Misc.] Surrogate's Court, Westchester County, February, 1899.

The conclusion strongly addresses itself to the mind that the legislature never intended to annex any part of the county of Westchester to the city and county of New York, except for city purposes; that it did not intend that the part of Westchester county which it annexed should have any different status than that part of the county of Queens which was annexed. At the time of the passage of the 1895 act the enlargement of the city was a matter of large public interest and notoriety and had had legislative consideration in the 1894 act. The purpose and intention had been clearly expressed, which was not the enlargement of the county, but the creation of a great city, but the plan by which it should be accomplished had not then been formulated. The legislature, however, in its wisdom anticipated the adoption of the entire Greater New York project by the annexation of a part of Westchester county. That their purpose was not clearly expressed in their act cannot be questioned; the act was carelessly prepared and lacked that consideration which was accorded to the subsequent acts of the legislature on the same subject. Giving to the words of the statute their fullest significance, the Constitution would be violated. At the time of the adoption of the Greater New York charter the legislative intention for the Greater New York had fully crystallized, and a complete and harmonious plan was put in operation. This plan left counties undisturbed, while at the same time the object of a greater city was attained.

The act of 1895 should be read together with the acts of 1894, 1896 and 1897, and the legislative intention gathered from the whole.

It is unnecessary, however, for this court, in the case before us, to decide more than that for judicial purposes, including its jurisdiction to grant letters, there has been no change in the county of Westchester and it is unaffected by the act of 1895, chapter 934. An order may be entered that letters of administration issue to the petitioner.

Decreed accordingly.

Supreme Court, February, 1899.

[Vol. 28.

FREDERICK J. BRUCE, Plaintiff, v. THE FISS, DOER & CARROLL HORSE CO., Defendant.

(Supreme Court, Kings Trial Term, February, 1899.)

Action for breach of warranty in the sale of a horse - Damages to person and property recoverable.

In an action on contract to recover damages for a breach of warranty in the sale of a horse, although no fraud or deceit are alleged by the plaintiff, he may recover damages to his person and property which resulted from the horse's running away, as such damages must have been in the minds of both parties as likely to occur if the warranty, that the horse was kind and gentle, proved untrue.

MOTION for a non suit reserved till after verdict. Action for damages for breach of warranty in the sale of a horse. The plaintiff applied to the defendant, a dealer in horses, to purchase a horse to be used in his practice as a physician, of which he informed defendant. The defendant sold him a horse for such use, warranting it gentle and kind. When the plaintiff went to use it it kicked the wagon and over the dashboard in a spell of kicking and ran away. It was a vicious and dangerous horse. The plaintiff suffered personal injury and the wagon was broken. The action was brought to recover the damages caused by such injury to person and property. The complaint was based on an allegation of breach of the contract of warranty only, alleging no fraud or deceit in the making thereof.

Charles P. Barker for plaintiff.

Edward M. Grout for defendant.

GAYNOR, J.: I think on reflection that the damages for injury to person and property are recoverable in this action, and not confined to an action of tort. Many cases may be cited where like damage was recovered, but in actions of tort, viz., on an allegation and proof of deceit or fraud in making the warranty. But to say that such damage may be recovered in an action for deceit does not hold it not recoverable if there be no deceit, but only a breach of the contract of warranty. The damages recoverable in the latter case are

Misc.]

Supreme Court, December, 1898.

such as must have been in the minds of both of the contracting parties as likely to occur if the warranty should not prove true. In Smith v. Green (L. R. 1 C. P. Div. 92) the case was the warranty of a cow free from the foot and mouth disease. She was in fact infected with the disease, and gave it to the purchaser's herd. He sued for damages, claiming not only for the cow warranted but for the loss to his herd. There was a count for breach of the warranty and another for fraud in the making of it. The jury found the warranty, but that there was no fraud. On motion to reduce the damages to the loss of the cow, and on appeal, it was contended for the defendant that for a mere breach of the warranty he was not responsible for the loss of the other cows, though he would have been if he had been guilty of a false representation. It was held that the measure of damage was the same without the fraud, as the result if the cow was infected must have been in the minds of both parties. So must the result of driving a kicking and run-away horse to a light wagon be in the minds of both parties when the horse is being bought and warranted kind and gentle for that purpose. The cases Allen v. Truesdell (135 Mass. 75) and Case v. Stevens (137 Mass. 551) are in tort, the latter not being easy to understand. I think the law is with the plaintiff, unless it may be avoided by some subtle distinction which is without foundation in reason (Short v. Matteson, 81 Iowa, 638; Swain v. Schieffelin, 134 N. Y. 471; United States Trust Co. v. O'Brien, 143 N. Y. 284; Walker v. Milner, 4 F. & F. 745).

