title, and the claim must be of the entire title. It must be such as necessarily to exclude the idea of title in any other person. Howard v. Howard, 17 Barb. 663. The case of Broiestedt v. Railroad Co., 55 N. Y. 220, seems to be entirely applicable as an authority to these cases. There a railroad company had entered into possession of a street by the license of a statute, and the question arose whether its possession was to be deemed adverse to that of a property owner owning to the center of the street, who was not a party to, or compensated for, such occupation. The court held that:

"The possession was not adverse, but was under license by act of the legislature, which only extended to the rights of the public. The entry under this license is presumed to have been in subordination to the rights of the owner, and there is no evidence against this presumption."

Defendant's counsel, upon his brief, seeks to avoid the authority of this case by urging that, although the original entry of the defendant's predecessors into the street might be presumed to be under the license, and so not hostile to the plaintiffs, a different presumption would arise after user and occupation for 20 years. I am not able to draw this distinction. Assume the original entry to have been under the license, and not hostile, and, in the absence of evidence indicating some change, it will not be presumed that the character of the possession has changed from that of a licensee to a hostile and adverse claimant of title. Findings and judgment may be prepared in each case, in accordance with the views stated here and upon the trial, in favor of plaintiffs, with costs.

Judgment for plaintiffs, with costs.

(31 Misc. Rep. 690.)

LAVANBURG v. PFEIFFER.

(Supreme Court, Special Term, New York County. June, 1900.) TRADE-MARKS-INFRINGEMENT-WHAT AMOUNTS TO.

Plaintiff was the owner of the trade-marks "Oriole Vermilion" and "Peerless Green," applied to dry colors. Defendant used the designation "O. Vermilion" and "P. Green," on similar dry colors, but no similarity in package or labels was attempted. Plaintiff's evidence was confined to a few sales by defendant of colors manufactured by him, but stated to be sold under plaintiff's trade-mark. Defendant, by a preponderance of evidence, showed that no representation was made to any customer tending to create a belief that the goods were plaintiff's, and that there was no attempt to deceive. Held, that it cannot be said that defendant's marks were an infringement of plaintiff's trade-mark.

Action by Fred L. Lavanburg against Isaac Pfeiffer to restrain the infringement of a trade-mark. See 52 N. Y. Supp. 801. Dismissed. Spiegelberg & Wise (Benjamin F. Einstein, of counsel), for plaintiff. Abraham L. Jacobs (Samuel F. Jacobs, of counsel), for defendant.

SMITH, J. There is no question raised in this case as to the ownership by the plaintiff of the names "Oriole Vermilion" and "Peerless Green" in his business, and that the same have been and are now used by him as trade-marks or names upon certain dry colors manufactured and sold by him; nor is there any claim made by the plaintiff

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that the names "Oriole" or "Peerless" appear or are used upon labels or vessels containing similar dry colors manufactured or sold by the defendant, or that there is any similarity in the vessels or packages used by the defendant with those of the plaintiff, by means of which the public could be deceived. The plaintiff, however, does claim that the use of the names "O. Vermilion" and "P. Green" by the defendant amounts to and is in fact an infringement of the trade marks or names of "Oriole" and "Peerless," and that the use of the letters "O," as applied to vermilion, and "P," as applied to green, amounts to and is in fact an unfair competition in trade, and this suit is brought to restrain the use by the defendant of the plaintiff's said trade marks or names, or any abbreviation of them. When this case was before Mr. Justice Cohen on a motion for a preliminary injunction, that learned justice held that the mere use of the letters "O" before vermilion and "P" before green did not amount to an infringement upon the plaintiff's trade marks or names of "Oriole Vermilion" and "Peerless Green," and in such conclusion I concur. The evidence is voluminous and conflicting. The plaintiff's testimony tending to show the illegal use of said trade marks or names by the defendant is confined to three or four transactions or sales of vermilion and green dry colors manufactured by him, and the use therein of the plaintiff's trade marks or names; but this testimony is met and overcome by a clear preponderance of evidence introduced by the defendant, which convinces me that in such transactions or sales or attempted sales of the dry colors manufactured by the defendant no representation was made to any customer or purchaser tending to induce a belief that the dry colors so sold or attempted to be sold were known as "Oriole Vermilion" or "Peerless Green," nor with any design on the part of the defendant or his agents to induce a belief that the article of merchandise was that manufactured or dealt in by the plaintiff, or with the design to deceive the public. Entertaining these views, it follows that the complaint must be dismissed upon the merits, with costs.

Complaint dismissed, with costs.

(31 Misc. Rep. 701.)

