SUMMONS.

An order was obtained for service by publication of the summons in a foreclosure suit upon the owner of the equity of redemption, who was a non-resident, but before the completion of the service the plaintiff died, and publication was thereafter continued to the termination of the six weeks directed by the order; afterwards the action was continued pursuant to the order of the court in the name of the executrix of the deceased plaintiff, without further publication or appearance on the part of said defendant. A judgment of foreclosure and sale was rendered and a sale made pursuant thereto. Upon a case submitted to determine as to whether plaintiff, who claimed title to the land under the foreclosure sale was entitled to the specific performance of a contract for the purchase thereof, held, that there was no effectual service of the summons in the foreclosure suit upon said defendant therein, and as to him the court acquired no jurisdiction, and as the equity of redemption was not barred by the sale, plaintiff was not able to convey a good title; that the effect of the death of the original plaintiff in the foreclosure suit was to suspend further proceedings other than for the continuance of the action, until his executrix was substituted; that while the order for service by publication may have remained available to give the court jurisdiction, the publication should have been commenced de novo after the substitution and continued for the requisite six weeks. Reilly v. Hart.

TAXPAYER

625

1. To vest a title in a cestui que trust, under the provisions of the Revised Statutes (1 R. S. 728, § 49, and 729, § 58), declaring that a transfer of real estate to one or more persons, to the use of or in trust for another, shall vest no estate or interest in the trustee, it is essential that the trust be declared by a deed or conveyance in writing (2 R. S. 134, §6), and the trust must have existed at the time of the grant to the trustee. Bates v. Ledgerwood Mfg. Co. 200

2.

In 1878 S. executed and delivered to W. a conveyance of certain premises, absolute in form, but which were in fact intended by the parties as collateral security for advances made by W. to S. In 1882 W., at the request of S. conveyed said premises to plaintiff, who assumed a mortgage thereon and paid the balance of the purchase-price in cash, which was the full value of the premises, and S. received the benefit thereof. Plaintiff had no actual notice that the deeds to W. were intended as security only. The premises were at the time of the conveyance in the possession of S. through his tenants, and plaintiff failed to inquire of them as to the title under which they held. Posses

sion was surrendered to plaintiff after her purchase, and she continued in possession thereafter. In an action to recover damages for injuries from the maintenance of an elevated railroad in front of said premises, and to restrain its future maintenance and operation, S. testified that the conveyance to plaintiff was made with his consent, and that his debt to W. had been paid. The court found that plaintiff has, since the conveyance to him, been seized of an estate of inheritance in fee simple absolute in said premises, and through his agents and servants been in possession of the same. Held, no error, that plaintiff's failure to make inquiry of the tenants did not, under the circumstances, affect his position as bona fide purchaser; that the general rule that possession is notice to the person proposing to purchase of the rights of the occupant did not apply; also, that S. was estopped from asserting or maintaing any claim to the title, or right to redeem. Minton v. N. Y. E. R. R. Co.

TRADE-MARK.

332

It ap

4. In an action to restrain defendants from using the name "Waterman's Ideal Fountain Pen," which plaintiff's claimed as a trade-mark, the trial court found that plaintiff Waterman had, for a long time previous to the commencement of the action, been the manufacturer and inventor of an article known as a fountain pen, which was stamped and labeled with the name specified; this had been adopted by him as "his own proper device and trade-mark, and was known to the public and to buyers and consumers." peared also that the pens manufactured by plaintiffs were made under letters patent issued to Waterman, which described the invention as a "fountain pen." Defendants manufactured penholders, stamped them with the same name and offered them for sale. Both Waterman and defendants stamped upon the articles so made and sold by them the dates of the patents issued to Waterman. Held, the word "Ideal," as used by Waterman, pointed out simply the maker, and so came within the definition of a trade-mark; that while the whole name pointed out both maker and inventor, this did not affect the right to the exclusive use of that word, and that plaintiffs were entitled to be protected in such use as applied to fountain pens. Id.

5.

It appeared that W. assigned his letters patent; that S., the assignee granted to him an exclusive license to manufacture and sell fountain penholders under said patents, the license requiring him to make returns and to pay royalties, as specified, to S., and upon failure to do this within a time specified, S. was authorized to terminate the license upon giving written notice to the licensee. Subsequently W. and S. gave to defendants their joint promissory note, and to secure payment thereof S. assigned to them the letters patent, subject, however, to the license granted to W. Defendants transferred the note and their interest in the patents to S. The note was not paid at maturity, and thereafter S. served notice of a revocation of the license on the ground of fail

ure on the part of the licensee to make returns and payments as prescribed, and then executed to defendants a sole and exclusive license to manufacture and sell fountain pens under the patents. The note was subsequently paid; between its maturity and payment defendants manufactured and sold penholders under the patents similar to and in imitation of those made by W., and stamped "Waterman's Ideal Fountain Pen." After the note was paid, they ceased to manufacture, but continued to sell pens then on hand. It did not appear that plaintiffs manufactured anything covered by the patents during the period for which they made no returns. Held, that there was no effective revocation of W.'s license; that the one granted to defendants conferred upon them no right either to make or sell, and so no right to use the name; that while the relief plaintiffs might be entitled to on account of such manufacture by defendants was not involved in the action, as it related not to the use of the invention, but of the trade-mark, they were entitled to an injunction to restrain defendants from using the latter. Id.

