Cement Co. v. Le Page, 147 Mass. 206; 9 Am. St. Rep. 685.. It is well settled that an exclusive right may be acquired in the name in which a business has been carried on, whether the name of a partnership or of an individual, and. it will be protected against infringement by another who assumes it for the purposes of deception, or even when innocently used without right to the detriment of another, and this right, which is in the nature of a right to a trademark, may be sold or assigned: Levy v. Walker, 10 Ch. Div. 436; Hoxie v. Chaney, 143 Mass. 592; 58 Am. Rep. 149; Bassett v. Percival, 5 Allen, 345; Russia Cement Co. v. Le Page, 147 Mass. 206; 9 Am. St. Rep. 685; Millington v. Fox, 3 Mylne & C. 338. In respect to corporate names the same rule applies as to the names of firms or individuals, and an injunction lies to restrain the simulation and use by one corporation of the name of a prior corporation which tends to create confusion and to enable the latter corporation to obtain, by reason of the similarity of names, the 469 business of the prior one. The courts interfere in these cases, not on the ground that the state may not affix such corporate names as it may elect to the entities it creates, but to prevent fraud, actual or constructive. The names of corporations organized under general laws, and in most other cases, are chosen by the promoters, and it would be an easy way to escape from the obligations which are enforced as between individuals, if a corporation were granted immunity by reason of their corporate character. The principle upon which courts proceed in restraining the simulation of names in the nature of trademarks, and have come to designate the business of a particular person or company, is stated in Lee v. Haley, L. R. 5 Ch. App. 155, an action to restrain the use by the defendant of the name of "The Guinea Coal Co.," in his business. "I quite agree (said Gifford, L. J.) that they (plaintiffs) have no property in the name (Guinea Coal Co.), but the principle upon which the cases on the subject proceed is, not that there is property in the word, but that it is a fraud on a person who has established a trade and carries it on under a given name, that some other person should assume the same name, or the same name with a slight alteration in such a way as to induce persons to deal with him in the belief that they are dealing with the person who has given a reputation to the name." The cases are not infrequent in which the use of corporate names has been restrained on the principle of the trademark cases: Holmes v. Holmes etc. Mfg. Co., 37 Conn. 278; 9 Am. Rep. 324; Massam v. Thorley Cattle Food Co., L. R. 14 Ch. Div. 748; Celluloid Mfg. Co. v. Cellonite Mfg. Co., 32 Fed. Rep. 94; Newby v. Oregon Cent. Ry. Co., 1 Deady, 609; Rogers Mfg. Co. v. Rogers & Spurr Mfg. Co., 11 Fed. Rep. 495; Le Page Co. v. Russia Cement Co., 51 Fed. Rep. 942. Whether the court will interfere in a particular case must depend upon circumstances; the identity or similarity of the names; the identity of the business of the respective corporations; how far the name is a true description of the kind 470 and quality of the articles manufactured or the business carried on; the extent of the confusion which may be created or apprehended, and other circumstances which might justly influence the judgment of the judge in granting or withholding the remedy. Whether, upon equitable principles, the remedy should have been awarded in this case upon the facts proved and found is the question in this case. If the right of the plaintiff to relief depended exclusively upon the comparison of the corporate names of the parties, and the inferences to be drawn from such comparison alone, and without reference to any extrinsic facts, it might well be doubted whether the names are so similar that the court could find that confusion and injury would be likely to arise. But the case does not rest alone upon the inferences from such comparison. It would naturally be inferred from the names that both parties were corporations. The name of "Higgins" appears in each. The name of the plaintiff does not itself indicate the business of the plaintiff corporation, while the name of the defendant describes its business. But while the plaintiff's name does not describe its business, its product has come to be known to the trade as "Higgins Soap," and to the public the name of the product identified the plaintiff as the manufacturer of this product, and the company came to be known and called, to some extent, the "Higgins Soap Company." The use of the name "Higgins" in connection with the business was valuable because of its use for a great number of years by the father of Charles S. Higgins and subsequently by the son, under which a large business had been built up, and by reason of the large sums which had been expended in advertising the product. The name of the plaintiff in connection with these facts indicated to dealers in soap that the article known as "Higgins Soap" was manu factured by the plaintiff. The manufacture had been established for fifty years, and carried on in the same place. Among the labels which were transferred to the plaintiff was one containing the words "Higgins Soap," and the word "Higgins" was placed upon many of the labels. It cannot be 471 doubted upon the findings that the reputation of "Higgins Soap," when the defendant corporation was organized, applied to and designated to the trade the soap manufactured by the plaintiff and its predecessors. The promoters of the defendant, knowing the history of the business established by Higgins, Sr., in 1846, its transfer to the plaintiff, that the product was known to the trade as "Higgins Soap," that the business had become very valuable, and that large sums had been expended in advertising it, proceeded to organize the defendant corporation under the name of the "Higgins Soap Company," and to manufacture soap in the same city where the plaintiff's business was carried on. The inference seems irresistible that the defendant assumed its corporate name so that it should carry the impression that it was the manufacturer of "Higgins Soap," so well known to the public. But if the name was assumed in good faith, and without design to mislead the public and acquire the plaintiff's trade, the defendant, knowing the facts, must be held to the same responsibility as if it acted under the honest impression that no right of the plaintiff was invaded. The names are not identical, but, as said by Bradley, J., in Celluloid Co. v. Cellonite Co., 32 Fed. Rep. 94: "Similarity, not identity, is the usual recourse where one party seeks to benefit himself by the good name of another." In that case the learned and experienced judge who sat therein expressed the opinion that the use of the corporate name of the defendant should be restrained, although there was a much greater dissimilarity between the names there in question than exists between the names of the parties here. As between these parties the case is, we think, the same as if the word "soap" was written into the plaintiff's name and its corporate designation was "Chas. S. Higgins Soap Company." The evidence shows that confusion has arisen, and it is a reasonable presumption that if the defendant is permitted to continue to carry on the business of soapmaking under its present name the public will be misled and the plaintiff's trade diverted, the extent of such diversion increasing with the increase of the defendant's business, 472 We think the plaintiff, upon the facts found and proved, was entitled to relief by injunction. The judgment should be reversed and a new trial granted. - TRADEMARKS-USE OF ONE'S OWN NAME-TRANSFER OF BUSINESS. One who transfers a business and the goodwill thereof, including trademarks, a part of which is his name or initials, and at the same time enters into an agreement by which he is to be employed as manager of the business, has no right, on being discharged as such manager, to enter upon business on his own account and use such trademarks therein: Symonds v. Jones, 82 Me. 302; 17 Am. St. Rep. 485, and extended note. Generally one using his own name as a trademark cannot deprive another having the same name from using it in conducting his business, provided the latter resorts to no device or artifice to create the impression that the goods manufactured or sold by him are manufactured or sold by the former: Frazer v. Frazer Lubricator Co., 121 Ill. 147; 2 Am. St. Rep. 73, and note; El Modello Cigar Mfg. Co. v. Gato, 25 Fla. 886; 23 Am. St. Rep. 537, and note. See, also, the note to Russia Cement Co. v. Le Page, 9 Am. St. Rep. 688. TUBRIDY V. WRIGHT. [144 NEW YORK, 519.] MECHANIC'S LIEN.-ON THE DEATH OF THE OWNER OF PROPERTY the right to file a mechanic's lien thereon terminates. Lawrence E. Prendergast, for the appellant. William J. Leitch, for the respondents. 520 HAIGHT, J. This action is brought to foreclose a mechanic's lien. It appears that one Samuel O. Wright, in his lifetime, was the owner of seven houses in the course of erection in the city of New York; that he entered into a contract with the plaintiff to do the plumbing therein for the sum of eleven thousand dollars; that the plaintiff entered upon the performance of his contract, and had nearly completed the same when the work was postponed, by the mutual consent of the parties, until further direction by Wright. Shortly thereafter Wright died, leaving a will whereby he devised his property to the defendants in trust. The defendants then called upon the plaintiff to complete his contract, which was done; and thereafter, within the ninety days prescribed by the statute, he filed a lien against the property for the sum of two thousand five hundred and fifty-seven dollars and seventy cents, the amount then remaining unpaid upon his contract. 521 The referee found that the value of the work done by the plaintiff, under the direction of the defendants, was the sum of sixty dollars, for which amount he ordered the usual judgment, and refused to include the balance of the plaintiff's claim. The question presented upon this review is as to whether the plaintiff acquired a valid lien upon the property for the work done under the contract prior to the death of the defendant's testator. It has been held that, upon the death of the owner of real property, the title passes to his heirs at law or devisees, and that the right to file a mechanic's lien for materials furnished and labor performed terminates with his death: Crystal v. Flannelly, 2 E. D. Smith, 583; Meyers v. Bennett, 7 Daly, 471; Brown v. Zeiss, 9 Daly, 240; Leavy v. Gardner, 63 N. Y. 624. It is contended, however, that these decisions were made under other statutes, and were based upon special language incorporated therein, and that they should not be regarded as decisive of the question now presented. The statute under which the plaintiff sought to perfect his lien is chapter 342 of the laws of 1885. Section 1 of the act gives to the person performing the work or furnishing material used in the erection of any building, etc., with the consent of the owner, a lien to the extent of the owner's interest therein, not, however, exceeding the amount remaining unpaid upon the contract. Section 4 gives him the right to file his lien at any time during the performance of the work or the furnishing of the materials, or within ninety days after the comple. tion of the contract. Section 5 provides that "the liens provided for in this act shall be preferred as prior liens to any conveyance, judgment, or other claim which was not docketed or recorded at the time of filing the notice of lien prescribed in the fourth section of this act," etc. The statute under which Brown v. Zeiss, 9 Daly, 240, was decided provided that "the liens provided for in this act shall be preferred to any lien, mortgage, or other encumbance of 522 which the lienholder had no notice, and which was unrecorded at the time of the filing of the claim," etc. It will be observed that the only material change in the statute is the incorporating therein the word "conveyance," and it is not apparent how this affects the construction of the statute as to the question under consideration. No provision |