No. 1, Manufactured at Oneida, N. Y.' It may insert any of its brands in place of Triumph.'" That is, the defendant, which has been guilty of a colorable immitation of plaintiff's trade-mark, which has sought by artifice to defraud the plaintiff of its rights under its registration, is told that it cannot do the thing which it has wrongfully done, but that it may do something else. It may make conspicuous the fact that it is manufactured at Oneida, this word having been identified for 60 years with the principal manufacture of game traps in the world, placing this announcement where the plaintiff has for years made its announcement that the traps were the product of the Oneida Community-upon the pan of the trap -and then that it might place its corporate name upon any other part of the trap. This does not appear to us to be the proper disposition of this case. Leaving entirely out of the question the many and important facts which point strongly to unfair competition, we are of the opinion that the use of the corporate name "Oneida Game Trap Company," in connection with the production of traps to enter into competition with the Oneida Community, Limited, traps, is a colorable imitation of plaintiff's trade-mark, that it was clearly designed to work the same mischief which was involved in the case of Kayser & Co. v. Italian Silk Underwear Co., supra, and that in enacting the trade-mark act of 1905, and inserting the provisos in section 5 thereof, Congress did not intend to provide for a barren notice of an ineffectual claim, but to confer definite rights, and an applicant properly registered under the act becomes the owner of the trade-mark and entitled to be protected in its use as such. Thaddeus Davids Co. v. Davids, 233 U. S. 461, 34 Sup. Ct. 648, 58 L. Ed. 1046. In a case of unfair competition it may be necessary to show intent to deceive the public, but in a case for violation of a properly registered trade-mark it is not necessary to show wrongful intent or facts justifying an inference of such intent. Thaddeus Davids Co. v. Davids, supra. It is sufficient that the rights intended to have been secured by the registration have been invaded, and the defendant, having wrongfully sought to take that which belongs to the plaintiff, is not entitled in a court of equity to "something just as good." The plaintiff is entitled to a practical injunction, one which will secure it in the right to the exclusive use of the word "Oneida" in connection with the manufacture of game traps, and to this end the defendant should be restrained from making use of its corporate name, as well as the stamping of the word "Oneida" upon its traps. It is not the province of a court of equity to aid wrongdoers. It fulfills its mission when it has. restrained the commission of a wrong, leaving the wrongdoer to figure out for himself how far he can disregard the mandate of the court and the requirements of a clean conscience. Let the findings of fact and conclusions of law be amended in harmony with this opinion; such findings and conclusions to be submitted to one of the justices of this court for approval. Costs are awarded to the plaintiff. Judgment modified in accordance with opinion, and, as modified, affirmed, with costs to plaintiff. Order to be settled before WOODWARD, J., on notice. All concur. YOUNG v. UNITED STATES MORTGAGE & TRUST CO. (No. 7555.) (Supreme Court, Appellate Division, First Department. July 9, 1915.) CORPORATIONS 308-OFFICERS-SALARY-CONTRACTS EVIDENCE. The president of a corporation demanded as additional salary 5 per cent. of the net profits of the business, under a contract therefor partly oral and partly in writing. A resolution of the executive committee of the corporation, approved by the directors, recited that the committee recommended to the board that they be authorized to award to the president, in addition to his regular salary, a participation in the net profits. The president testified that his arrangement with the chairman of the committee was prior to the resolution. Subsequently the executive committee passed a resolution providing for the payment of an honorarium to the president, consisting of a percentage of the net earnings for six months ending on a prior date. A similar resolution was passed at a subsequent date, and the president was paid the specified sums under the last two resolutions. Thereafter he made no demand on the corporation for further payment until after he ceased to be president. Held, that a verdict that there was a contract between the president and the corporation binding it to pay any part of its profits in the future was against the weight of the evidence, and was properly set aside. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 1334-1349; Dec. Dig. 308.] Dowling, J., dissenting. Appeal from Special Term, New York County. On reargument, after decision by the Court of Appeals remitting the case to the Appellate Division to pass on the facts. Order setting aside verdict and granting new trial affirmed. See, also, 214 N. Y. 279, 108 N. E. 418. Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, SCOTT, and DOWLING, JJ. Austen G. Fox, of New York City, for appellant. John M. Bowers, of New York City, for respondent. MCLAUGHLIN, J. Appeal from an order setting aside a verdict on the ground that it is against the weight of evidence. This is the second argument of the appeal. On the first the court was of the opinion that the evidence did not justify the jury in finding the existence of the contract alleged, and dismissed the complaint; the plaintiff having stipulated, if the court reached that conclusion, such disposition might be made of the appeal. Young v. United States Mortgage & Trust Co., 156 App. Div. 515, 141 N. Y. Supp. 364. An appeal was taken to the Court of Appeals, where it was held that this court erred in dismissing the complaint, since there was some evidence from which the jury might have found that the contract claimed by the plaintiff was made, and that the verdict having been set aside by the trial court as against the weight of evidence, and that question not having been passed upon by this court, the proper disposition of the appeal was to remit the matter to this court to pass upon the facts. Young v. United States Mortgage & Trust Co., 214 N. Y. 279, 108 N. E. 418. This was accordingly done, and the question For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes now presented, under the remittitur of the Court of Appeals, is whether the trial court was justified in setting aside the verdict as against the weight of evidence. While the decision of this court upon the former argument was to the effect that the plaintiff had failed, as matter of law, to establish the contract alleged, nevertheless it is apparent from the opinion delivered that the facts were examined and a conclusion unanimously reached that the verdict was against the weight of evidence. The court said: "At the conclusion of the trial the evidence did not justify the jury in finding that the defendant was in any way indebted to the plaintiff. * * The resolution of June 22d did not bind the defendant to pay anything. It was, at most, but a recommendation to the board of directors to authorize the executive committee to pay to the president a portion of the profits, not for any particular time, but solely during the pleasure of the board. This was so understood by the executive committee, as evidenced by its subsequent acts with reference to the payments, because in each instance reference was made to the approval of the board of directors. It was also so understood by the plaintiff, as evidenced by the fact that he made no claim for extra compensation, and in the reports made to the superintendent of banks, verified by him, no reference was made as to the defendant's being under any liability for extra compensation. It is incredible, if the plaintiff supposed he had a claim for which defendant was legally liable, that the reports would have been verified by him without some reference to it. The resolutions and the acts of the parties clearly and conclusively, as it seems to me, establish that the plaintiff's claim here sought to be enforced has no legal foundation whatever." But, irrespective of the views entertained by this court on the former argument as to whether the verdict was against the weight of evidence, I think the trial court properly set the verdict aside. The plaintiff's claim is that in June, 1899, the defendant promised to pay him, as additional salary, 5 per cent. of the net profits of the business; that the contract was partly oral and partly written; that the oral part consisted of a conversation with Mr. McCurdy, chairman of the executive committee; and that the written part consisted of a resolution of the executive committee, approved by the board of directors, as follows: "Resolved, that the executive committee recommend to the board that they be authorized to award to the president, in compensation for his services, and in addition to his regular salary, a participation in the net profits of the company during the pleasure of the board." The Court of Appeals held that this resolution, as ratified and approved by the board of directors, while some evidence of a contract, did not establish one; that it did not purport to express the terms of any contract, and upon the view most favorable to the plaintiff it merely authorized the executive committee to make a contract. The plaintiff testified that his arrangement with Mr. McCurdy was prior. to the adoption of the resolution by the executive committee and its subsequent approval by the board of directors; that after he had had his talk with Mr. McCurdy they both attended a meeting of the executive committee, when the resolution in question was passed. It seems inconceivable to me, if the arrangement as testified to by the 154 N.Y.S.