inches in diameter, placed just inside the curbstone, is sufficient to authorize the construction of a permanent iron structure one hundred feet long and nineteen feet wide, covering the entire sidewalk and extending over the curbstone about a foot, the roof of which is made of light, corrugated iron, and is supported by iron columns three and one-half inches in diameter, placed twelve feet apart just inside the curbstone and imbedded in the ground. (3) The maintenance of a structure which obstructs a city street will not be enjoined by the courts when such structure has been erected by virtue of authority lawfully given by the city council. Dec. 1, 1891. Hoey v. Gilroy. Opinion by O'Brien, J. 14 N. Y. Supp. 159, reversed. Peckham, J., dissenting.

Territory, the Supreme Court held the service in the light metal may be erected across the sidewalks of the case before it defective, and the decree void. May-city, to be supported on iron posts not more than six nard v. Hill was an action in equity to charge the defendants as trustees of certain lands in Washington Territory, and to compel a conveyance thereof to the plaintiffs. The case involved the legality of a legislative divorce granted by the Legislature of the Territory of Oregon, but the consideration of this question was by the facts of the case confined wholly to the Territory within which the decree was granted. Neither case questioned the rule prevailing in this State, and the decree in Maynard v. Hill goes no further than that a divorce granted without service upon or personal appearance of the defendant establishes the status of the parties to it within the State in which it is rendered. It does not overrule the decisions of this State, but is in harmony with them, as it has never been denied by our courts that a State may adjudge the status of its citizens toward a non-resident, and that, so long as the operation of the judgment is kept within its own confines, other States must acquiesce. People v. Baker, 76 N. Y. 78-84. This subject had very full and careful consideration in the case cited, which was an extreme one, and until it is squarely overruled by a court of ultimate authority, must and will be regarded as settling the law in this State. O'Dea v. O'Dea, 101 N. Y. 23; Jones v. Jones, 108 id. 415-423; De Meli v. De Meli, 120 id. 485-495. Second Division, Dec. 1, 1891. Williams v. Williams. Opinion by Brown, J. 6 N. Y. Supp. 645, affirmed.

MECHANICS' LIEN-ENFORCEMENT-EVIDENCE- (1) At the trial of an action to foreclose a mechanic's lien, plaintiff's counsel, in offering proof of the notice of lien, stated that it was filed on a certain day. No proof of said date of filing was given, but the notice claimed interest from a previous date, and was itself dated the day before the date of filing stated, and a copy was served on the owner the next day thereafter. Held, that in the absence of any specific objection for want of proof of the date, the referee was justified in finding the notice to have been filed on the day stated by counsel. (2) A certified copy of a notice of mechanic's lien offered in evidence was objected to as "not properly certified." Held, that such general objection did not reach a mere informality in certification, where proper proof might have been furnished had the defect been specified. (3) In a notice claiming a mechanic's lien for work under a contract, and for extra work, the lienor, after particularly describing the work under the contract, stated that he "performed certain extra work in and about the building and premises aforesaid, and furnished certain materials therefor, of the reasonable value, etc. Held, that this sufficiently specified the nature of the extra work as required by the Lien Law. Laws 1885, chap. 342, § 4. (4) Where the owner of premises, who has contracted for work thereon, fails to pay for the work as agreed, the contractor may abandon the work and may enforce a mechanic's lien for a quantum meruit for the work done. Oct. 27, 1891. Hunter v. Walter. 12 N. Y. Supp. 60, affirmed, without opinion. Andrews, Finch and Gray, JJ., dissenting.

MUNICIPAL CORPORATIONS-POWER OF TAXATION.Laws of 1889, chapter 475, section 19, amending Laws of 1885, chapter 20, section 106, declares that the aggregate of the annual city tax of Syracuse shall not exceed a stated sum, provided however" that in the levy for the year 1889 "there may be included * * * for payment in whole or in part of the cost of opening and improving C. avenue, a sum of $5,000," and that

there shall be included the further sum of $10,000 for the improvement of B. park." Held, that the provision as to C. avenue was permissive merely, and not mandatory. Oct. 6, 1891. People, ex rel. Comstock, v. Mayor, etc., of Syracuse. 12 N. Y. Supp. 890, affirmed, without opinion.