SMITH v. REILLY et al.

(Supreme Court, Special Term, St. Lawrence County. June, 1900.) ALIENS-DEVISE-DESCENT-TITLE.

Laws 1845, c. 115, § 4, as amended by Laws 1875, c. 38, provides that an alien may take by devise, but that, if a male of full age, he may not hold as against the state, unless he file a declaration of intention to become a citizen. A testator, dying in 1892, devised land to a nonresident alien. The devisee died within three months of testator, and before the probate of his will, leaving a daughter, his only heir, also a nonresident alien. Held, that the daughter's title was good, since her father had a reasonable time in which to make his declaration, and, having died before doing so, the title passed to her, and, as a female, she was not subject to any condition looking towards naturalization.

Action by Henry J. Smith against Mary R. Reilly and others to construe a will. Complaint dismissed.

J. F. Brown, for plaintiff.

L. P. Hale, for defendant Reilly.

RUSSELL, J. Owen Smith, a citizen of this state, died July 29, 1892, devising his real property in third parts to Henry Brogan, Patrick Brogan, and Thomas Smith, after the life estate of the widow. The plaintiff is the only son of testator, and was excluded from any part of the estate. Thomas Smith died October, 1892, a resident of Ireland and an alien. The defendant, Mary R. Reilly, is the only child of Thomas Smith, and is also an alien resident of Ireland. The plaintiff seeks a construction of the will declaring him the owner of the Smith third, on the ground that the devise is void, as being made to an alien, and that this third fell into intestacy. It seems anomalous to construe a will at the request of an heir claiming in hostility to it (Chipman v. Montgomery, 63 N. Y. 221); but no plea is urged in this behalf by the defense, and Mary R. Reilly claims an adjudication that this third belongs to her by the devise, and her succession to her father, Thomas Smith. The provision of the Revised Statutes (2 Rev. St. p. 57, § 4) declaring a devise to an alien void, and casting descent upon the heir, has been greatly changed by Laws 1845, c. 115, § 4, and Laws 1875, c. 38 (3 Rev. St. [9th Ed.] pp. 2073, 2074). Aliens are declared capable of taking as devisees, but, if males and of full age, shall not hold, as against the state, unless they file the declaration of intention to become citizens. No distinction is made by the latter statute between resident and nonresident aliens. Each may become children of the soil, as well as by adoption, and there is no reason to favor the resident who is indifferent to the blessings of American citizenship till spurred by pecuniary interest. The devisee, therefore, took title as against all but the state, and even against it when he filed his declaration. No person can question his right. Maynard v. Maynard, 36 Hun, 227; People v. Conklin, 2 Hill, 67, 71, 74; Stamm v. Bostwick, 40 Hun, 35; Id., 122 N. Y. 48, 25 N. E. 233, 9 L. R. A. 597; Wainwright v. Low, 132 N. Y. 313, 317, 321, 30 N. E. 747. But here the state, even, cannot assert title. The devisee, Thomas Smith, died in three months from the death of the testator, and before the will was probated. He had certainly a reasonable time to become a resident and file his declaration. The rigor of a stern logical rule may not be applied to this death, to determine the title lost forever, and, as an event occurred which made it impossible for Thomas Smith to enjoy the benefits of citizenship, the law will not add to the disaster of death the punishment of forfeiture, in order to grasp from the innocent survivor her little patrimony. The daughter took from the deceased father the title he had, subject to the performance of any condition imposed. As a female, she is not required to perform any condition subsequent looking to naturalization. Her title is now fixed and perfect. The complaint must be dismissed, with costs to defendant Reilly against plaintiff.

Complaint dismissed, with costs to defendant Reilly.

(31 Misc. Rep. 661.)

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KREBS et al. v. ROSENSTEIN et al.

(Supreme Court, Special Term, New York County. June, 1900.) BREACH OF PEACE-STRIKES-PICKETING OR PATROLLING-WHEN ALLOWABLE Plaintiff's complaint alleged that certain defendants were officers and members of unions which were organized to compel manufacturers to employ none but union labor, and to foster strikes and boycotts; that plaintiff's employés, induced thereto by such unions, left plaintiffs' employ; and that sundry disorderly acts were the result. Defendants squarely denied these allegations, and alleged that the unions were organized to procure employment at fair wages; that plaintiff's employés struck because they could not make a living; and the existence of the alleged disorder was de nied. No complaints were made to the police, nor were any arrests made. Patrolling and picketing were admitted by five defendants. Held, that the injunction must be dissolved, since the mere patrolling a neighborhood by a few persons, without attempt at coercion of others, is not illegal.