-26 plaintiff with Mr. McCurdy had been made, and the same had been reported to the executive committee, that it, in ratification and approval, subject, of course, to the action of the board of directors, would have passed the resolution in the form which it did. Plaintiff's claim is that he was to have 5 per cent. of the net profits of defendant's business during the time he remained president of the company. The resolution does not so declare; on the contrary, he is to have a percentage, just how much is not stated, not for any specified time, but "during the pleasure of the board." The resolution contemplated future and not past action. That the committee did not suppose, when it was passed, that it had entered or was entering into a contract with the plaintiff on the terms agreed upon between him and Mr. McCurdy, is also evidenced by the further fact that when the matter again came before the executive committee on January 18, 1900, the resolution passed by it was: "Resolved, that pursuant to the resolution of the executive committee passed June 22, 1899, approved by the board of directors on the same day, providing for the payment of an honorarium to the president, consisting of a percentage of the net earnings of the company, the executive committee hereby authorizes the payment to the president of 5 per cent. of the net earnings of the company as determined for the six months ending December 31, 1899." It is also significant that the words "of an honorarium" and the word "consisting" were written into the resolution after the same was offered and before it was passed. In pursuance of this resolution the defendant paid the plaintiff $19,270, and in pursuance of a similar resolution passed December 26, 1901, plaintiff was paid $56,721.30. Thereafter plaintiff made no demand upon defendant for a further payment until after he ceased to be president of the company, when he presented the claim in suit. Not only this, but every six months after the contract is alleged to have been made plaintiff made a report to the defendant, and a verified report to the superintendent of banks, as to the assets and liabilities of the company-the last one just before he ceased to be president. In none of these reports is there a statement to the effect that he had a claim against defendant for extra compensation. Nor was there any entry made in any books of. the defendant which, upon an examination, would have disclosed the existence of the contract, or any obligation to pay the plaintiff any part of the sum here sought to be recovered. After considering all of the evidence bearing upon the existence of the alleged contract, and the acts of both parties after such contract is alleged to have been made, I am unable to reach a conclusion other than that the verdict of the jury was against the weight of evidence, and for that reason was properly set aside. The order appealed from, therefore, is affirmed, with costs to the respondent to abide the event of the new trial. INGRAHAM, P. J., and LAUGHLIN and SCOTT, JJ., concur. DOWLING, J., dissents. PEOPLE ex rel. ROSENTHAL v. TRAVIS, State Comptroller. (No. 7661.) (Supreme Court, Appellate Division, First Department. July 9, 1915.) 1. OFFICERS 11-CIVIL SERVICE-COMPETITIVE CLASSES. Under Civil Service Law (Consol. Laws, c. 7) § 15, subd. 2, declaring that in case of a vacancy in a position in the competitive class, where peculiar qualifications of a scientific, professional, or educational character are required, the state or municipal commission may suspend the provisions of the rule requiring competition, but no such suspension shall be general, relator, who was appointed as a legal examiner and investigator for the comptroller of the state, without examination, after a suspension of the rules, does not come within the competitive class, though his position ordinarily came within such class. [Ed. Note. For other cases, see Officers, Cent. Dig. § 13; Dec. Dig. 11.] 2. OFFICERS 72-REMOVAL CIVIL SERVICE-NOTICE. Relator, on being discharged from an office to which he had been appointed without examination, because a reorganization rendered the office a sinecure without duties, is not entitled to notice; the provision of law requiring notice to and an opportunity for the officer to protest, applying only in case of removal for delinquency. [Ed. Note. For other cases, see Officers, Cent. Dig. §§ 101–103, 105–107; Dec. Dig. 3. OFFICERS 72.] 71-REMOVAL-LACK OF DUTIES. Heads of state departments may remove officers appointed under the Civil Service Law, where owing to a reorganization there are no duties for them to perform and no compensation for such office has been provided. [Ed. Note. For other cases, see Officers, Cent. Dig. § 99; Dec. Dig. —71.] Appeal from Special Term, New York County. Application by the People, on the relation of Julius Rosenthal, for writ of mandamus against Eugene M. Travis, as Comptroller of the State of New York. From an order granting a motion for a peremptory writ, respondent appeals. Order reversed, and motion denied. Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOWLING, and HOTCHKISS, JJ. Robert P. Beyer, Deputy Atty. Gen., for appellant. HOTCHKISS, J. The relator was appointed assistant chief clerk in the stock transfer bureau of the state comptroller's office on July 15, 1913, and continued to hold that position until October 28th of the same year. On October 14, 1913, Mr. Sohmer, then the comptroller of the state, applied to the state civil service commission to suspend the rules and, in pursuance of section 15, subd. 2, of the Civil Service Law (Laws 1909, c. 15), to permit the appointment of the relator without examination to the position of legal examiner and investigator in the said bureau, a position which was then and has since continued to be in the competitive class, which application was granted, and the relator was, without examination, appointed to such position on or about October 28, 1913. The position to which relator was so appointed, and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |