764 .1146 1142 Wallace v. McCabe (Sup.)... Walton v. Fowler (Sup.). Warner. Hazard v. (City Ct. N. Y.). Washburn, Goodwin v. (City Ct. N. Y.)... 473 Washburn & Moen Mfg. Co., Thurber v. Watson v. Delaware, L. & W. R. Co. (Sup.) 798 .... ... Williams v. Delaware, L. & W. R. Co. (Sup.) .1141 1148 11 .1148 .... .1148 Williams v. Jones (Sup.). 702 .1125 Williamson v. Brooklyn Heights R. Co. (Sup.) .1150 Weber, Jacobs v. (Sup.). .1133 Willman v. Press Pub. Co. (Sup.) .1150 Webster v. Fitchburg R. Co. (Sup.). 220 Wilson v J. H. Flickinger Co. (Sup.). 541 499 .1131 Weidenfeld, Becker v. (Sup.).. .1126 Wisconsin Condensed Milk Co., Farquhar v. (Sup.) .1130 244 Witmer, Austin v. (Sup.). 721 Weinhandler v. Colonial Brewing Co. (Sup.) 306 Weir, Rosenthal v. (Sup.). 841 Wolchock v. Tombarelli (Sup.). 504 Weissboum v. Solomon (Sup.). 962 Welch v. Kingsley (Sup.). .1147 Welde v. New York & H. R. Co. (Sup.).. Wells v. Rothwell (Sup.)... .1148 Welsbach Light Co., Young & Fletcher Co. Woodbury Institute, Conklin v. (Sup.). .1129 .1150 v. (Sup.) .1024 Woodruff v. Woodruff (Sup.). 936 Werner, Importers' & Traders' Nat. Bank Woodruff, People v. (Sup.). 209 v. (Sup.) 996 Werner, People v. (Sup.). .1139 Woodworth v. New York Cent. & H. R. R. .1072 West, Kent v. (Sup.). .1134 Westchester Electric R. Co., Gleacher v. (Sup.) Westcott. In re (Sup.). Westervelt v. Phelps (Sup.). Weston, Lumber Exch. Bank v. (Sup.). Workingman's Pub. Ass'n, Sarasohn ..1148 .1132 Wormouth, Village of Cato v. (Sup.). ..1147 ..1150 165 .1150 289 Wythe v. Denike (Sup.).. .1150 ... Wheeler v. Hall (Sup.).. 257 Wheeler v. Metropolitan St. R. Co. (City Ct. 477 York Haven Paper Co. v. Place (Sun.)....1150 577 Wheeler, Morse v. (Sup.). 714 Wheeler, Smith v. (Sup.). 780 Whelan v. Nelson (Sup.). .1148 Whitbeck, Ten Eyck v. (Sup.). Young Men's Christian Ass'n of City of .1143 ...1024 White, Swanson v. (Sup.).. 787 See End of Index for Tables of New York Supplement Cases in Other Reports. THE New York Supplement VOLUME 66, AND New York State Reporter, VOLUME 100. (32 Misc. Rep. 378.) UNITED STATES LIFE INS. CO. IN THE CITY OF NEW YORK v. ETTINGER et al. (Supreme Court, Special Term, New York County. August, 1900.) MORTGAGES-RECEIVER-PROVISION FOR APPOINTMENT-WHEN ENFORCED. A covenant in a mortgage extending the lien thereof to the rents and profits, and providing for the appointment of a receiver in case of foreclosure, will not entitle the mortgagee to the appointment of a receiver, where it appears that the taxes upon the property have been fully paid, that the interest was met when last due, that the persons liable for the debt are solvent, and that the premises are adequate security for the mortgage debt. Action by the United States Life Insurance Company in the City of New York against Moritz Ettinger, and Moritz Ettinger and Maurice H. Baumgarten as executors, and others, for the foreclosure of a mortgage. Motion by plaintiff for the appointment of a receiver. Motion denied. Donald B. Toucey, for plaintiff. Maurice Rapp, for defendant Nathan. GIEGERICH, J. It appears affirmatively from the opposing affidavits, without denial by the applicant, that the taxes upon the mortgaged premises have been fully paid, that the interest upon the bond and mortgage in suit was met when last due, that the persons liable for the debt are solvent, and that the premises in question are adequate security. The plaintiff relies solely upon the covenant contained in the mortgage, which virtually mortgages the rents and profits of the premises, and permits the appointment of a receiver, 66 N.Y.S.-1 and 100 New York State Reporter without regard to the solvency of the mortgagees or the value of the mortgaged premises. While it is true that such provision is entitled to "consideration and weight," it is equally true that "courts of equity will not enforce such a provision in a mortgage when it would be inequitable or unconscionable to do so." Fletcher v. Krupp, 35 App. Div. 586, 55 N. Y. Supp. 146; Degener v. Stiles (Sup.) 6 N. Y. Supp. 474; Brick v. Hornbeck, 19 Misc. Rep. 218, 43 N. Y. Supp. 301. Under the circumstances disclosed, the appointment of a receiver would involve a disregard of all the equities in the case. Motion denied, with $10 costs. (32 Misc. Rep. 379.) PEOPLE ex rel. SMITH v. HOFFMAN, Adjt. Gen., et al. (Supreme Court, Special Term, New York County. August, 1900.) MILITIA-EXAMINATION OF OFFICER AS TO FITNESS FOR SERVICE-POWER OF GOVERNOR. Under Military Code, § 64, authorizing the governor to require any commissioned officer to appear before a board of field officers for examination as to his moral character, capacity, and general fitness for the service, and providing that if the findings of such board be unfavorable to such officer, and be approved by the governor, he shall be discharged from the service, the approval by the governor of such findings, and the proceedings generally, relate to an exercise of power by the executive, which is vested in him, under the law, in connection with the state military department, and is not subject to review by the courts. Petition by the people, on the relation of Clinton H. Smith, against Edward M. Hoffman, as adjutant general of the state of New York, and others, for writ of certiorari requiring the adjutant general to return the records of the board of examination convened by general orders No. 7, and the approval of the governor of the findings of such board. Motion to vacate writ granted. John C. Davies, Atty. Gen. (Edward P. Coyne, of counsel), for the motion. Alexander S. Bacon, opposed. GIEGERICH, J. The governor unquestionably had the power to appoint the board of examination (Military Code, § 64) which decided that the petitioner was unfit for service in the national guard of the state of New York. The proceedings and report were approved by the governor, the commander in chief of the national guard, and thereupon, by operation of law, the petitioner was discharged from the service. Id. The proceedings did not, as claimed, partake of the character of a judicial inquiry, but were had in aid of the commander in chief, to enable him to understandingly exercise his discretion in determining the fitness of an officer to hold his commission. The approval by the governor was a function which, under the law, was vested in him in connection with the state military department; and the proceedings generally related to the exercise of power by the executive, and are not subject to control by the judicial, department. 8 Am. & Eng. Enc. Law, 1401. The motion is therefore granted. (32 Misc. Rep. 351.) SCHEER V. AMERICAŃ ICE CO. (Supreme Court, Special Term, New York County. August, 1900.) TRADE-NAME-ILLEGAL USE OF NAME OF INDIVIDUAL-INJUNCTION. The unauthorized use by another of one's individual name, by printing it in large letters upon ice wagons, issuing cards and billheads in his name as a dealer in ice, conducting correspondence under the same title, and indorsing checks made to such person's order, is such an injury to the person's right of property-to the exclusive use of his own name-as will be restrained by injunction, notwithstanding a contract by such person not to engage in the ice business for a term of years. Action by John W. Scheer against the American Ice Company to enjoin defendant from doing business in plaintiff's name. Motion to continue injunction pendente lite granted. Einstein & Townsend (Clarence J. Shearn, of counsel), for plaintiff. Daly, Hoyt & Mason (William Rand, Jr., of counsel), for defendant. GIEGERICH, J. This is an application to continue an injunction pendente lite, restraining the defendant from doing business under the plaintiff's name. The facts, as stated in the complaint and moving affidavit, are as follows: The plaintiff was, prior to April 4, 1900, engaged in the retail sale and delivery of ice, but on that date sold his business, consisting of one wagon, team and ice route, to the defendant company. It is stated, and not denied, that there was no provision in the contract of sale that the defendant should have the right to use the plaintiff's name, although there was a provision that the plaintiff should not engage in the ice business in the state of New York for a period of five or ten years without the defendant's permission. After making the purchase the defendant printed the plaintiff's name in large letters on other wagons, and also issued a large number of cards bearing the following inscription: "John W. Scheer, Dealer in Hygeia and Natural Ice, No. 536 West Thirty-Eighth street, New York. Orders by mail promptly attended to." Bill heads and forms of contracts were also printed, and correspondence was carried on in plaintiff's name. Checks to his order were indorsed with his name and collected by the defendant. The defendant resists the motion solely on the ground that no right of property belonging to the plaintiff has been injured, and relies upon De Wick v. Dobson, 18 App. Div. 399, 46 N. Y. Supp. 390, and other cases which have held that an injunction cannot be issued to restrain the publication of a libel. But this is plainly not an action for libel, although some of the elements of damage enumerated in the complaint are similar to those in libel,-such, for instance, as "bringing the plaintiff's name into disrepute by making it appear that plaintiff acquiesces in such fraudulent and wrongful scheme in furtherance of defendant's monopoly." The cause of action, however, is not libel, but is for the unauthorized use of the plaintiff's name. The exclusive use of one's own name, except as against those having the same name, is a property right which has long been recognized in judicial decisions, and the fact that the plaintiff bound himself not to engage in the ice business for a term of years did not, in the absence of an express agreement to that effect, entitle the de |