NEGLIGENCE-DANGEROUS PREMISES-LIABILITY OF LANDLORD FOR INJURY TO TENANT.--(1) The owner of a tenement-house is liable for injuries to an occupant thereof, caused by the falling of a ceiling in a hallway on the first floor, used in common by the tenants on the floors above, and which was the only means of access to their apartments, provided that he knew of the defect that caused the fall. Donohue v. Kendall, 50 N. Y. Super. 386; 98 N. Y. 635; Palmer v. Dearing, 93 id. 7; Looney v. McLean, 129 Mass. 33; Lindsey v. Leighton, 150 id. 585; Pell v. Reinhart, 127 N. Y. 381. (2) Where in such a case the attention of a person who collected the rents of the building and attended to repairs was called to the defect in the ceiling, the owner was sufficiently charged with notice of it. (3) In such case contributory negligence cannot be imputed to a tenant who passes under the ceiling knowing that it is in a dangerous condition. Palmer v. Dearing, 93 N. Y. 11; Weed v. Village of Ballston Spa, 76 id. 329; Bassett v. Fish, 75 id. 303, 307. (4) In an action for loss of services resulting from injuries to a minor child accustomed to performing house work, prospective damages may be awarded where the evidence justifies the conclusion that the loss of services will be continuous. Drew v. Railroad Co., 26 N. Y. 49; Cum. ing v. Railroad Co., 109 id. 95. Second Division, Dec. 1, 1891. Dollard v. Roberts. Opinion by Bradley, J. 8 N. Y. Supp. 432, affirmed.

PARTNERSHIP-RIGHTS OF PARTNER-PLEADINGVARIANCE REFERENCE.-(1) A letter written by S. to MUNICIPAL CORPORATIONS - ORDINANCES-STREET P., stating the terms of a proposed agreement between OBSTRUCTIONS - AWNINGS — INJUNCTION.—(1) Under M., S. and P. for the manufacture, shipment and sale the New York Consolidation Act (Laws 1882, chap. of certain goods as a joint enterprise, profits to be 410), section 86, which authorizes the common council divided between the three, was accepted by P., and in to make ordinances, not inconsistent with law, to pre- pursuance of the agreement the goods were shipped to vent encroachments on and obstructions to the city and partly sold by him. M. assigned his interest in the streets, and to regulate the use of streets and sidecontract to S. Held, that S. was entitled, as against walks for signs, awnings and other purposes, the coun- P.'s individual creditors, to two-thirds of the proceeds cil may by ordinance authorize the erection and main- of the goods sold, and of the goods still in P.'s hands. tenance of awnings over the sidewalks. (2) An ordi- Bank v. Peters, 123 N. Y. 272; Knatchbull v. Hallett, nance which provides that awnings of tin or other | 13 Ch. Div. 723; Van Alen v. Bank, 52 N. Y. 4; Sad

ler's Appeal, 87 Penn. St. 158. (2) The answer of S. set forth his claim of an interest in the goods specifically, but averred that P. acted "as selling agent." Held, that S. was not thereby precluded from recovering his share of the proceeds as upon a partnership transąction, especially as no objection on the ground of variance was made at the trial. (3) Under Code of Civil Procedure, section 1013, which authorizes courts to order a reference to report the referee's findings upon one or more specific questions of fact involved in the issue," a court may, after rendering an interlocutory judgment establishing plaintiff's lien on a fund in the hands of a receiver, order a reference to determine the respective rights of defendants to the residue of the fund. Dec. 1, 1891. Drexel v. Pease; St. Arnaut v. Mechanics' Nat. Bank. Opinion by O'Brien, J. 13 N. Y. Supp. 774, affirmed.