The motion is denied.

SAMUEL COHN, Plaintiff, v. JOHN REYNOLDS, Defendant.*

(Supreme Court, Kings Special Term, December, 1898.) Trade-mark - Exclusive right to use "valet" as designating the renovation of clothes.

The use of the foreign word "valet", as a designation for the business of collecting and renovating worn clothing, is new and peculiar and a person, earliest entitled to so use in a city the name "The Brooklyn Valet", may restrain a city competitor in the same business from using the words "My Valet" in his trade and on his signs.

* Received too late for insertion in proper place.- [REP.

Supreme Court, December, 1898.

[Vol. 26.

ACTION to restrain the use of a trade-mark.

Eugene V. Brewster, for plaintiff.

James G. Tighe, for defendant.

JOHNSON, J. The plaintiff is carrying on business under the name of “The Brooklyn Valet ". The evidence as to the character of the business is not full; but is, I think, fairly established and it seems to be practically conceded, that he has wagons which go around collecting men's clothing and bringing it to his place of business where it is repaired, pressed, cleaned and generally renovated. The plaintiff purchased that business in the early part of the year 1897, and his vendor seems to have been the first person who carried on such a business, using the name of "Valet" or "Brooklyn Valet ". The defendant starting in business in the same city, later than the vendor of the plaintiff, has established a business similar to that of the plaintiff, which he carries on under the name of "My Valet ", making the words last quoted prominent and distinctive on his signs. The plaintiff sues for an injunction to restrain the defendant from carrying on business in that name. There is but little evidence that the plaintiff has been injured in his business by the defendant. But it is well settled that it is not necessary to prove an injury if the other facts in the case indicate that injury would naturally result. Vulcan v. Myers, 58 Hun, 161; 139 N. Y. 364; Amoskeag Mfg. Co. v. Trainer, 101 U. S. 51. The evidence does not indicate any imitation of the business insignia of the plaintiff other than in the use of the word "Valet ". Practically, then, the question in this case is, whether or not the word "Valet" is a word which can be appropriated to this business so as to serve the purpose of a trade-mark. Words, which are merely descriptive of the article they are used to designate or represent, cannot be so appropriated as to give any exclusive right to their use, and hence cannot become what are generally known as trade-marks. Newman v. Alvord (Akron Cement case), 51 N. Y. 189; Lackawanna Coal case, 13 Wall. 311.

Clearly distinguished from such descriptive words as "Akron Cement" or "Lackawanna Coal" are such words as "Sapolio ", "Celluloid "words which were invented for and are applied to a particular use, and which are clearly trade-mark words.

Misc.]

Supreme Court, December, 1898.

But intermediate these two classes are words which are not new, but are used to indicate a substance of which they are not properly descriptive, their application to such purpose being new, arbitrary or fanciful, and in some degree a matter of invention. Such a new and peculiar use of words which are not new, in a proper case, will be protected by the court. Among the words or terms which it has been held may be so used and protected are "Crystal" castor oil, "Damascus blade" scythes, "Gaslight" illuminating oil, "German" soap, Water White" petroleum, "Tip Top" agricultural implements. Brown on Trade-Marks, p. 717, index.

66

Doubtless these words convey some suggestion of the quality of the articles to which they were applied, and for that reason they were selected and used. But that did not make them words of description. An ordinary scythe is hardly described as a "Damascus " blade, and yet the use of those words as towards a scythe, while deceiving no one, would probably indicate that the scythe was of good steel and temper, was a good and serviceable scythe.

The question presented is whether the word "Valet" is descriptive of the business carried on by the plaintiff, or whether applying it to indicate that business was such a new, arbitrary and fanciful use as will entitle it to the protection of the court.

The business carried on by both the plaintiff and the defendant was practically the business of a renovating tailor, a tailor whose business was confined to repairing or renovating worn clothing. If the words "Brooklyn Tailor" or "My Tailor" had been adopted, they would clearly have been descriptive and their use could not be enjoined. But the word "Valet " has, I think, a meaning radically different. The word seems to have come to us from the French; it means not merely a servant, but a body servant, one who waits and attends on another, who is expected not only to serve, but to serve promptly with perhaps something of obsequious haste or attention. Hardly would a valet be expected to mend or press or clean clothes; but he might be expected, as a part of his personal and peculiar service, to see to it that such work was done, and to help his master in dressing, brushing or cleaning his attire. The word, from its derivation and its use, seems to carry with it an idea of peculiar rank, gentility or at least of luxurious appointments and living. To select and apply such a word to the business of a tailor of a tailor who confines his work to the mending, cleaning,