Action by Edward A. Krebs and others against Nathan Rosenstein and others. Motion by plaintiffs to continue an injunction. Denied, Einstein & Townsend, for plaintiffs. Vernon M. Davis, for defendants.

FITZGERALD, J. The plaintiffs move to continue and make permanent, until final judgment in this action, the injunction restraining the defendants from doing certain alleged unlawful acts set forth in the affidavits upon which the order to show cause was granted. The material question as to the truth of the allegations of the moving affidavits is raised upon the return by the sworn denials submitted upon the part of the defendants. Many of the material averments in the complaint and of the supporting affidavits are stated upon informa tion and belief. Among these is the charge that the Cigar Makers! International Union of America and local union No. 44, of which cer tain of the defendants are officers or members, are organized to compel the employment of members of said associations exclusively by all manufacturers of cigars, and to plan, advise, assist, and carry on strikes and boycotts against manufacturers who refuse to accede to the demands of such associations. This allegation, made upon information and belief only, is positively denied by the affidavits read in opposition, of the accused persons, who state that the objects of the associations mentioned are to advance mutual interests of the members, by endeavoring to procure employment for them by means of proper and lawful contracts made with manufacturers, by which such members can receive employment at a certain fair and just scale of wages, and under conditions satisfactory to both manufacturers and members. The statement on information and belief, also, in the complaint, that on the 9th day of March, 1900, plaintiffs' employés, under the instructions and by the advice and with the consent and connivance of certain of the unions, left the plaintiffs' employ and went on strike, is not only absolutely denied by these officers, but their denials are fortified by affidavits of many of the striking employés, four-fifths of whom were not members of the union, giving as their reason for quitting work the refusal of plaintiffs to furnish better stock; that by reason of this refusal, and of the poor grade of stock

furnished, a longer time was required to make a cigar, and their wages were thereby materially decreased, making it impossible for them to make a living. This statement is not denied by any one on the part of the plaintiffs. The alleged assaults and acts of disorderly conduct are squarely and positively denied; nor does it appear that any complaints were made to the police, or that any person was arrested. The patrolling and picketing are frankly avowed by four girls and one man, and the candor of the avowal is creditable to the truthfulness of the affiants. The first question raised is the purely legal one, whether picketing is of itself unlawful; for, if it should be held so, the plaintiffs would be entitled, as matter of right, to have this injunction made permanent. Our law recognizes the right of men and women to work or not to work as interests or fancy may incline them, and, if any number of employés determine to strike, there is nothing unlawful in their doing so. If by combination they can obtain shorter hours or higher wages, or in any other way advance their material interests, they may do so; and, to advance their purpose, they are free to strive to win over others to their support by reason, arguments, and proper appeal. "Argument, reasoning, and entreaty are lawful weapons." People v. Kostka, 4 N. Y. Cr. R. 435; People v. Wilzig, Id. 418. They must not attempt to coerce, by threat, menace, or intimidation, either employer, co-employé, or person willing to work under the conditions which are repugnant to the strikers. They may combine in defense. of their own rights, but they must not infringe the rights of others. This question of picketing has been discussed in a great many cases, all of which I have most carefully considered; and I cannot find, nor have I been referred to, any adjudications in this state holding that mere patrolling of a neighborhood by some few persons has been declared unlawful. In Rogers v. Evarts (Sup.) 17 N. Y. Supp. 264, the court, in dismissing the complaint, said: "The right to combine involves, of necessity, the right to persuade all co-laborers to join in the combination. This right to persuade co-laborers involves the right to persuade new employés to join the combination." In using this language, the matter of picketing was under consideration, because further on we find the following: "Picketing may be done in such numbers as to constitute intimidation." The same subject was considered by the court at special term in the case of Reynolds v. Everett, 67 Hun, 299, 22 N. Y. Supp. 306, and an injunction restraining defendants from picketing plaintiff's factory was refused. In Davis v. Zimmerman, 91 Hun, 489, 36 N. Y. Supp. 303, relied upon by the plain. tiffs, menace, threat, and attack, in the light of the opinion, must have been abundantly established by the proof. I have studied with care the record of Association v. Delaney (Sup.) 62 N. Y. Supp. 750, and the decision of the learned appellate division was that the record disclosed sufficient facts to warrant the exercise of the court's discretion in continuing the injunction; but upon examination I find that the special term order was modified by the insertion of the words, "in such manner as to express or imply a threat, intimidation, coercion, or force," in two places in the order. This amounts to a declaration that such unlawful elements were consistent with proof, and should be embodied in the order, so as to unmistakably indicate that the acts