chinery was situated, the executors had shown that all the machinery, including that belonging to the estate, and that erected by the lessees after the destruction of part of the machinery by fire, was worth $90,000, while that belonging to the estate alone was worth $50,000. At the time of the sale by the executors the land belonged to the city, and the purchaser of the machinery was required to move the same immediately.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ. James R. Marvin, for contestants and appellants, Sarah L. Myers and another.

A. Oldrin Salter, (Alexander Thain, of counsel,) for executors and respondents.

BARNARD, P. J. Ann Bolton died in 1882. She owned at her decease real estate in Bronxville, Westchester county, N. Y. The two executors and William N. Birchel, an adopted son, held a lease from the deceased for these premises for 10 years from March 1, 1880, at a yearly rent of $4,500. On these premises the lessees had carried on a bleaching business. There was machinery on the premises which went with the land. The city of New York took the land for public uses in 1889. In 1887 a large part of the machinery was destroyed by fire, and the lessees replaced this machinery on their own account. The executors sold the machinery of the estate at public auction in August, 1891, for $592.82. It was a serious question on the trial whether this sale was fair. The property was mainly bought at this sale by the adopted son of deceased, William N. Birchel, and it was used afterwards with the firm machinery proper, in new premises at West Fordam, by the executors and Birchel, as partners. The executors, before the commissioner, had proven the value of the entire machinery proper at upwards of $90,000. At the value put on the machinery, and separating the new from the old, the estate machinery was worth upwards of $50,000. On the other hand, the old machinery had to be sold separate. It was sold at public auction, where there were many people, and there was competition shown on the sale. The value before the commissioner was of an entire equipment of a business. The detached machinery would of necessity be so much reduced in value as to call for a very large loss. The surrogate has found the sale to have been fair, and, under the proof, that there was no evidence that it was of greater value than was paid for it. There is nothing upon which an appellate court can say the finding is erroneous. Secondhand machinery, which has been through a fire, and is only made useful by additions which could not be sold with it, is of not much use, except in the same business, and to those who own the new part which gives any value to it. The money paid Mrs. Legett, J. L. Mills, and J. W. Colwell was properly allowed. They were paid in the lifetime of testatrix, at her request, by the firm. The rent of the machinery after the land was taken was properly disallowed. It was, probably, prop erty of the city of New York. The heirs seem to have got an award for it, and then claimed the machinery. It was only by an

agreement with the city that the estate got the machinery, and that was just before the sale of it by the executors. The rents of the coal yard were properly allowed. This yard was rented to the bleaching firm, and, at the request of deceased, the rents from it were not collected by the firm. She should pay the rents not collected at her request. The mortgage given by Thomas Bolton, the elder, to Birchel, and by him assigned to Ann Bolton, was given merely to protect the title to the land as against creditors of Thomas Bolton. The deficiency on the foreclosure by Ann Bolton against her husband's executors is not a debt which the executors of Ann Bolton either could or were bound to attempt to collect. The executors of Ann Bolton cannot be made chargeable with the legacy of E. Brooks to Thomas Bolton, Sr. The Bolton estate had been settled, and the items had no proper place in this estate. The account between the firm, who acted as agents of Mrs. Bolton in her lifetime, was good evidence as against the deceased, when examined and settled by her, without other voucher. The decree of the surrogate should therefore be affirmed, with costs. All

concur.

(71 Hum. 101.)

CHARLES S. HIGGINS CO. v. HIGGINS SOAP CO.

(Supreme Court, General Term, Second Department. July 28, 1893.) SOAP MANUFACTURIES-TRADE MARKS-INFRINGEMENT INJUNCTION.

Plaintiff, the Charles S. Higgins Company, was incorporated, and to it was sold by a firm, of which Charles S. Higgins was a member, a soap manufacturing business, with the good will thereof, all trade-marks, names, and devices used in distinguishing the manufactured product, and the right to all secret processes used; and it was further provided that, so long as Charles S. Higgins was retained at a certain salary by the corporation, he would not make or sell soap in a certain city except for the corporation. After going out of its employ, he, with his wife, son, and two other persons, organized defendant, the Higgins Soap Company which manufactured soaps with marks and wrappers thereon resembling those of plaintiff only in the use of the word "Higgins." Held, that defendant would not be enjoined from conducting its business, it having the right to use the name Higgins, and there being nothing else to show that there would be confusion among purchasers, or that defendant's business was carried on to deceive the public.

Appeal from special term, Kings county.

Action by the Charles S. Higgins Company against the Higgins Soap Company to enjoin defendant from manufacturing or selling soap under the name of the Higgins Soap Company. Judgment

for defendant. Plaintiff appeals. Affirmed.

Argued before BARNARD, P. J., and DYKMAN, J.

H. Aplington, for appellant.

Johnson & Lamb, for respondent.

DYKMAN, J. William B. Higgins started a business of manufacturing soap in 1846. Charles S. Higgins, his son, became subsequently a partner with his father in the business. After the death of the elder Higgins, the business was acquired by Charles v.24N.Y.s.no.10-51

S. Higgins and John J. Morgan. They continued such owners until December, 1891, when the plaintiff was organized as a domestic corporation for the manufacturing and selling of soap. The proprietors, Higgins & Morgan, then assigned the property used in the manufacture of soap by them, real and personal, with the good will of the business, with the trade-marks, and all names and devices employed in distinguishing the manufactured product, and the right to all secret processes used by the grantors during the life of Charles S. Higgins. The paper provided that, as long as Higgins was allowed a salary of $15,000 a year, he would instruct persons acting for the company in the firm methods of manufac ture. The paper further provided that so long as Higgins was employed at this salary he would not make or sell soap in the city of Brooklyn except for the plaintiff company. Higgins ceased to be employed in 1891, and he, with his wife and son and two other persons, procured the incorporation of the defendant in the state of New Jersey. The defendant opened a place of sale in Brooklyn. The old private firm had manufactured soap sold under different names, but the principal article was known as "Chas. S. Higgins' German Laundry Soap." The defendant marks his soap on the label "Higgins' Soap Co. Original Laundry Soap. Chas. S. Higgins, Prest. ;" and on one side of the bar of soap, inclosed within the labels, "Higgins' Soap Company. Chas. S. Higgins, Prest.," and on the other side of the bar, "Original Laundry." The soap of the private firm and of the plaintiff was well known in the market as "Higgins' Soap," and the plaintiff more or less known as the "Higgins' Soap Company."

The basis of this action is such as is involved in trade-mark cases. The use of the name of Higgins by the family of Charles S. Higgins in connection with himself and others, of itself, gives no right of action. Meneely v. Meneely, 62 N. Y. 427. The evidence is to the right to relief for the use of a trade-mark, and to prevent fraud and imposition. The name of Higgins was in the corporate description of both companies, and both companies do business in Brooklyn city. Each company manufactures soap. and each calls its product "Higgins' Soap." There was no cove nant by Charles S. Higgins that he would not carry on a coap business in Brooklyn, except upon the condition of his employment by the plaintiff, and his right to so carry on the soap-making business was necessarily implied in the bill of sale. Charles S. Higgins has very little interest in the defendant corporation,-onetwelfth only. The labels on the manufactured articles are entirely different. One is bright yellow, and the other is blue. The distinctive word "German," which the plaintiff has the right to use as indicating its product, is absent from the defendant's label. The plaintiff's label has a German recommendation for a soap which will not destroy the fabric washed. The defendant's has a recommendation, in four different languages, that the defendant's soap is made of the very best materials, and without adulteration, and will not injure the fabric. The place of manufacture of defend

ant's soap is printed plainly on the labels used. The plaintiff's label contains no place of manufacture. Apart from the use of the word "Higgins" in the corporate name, and stamped on the manufactured product, there would be no cause of complaint either that the business of the parties was liable to confusion among purchasers, or that it was carried on to deceive the public. No case was made out for an injunction under this proof. Munro v. Tousey, 129 N. Y. 38, 29 N. E. Rep. 9.

The judgment should be affirmed, with cost.

HADLEY v. PETHCAL et al.

(Supreme Court, Special Term, Broome County. October 11, 1890.)

1. COSTS-MOTION FOR NEW TRIAL-DISCRETION OF COURT.

Costs on a motion for a new trial are in the discretion of the court, (Code Civil Proc. § 3236,) and cannot be taxed by the party who finally succeeds in the action as part of his recovery.