PATENTS-LICENSE-ASSIGNMENT - JURISDICTION TRADE-MARK.-(1) An action to determine whether a license to make and sell a patented article has been given is cognizable by the State courts, since it does not arise "under the patent laws of the United States." Hartell v. Tilghman, 99 U. S. 547; Albright v. Teas, 106 id. 613; Manufacturing Co. v. Hyatt, 125 id. 46; Ingalls v. Tice, 14 Fed. Rep. 352; Trading Co. v. Glaenzer, 30 id. 387; Merserole v. Paper Collar Co., 6 Blatchf. 356; Hyatt v. Ingalls, 124 N. Y. 93; Middlebrook v. Broadbent, 47 id. 443; Store Service Co. v. Clark, 100 id. 365; Marston v. Swett, 82 id. 526; Plow Works V. Starling. 127 U. S. 376; Manufacturing Co. v. Reinoehl, 102 N. Y. 167; Smith v. Machinery Co., 19 Fed. Rep. 825. (2) An assignment of a patent subject to a previous exclusive license to make and sell the patented article gives the assignee no right to make or sell the patented article during the existence of the license. (3) The use of the word "ideal," as applied to fountain pens, constitutes a valid trade-mark. Thus we have a case where, in the language of this court in Selchow v. Baker, 93 N. Y. 59, 69, 66 a manufacturer has invented a new name, consisting * ** of a word *** in common use, which he has applied for the first time to bis own manufacture, or to an article manufactured for him, to distinguish it from those manufactured and sold by others; and the name thus adopted is not generic or descriptive of the article, its qualities, ingredients or characteristics, but is arbitrary or fanciful, and is not used merely to denote grade or quality." While the word "fountain," as applied to pens of a certain kind, is a common appellative, the word "ideal," as applied to fountain pens, is nondescriptive, arbitrary and fanciful, and has no natural or necessary application to a pen. It serves to indicate that the article sold by Waterman was of his own manufacture. The right to so use it was in the nature of property, and had become valuable. The use of it by the defendants tended to deceive purchasers by inducing them to believe that the pens sold by them were made by one who had established the reputation of his wares by the superiority of his workmanship and the excellence of his materials. The result, being injurious to the public as well as to the plaintiffs, authorized a court of equity to interpose its preventative remedy for the protection of both the pri vate right and the public interest by restraining the defendants from passing off wares of their own manufacture as those made by another. The ground of interference by the court is the false representation by the defendants through their acts in stamping the pens made by them with a word that has obtained currency as indicating pens made by Waterman. Even if in so doing they did not intend to defraud, as the necessary tendency of their acts was to deceive the public, the court was authorized to interfere. Newman v. Alvord, 51 N. Y. 189; Canal Co. v. Clark, 13 Wall. 311;

Manufacturing Co. v. Wilson, 24 Wkly. Rep. 1023; Sykes v. Sykes, 3 Barn. & C. 541; Millington v. Fox, 3 Mylne & C. 338; Celluloid Manuf. Co. v. Cellonite Manuf. Co., 32 Fed. Rep. 94; Manufacturing Co. v. Larsen, 8 Biss. 151. (4) The use of a name to indicate a patented article does not prevent the patentee from asserting that such name is a trade mark. Second Division, Dec. 8, 1891. Waterman v. Shipman. Opinion by Vaun, J. 8 N. Y. Supp. 814, reversed.

RAILROAD-STREET-ENTERING MOVING CAR.-Plaintiff, in an action against a horse railway company, testified that on the approach of one of defendant's cars he signalled it to stop; that the speed of the car was slackened; that as it passed he seized the hand-rail on the rear platform, and planted his foot on the step; that the brake was relaxed, and the car started with a sudden jerk, throwing his feet from under him, and dragging him some distance, injuring him severely. Held, that the question as to negligence on the part of defendant and contributory negligence on the part of the plaintiff was for the jury. Eppendorf v. Railroad Co., 69 N. Y. 195; Black v. Railroad Co., 108 id. 640; Nichols v. Railroad Co., 38 id. 131; Keating v. Railroad Co., 49 id. 673; Hayes v. Railroad Co., 97 id. 259, distinguished. Second Division, Dec. 1, 1891. Morrison v. Broadway & S. A. R. Co. Opinion by Bradley, J. 8 N. Y. Supp. 436, affirmed.

