.

4. MALICIOUS PROSECUTION-MALICE-INFERENCE FROM RECKLESS CHARGE. In an action for malicious prosecution, a finding that defendant was reckless or grossly negligent in causing plaintiff's arrest on a charge of which he was innocent will support a finding of malice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Malicious Prosecution, 64.]