2. SAME TO ABIDE EVENT OF NEW TRIAL.

Where a verdict in favor of plaintiff for $3,300 is set aside, and a new trial granted, "with costs to defendants to abide the event," and on the new trial plaintiff recovers $400, he is not entitled to tax the costs of the motion for a new trial.

Action by Virgil W. Hadley against Jacob Pethcal and others. Defendant moves for a new taxation of costs. Granted.

Alexander Cummings, for plaintiff.
A. F. Gladding, for defendants.

FORBES, J. The plaintiff in this action recovered a verdict at the Broome circuit, against the defendants, for about $3,300, and a judgment was entered thereon. A motion was made before the justice who held the circuit for a new trial upon a case and exceptions, under section 1002 of the Code of Civil Procedure. The judgment was set aside at the special term, and a new trial was granted, with costs to the defendants to abide the event. No appeal was taken from the order granting a new trial, or from the judge's determination of the question of costs upon that motion. A retrial was had at the circuit, and the plaintiff recovered a verdict of $400. Upon taxation of the costs by the plaintiff before the clerk of Broome county, the costs of the motion for a new trial -an item of $60-was allowed by the clerk, against the objection of the defendants. It is claimed on the part of the plaintiff that, having succeeded finally in the action, he is entitled to costs, in all stages of the action, as of course, under sections 3228 and 3251 of the Code of Civil Procedure. The defendants claim that, from the peculiar phraseology of the order granting a new trial to them, the plaintiff is not entitled to tax the costs of the special term in his favor, and this is the only question for discussion upon this motion.

I have thus far been unable to find any authority absolutely decisive of the question here presented. The action is an action at law. The cases cited by the moving parties are cases in equity, in which it must be conceded that the costs are in the discretion of the court; while, on the other side, authorities have been cited which only have reference to the determination of an action upon appeal to the court of appeals, leaving the question an open one, in an action at law, where the order was not appealed from, and the case was retried at the circuit. After such examination as I have been able to give the question, I am convinced that the plaintiff is not entitled to tax, as a part of his recovery, the costs of the special term-First, because the costs upon a motion for a new trial fall within section 3236 of the Code of Civil Procedure, and are in the discretion of the court. That discretion has been fairly exercised, the provisions of the order unappealed from and the determination is therefore final. Clark v. Sullivan, (Sup.) 10 N. Y. Supp. 397; Siegrist v. Holloway, 7 Civil Proc. R. 58; Cutlery Co. v. Rowe, 5 Abb. N. C. 142; 2 Rum. Pr. p. 442. In the last authority cited, the following language is used:

"Where a motion is made on a case, the costs are in the discretion of the court. The costs upon such a motion are fixed by section 3251 of the Code. Where the motion is made upon the minutes, the costs are also in the discre tion of the court, and, if allowed, are only ten dollars."

In Abbott's Annual Digest for 1887, at page 92, (paragraph 37,) the following language is used:

"Where the defendant is defeated at the trial, and succeeds upon appeal in having the judgment reversed, with costs 'to the appellant' to abide the event, and the plaintiff succeeds upon the new trial, he cannot tax in his favor the costs upon the appeal;" citing the case of Bannerman v. Quackenbush, 2 City Ct. R. 172.

From an examination of this authority, reported elsewhere, I do not find that the note is sustained by the case as digested. But see Trust Co. v. Whiton, 17 Hun, 593; Howell v. Van Siclen, 4 Abb. N. C. 1, and note, affirming 8 Hun, 524. If I am right in my conclusion that the costs on a motion for a new trial are in the discretion of the court, then there is no difference, in the principle to be applied, whether the action is one in equity or at law. Copper Co. v. Dimmock, 29 Hun, 299. Then the cases of Durant v. Abendroth, 48 Hun, 16, 1 N. Y. Supp. 538, and of House v. Lockwood, 48 Hun, 550, 1 N. Y. Supp. 540, may be used to sus tain the contention of the defendants, and the case of Thomas v. Evans, 50 Hun, 442, 3 N. Y. Supp. 297, would be directly in point, as sustaining the discretionary power of the justice who granted the new trial.

Secondly, the rule contended for by the defendants ought to prevail as the law in cases of this character, and particularly in the case at bar. The verdict of the jury, concededly wrong, was set aside by the justice who held the circuit; and without any appeal from his order, which gave costs to the defendants to abide the event of the action, a new trial is had at the circuit, and a jury give but a small portion of the original damages. If the