RES ADJUDICATA - FORECLOSURE-PARTIES-ADVERSE POSSESSION—EVIDENCE.-(1) An equity of redemption owned by an assignee in bankruptcy, as such, is not barred by a foreclosure in which he is made a party, and is served and appears in his individual name only, and in which his official character is in no wise mentioned. 112 N. Y. 93, approved. (2) In 1835 P. conveyed certain premises to S., receiving a mortgage for the purchase-money. 8. conveyed to W., who in 1843 was declared a bankrupt. In 1845 P. commenced suit to foreclose the mortgage, without making W. or his assignee a party. The premises were sold under a decree of foreclosure, and purchased by P. who received a deed in 1846. Plaintiffs' testator purchased the premises at judicial sale in an action of partition between P.'s heirs, in 1858, and received a deed in 1859. At this time Z. was in possession of the premises, and plaintiffs' testator agreed that he might hold them without payment of rent, which he did until 1865. He then transferred his occupation of the premises and all the rights he had therein to B., who remained in possession until 1873, when he died. After his death B.'s widow remarried, and continued until 1884 to occupy the premises, "the same as her [first] husband had done." In 1873 defendants received a deed for the premises from a purchaser of the equity of redemption owned by W.'s assignee. In 1875 they built a fence around the premises, but it did not appear that the occupation of the tenants was in any way interfered with, or that plaintiffs' testator was 'even aware that the fence had been built. Defendants did not obtain possession until 1884. Held, that plaintiffs' testator had been in possession for more than twenty years from 1859, claiming adversely, and that such possession was not interrupted by the building of the fence, or by the fact that Z., while tenant at will, had demised his holding to B., in the absence of any showing that plaintiffs' testator had chosen to regard it as a disseizin. Dec. 1, 1891. Landon v. Townshend. Opinion by Peckham, J. 14 N. Y. Supp. 522, affirmed.

SALE-GOOD-WILL-CONVEYANCE-PAROL EVIDENCE. -(1) On a sale by defendant to plaintiff of a bakery business at S., a written contract and bill of sale were executed, which described the property sold as "the leases and business carried on by said [defeudant] as a

censee.

statute.

owner of any of the telephone patents, but only a liWhatever claims that company had in the patents were transferred by it to the National Bell Telephone Company under the contract of November 10, which provided that thereafter the telegraph company should have the exclusive use of the telephone for purposes of telegraphy. But the enforcement of this part of the contract would violate the rule, that when the use of a patented device is thrown open to the public, or to classes of the public, all are entitled to use it on the same terms as others in the same class, and therefore any contract or agreement which would effectually evade the rule must be declared void as being against public policy, both at common law and by The authorities referred to by the counsel for the respondent to support their theory, that a patentee can control the use of his patent, are specially applicable to patents and patented articles designed for private use. In the Vermont case, supra (17 Atl. Rep. 1071), the distinction between the law governing the private use of a patent and the law governing its public use is briefly but clearly stated, and it was there said: "Patents are property and the right to sell or lease them is subject to the same restrictions as other property. The patentee cannot lease them for any use that contravenes principles of public policy. If he leases them for a public rather than an individual use, he thereby gives the use to the whole public. In this case the American Bell Telephone Company might have licensed its patent to the defendant so the latter alone could have used it, but when it went beyond this, and licensed the defendant to use it for the public, it in fact licensed it for all who desired its use and offered compliance with reasonable conditions." That decision was rendered in 1889, and is the most recent one of the adjudications on the questions now under discussion which have been brought to our notice. The decisions of the courts in Pennsylvania, Maryland and Indiana were made with reference to the statutes of those States, which had been enacted for the regulation of telephone companies, limiting charges and prohibiting discriminations, but there is a concurrence of opinion in the conclusion that those companies are subject to the common-law rules which pertain to all common carriers. In Nebraska and Vermont, in the absence of any general statutes on the subject, the courts have held the same doctrine. The respondent is a common carrier which has offered to the public the use of a telephonic system for the rapid conveyance of oral messages from one point to another; that one of the most important duties of a common carrier is that it shall serve all persons alike, impartially and without unreasonable discrimination, and that the performance of this duty cannot be avoided by a special contract made between the respondent or its licensor and one or more persons for the exclusive use of the system, such contract being void as against public policy, and that a patented device or devices, when employed for a public use, or by a common carrier in the prosecution of its business, will be subjected to the rules and regulations which govern unpatented property under the same circumstances. U. S. Circ. Ct., D. Del., July, 1891. State, ex rel. Postal Telegraph Cable Co., v. Delaware & A. Telegraph & Telephone Co. Opinion by Wales, J. 47 Fed. Rep. 633.