TRESPASS.

the defendant to agree with commissioners appointed by the act on behalf of the city of Rochester, upon a plan to elevate its tracks along and across the city streets, and to close up streets, etc., a portion of a street upon which plaintiff's premises abutted was discontinued, and defendant having previously obtained title to the fee of the street, erected thereon an embankment about fourteen feet high, upon which it laid its tracks, leaving a space between it and said premises so narrow as not to admit of the approach of a team and carriage to them. Plaintiff's premises were used and occupied as a hotel and boarding-house. In an action to recover damages, upon these facts appearing, the court directed a verdict for the defendant. Held, error; that the plaintiff established a right to recover, and the question of damages should have been submitted to the jury. Egerer v. N. Y. C. & H. R. R. R. Co.

108

2. Upon the trial of an issue of fact by a referee or by the court without a jury, a refusal to make any finding whatever upon a question of fact, where a request to find is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruling upon a question of law. (Code Civ. Pro. 993.) Van Bokkelen v. Berdell. 141

Upon trial of an action upon a policy of marine insurance, one question was as to whether the yessel was lost before or after the policy expired. There was evidence authorizing the inference that it was before. The plaintiffs conceded that the question was one of fact, but defendant refused to go to the jury on that question, and each party requested the court to direct a verdict in its favor. The court stated that neither party desired to have the facts submitted to the jury, and upon the inferences he was permitted to draw from the evidence, directed a verdict for plaintiff. Held, no error. Reck v. Phenix Ins. Co. 160

as "Glass Buildings;" he deposited the rents collected to the credit of a bank account kept in his name as "Agent Glass Buildings." In payment of a debt which B. owed defendant, as collateral for which the latter held certain securities, he received a check on the bank signed by B., with the words "Agt. Glass Buildings" fol-" lowing his signature, and on receipt surrendered the securities. The check was paid by the bank and charged to said account. B. had no authority to so use the fund. In an action to recover the amount thereof, there was no evidence tending to raise any question as to defendant's good faith, except such receipt of the check. Held, that the form of the check was sufficient to indicate to defendant the existence of an agency, 6. and to put him on inquiry as to the agent's authority to so use the money; and so, that a refusal to nonsuit and a submission of the case to the jury was proper. Gerard v. McCormick, 261

5. In an action to recover for services rendered, the following facts appeared: Defendant entered into a contract with the city of New York to construct certain sewers. Under said contract the city was authorized to retain, for six months after the work was done, a certain percentage of the contract price for the purpose of repairing the streets through which the sewers were constructed, which the city was authorized to expend only after defendant had, after being notified, refused to make such repairs. Defendant employed H.. plaintiff's assignor, to superintend the work, agreeing to pay him for his services one-third of the net profits. The city made payments as the work progressed, and after its completion retained the percentage specified, which was paid to defendant in June, 1888. This action was commenced in January of that year. H. testified that he knew of the terms of defendant's contract with the city. Defendant moved to dismiss the complaint, at the close of plaintiff's evidence, on the ground that the action had been commenced before the contract was completed and before

H.'s interest in the profits had become due. This motion was denied. Held, no error; that conceding it was not in the contemplation of the parties that the percentage of H. should become due and payable until the amount thereof could be ascertained, as the city was only authorized to spend for repairs the money retained, and the contractor could not be made liable for a larger sum, upon conclusion of the work, and upon payment of the amount earned less the amount retained, the parties Icould have determined the net profits and divided the same, leaving their interest, if any, in the amount retained, to be ascertained upon expiration of the six months. Jenkins v. Dean.

275

2. The objection is not obviated by the creation of a power in the trustees to select a beneficiary, unless the class of persons in whose favor the power may be exercised has been designated by the testator with such certainty that the court can ascertain the object or objects of the power. Id.

3. The rule that where several trusts are created by a will, which are independent of and separable from each other, and each complete in itself, some of which are lawful and others unlawful, the illegal trusts may be cut off and the legal ones permitted to stand, can be applied only in aid and assistance of the manifest intent of the testator and never where it would lead to a result contrary to the purpose of the will, or work injustice among the beneficiaries, or defeat the testator's scheme for the disposal of his property.

Id.

4. When, therefore, the trusts are so connected as to constitute an entire scheme, so that the presumed wishes of the testator would be defeated if one portion were retained and others rejected, or if manifest injustice would result from such rejection to the beneficiaries, or some of them, then all SICKELS-VOL. LXXXV.

The will of T. gave his residuary estate to his executors as trustees, and to their successors in the trust thereby created, "to have and to hold the same * * during a

*

period not exceeding two lives in being," which were named and "to apply the same and the proceeds thereof to the objects and purposes mentioned" in the will. Those objects and purposes were specified in a clause by which said trustees were requested to procure the incorporation of an institution "with capacity to establish and maintain a free library and reading-room in the city of New York, and to promote such scientific and educational purposes" as they should designate. In case such institution was incorporated during the life-time of the survivor of the two lives specified, the trustees were authorized to convey and apply to its use said residuary estate, 66 for so much thereof as they may deem expedient." In case the institution should not be incorporated during the period limited, or if for any cause or reason said trustees "shall deem it inex pedient" to so convey or apply said residue," or any part thereof,' they were authorized to apply the whole or such portion thereof as was not so applied" to such charitable educational purposes" as in their judgment would render it "most widely and substantially beneficial to mankind." In an action brought to obtain a construction of the will, held (BRADLEY, POTTER and VANN, JJ., dissenting), that the trust so sought to be created was invalid because of indefiniteness and uncertainty in its objects and purposes, and because it substitutes for the will of the testator that of the trustees and makes that controlling in the disposition of the trust fund; that the power conferred upon the trustees was imperative but not valid because not enforceable at the suit of any beneficiary; that the clauses in question could not be upheld as constituting primarily a separate trust or power in trust for the benefit of the institution,

99