CORRESPONDENCE.

LIEN OF COLLECTORS' BONDS.

Editor of the Albany Law Journal:

The decision of the Court of Appeals in the late case of Crisfield v. Murdock et al., reported in volume 127 of the New York Reports at page 315, appears to have

settled the law of this State with respect to the character of the lien of collectors' bonds. The court held in that case that the lien of the bond of the collector, Murdock, and his sureties, Faulkner and Whiteman, when filed as required by the statute, and before the recording of a prior mortgage of the defendant Wadsworth (which mortgage was duly given for a valuable consideration by the surety Faulkner to the defendant Wadsworth, some months prior to the date of the filing of the said collector's bond), was not superior to the lien of the said unrecorded mortgage of the defendant Wadsworth. The statute makes collectors' bonds a lien upon the real estate of the collector, and his sureties were evidently intended solely for the protection of the public moneys in the hands of the collector, but under the construction given to the statute in the above-mentioned case, it can readily be seen that the statute affords only partial protection.

My suggestion is that the statute with reference to collectors' bonds should be so amended as to require the execution of the bond to be duly acknowledged and the sureties to justify in the usual manner, and the bond when so executed and acknowledged to be recorded and become a lieu in the nature of a mortgage.

Under the statute as it now exists collectors' bonds are not within the Recording Act, and the liens of prior unrecorded mortgages are superior to them. If all the sureties upon the collector's bond at the time the same was executed and filed had outstanding unrecorded mortgages, for the full value of their property, as did the surety Faulkner in the case above mentioned, the lien of the collector's bond under the statute as it now exists would be no protection to the public money.

Again, if, as in the case above mentioned, one of the sureties had outstanding unrecorded mortgages against his property, his co-surety is deceived thereby and a manifest injustice is done to him. If the lien of the collector's bond is elevated to the dignity of a mortgage lien, brought within the Recording Act, a co-surety would have only himself to blame if he were deceived, for the official records would show the true condition of the real property of both the collector and his sureties.

To my mind the present condition of the statute above referred to is worthy the consideration of our law-makers. N.

Bonsack Machine Co. v. Woolrum, in the Virginia Court of Appeals, Fauntleroy, J., thus defined the phrase, "and this contract is, for value received, declared ended and settled":"The contract itself is abrogated-ended.' What does ended mean? It means final, definitive, complete, conclusive. It imports what will be, when the Apocalyptic Angel, with one foot on the sea and the other upon the earth, shall lift his hand to heaven, and swear, by Him that liveth forever and ever, that there shall be time no longer.' It will not then be admissible to offer parol testimony to alter, vary and contradict the explicit terms of the awful declaration; and to prove, that non obstante the unambiguous words themselves, Time (still) rolls his ceaseless course,' for some of the provisions of man's tenure upon earth."

In these days of agricultural depression it would be a subject for regret if the technicalities of the law stood in the way of the peasant utilizing his farm in the most profitable way where he is not tied down by express contract to any particular form of culture or rotation