premises subject to easements, e. g., a right to certain water power; also to keep up a dam and to the use of a spring.

Appeal from a judgment dismissing plaintiff's complaint. Action to recover damages sustained by plaintiff for breach of a written contract to exchange a exchange a tanyard in Oakland, Oakland, Sullivan County, New York, for certain property in the city of New York, the tanyard property to be subject to a mortgage of $3,500. Plaintiff at the time and place named in the contract tendered a deed of the tanyard property, subject to the mortgage aforesaid, which deed excepted and reserved from the premises conveyed the "Cuse the Cuse water power, at or near the butternuts," and excepted and reserved the right to draw water down the raceway, and also the right to keep up the dam across the raceway, for said water power, or any other use the party of the first part, etc., may elect to use said water power for; also the right to enter at any time upon said premises to erect, rebuild or repair the said dam; and also excepting and reserving the spring of water, and the right to draw water therefrom, over or through said premises to the house where it is now drawn for use, and the right of ingress and egress to and from the same, with the right to retain and repair the pipe through which water is conveyed over or through the premises attempted to be conveyed, etc.

Jackson & Martine, for respt.

Held, That in the case of an executory contract for the sale of land, the vendor impliedly warrants that he has a good title to the land sold; and the vendee has the right if the title be defective to refuse to receive it, and is not bound to take the title to the premises when there are incumbrances on it, unless he expressly agreed to do so.

In this case the conveyance excepts and reserves out of the property, Cuse water power, a right to keep up a dam and a spring. It does not appear how extensive. a use of the tanyard property such a right might involve, and for all that appears it may involve the use of the whole property; but, in any event, defendant was to have the tanyard property subject to a mortgage of $3,500, and not subject to the right of other persons to maintain dams, and the property with the water power excepted in addition to the mortgage.

The contract being a mutual one, neither could recover against the other for a breach of its terms or put the other in default without tender of performance, or at least proof of a readiness and willingness to perform.

Judgment affirmed, with costs. Opinion by Ingraham, J.: O'Gorman, J., concurs.

ALIMONY. AMENDMENT.

deed.

S. R. Taylor and C. C. Bull, for applt.

TERM.

Emma R. Johnson, applt., v.

Richard L. Johnson, respt.

Decided June 29, 1883. Where plaintiff in an action for divorce, relying on defendant's promise that he would pay her from time to time a fair amount, etc., in lieu of alimony, refrains from mak

ing provision therefor in the decree, though the same was demanded in the complaint, she cannot thereafter have the decree amended in that regard.

Appeal by plaintiff from order of Special Term, denying her motion to amend the judgment of divorce in this action, entered December 15, 1877, by inserting therein a provision allowing alimony to plaintiff, such judgment making no provision on that point. It appears from plaintiff's motion papers that although she had demanded alimony in her complaint, yet no provision was made therefor in the judgment, because defendant requested such omission, promising, if she would waive such a provision, he would faithfully pay her moneys from time to time in a fair and reasonable amount, also that he would pay her onehalf of his wages every month as long as she needed it, and that plaintiff, relying upon such promise, consented to the entry of the judgment without any provision for alimony. The promise is denied by defendant.

D. J. Newland, for applt. Johnes & Wilcox, for respt. Held, That no ground for reopening the judgment was shown by the moving papers. Plaintiff refrained from taking a decree providing for her support, on the promise of defendant to pay her money from time to time. If she were content then to take such a promise instead of a decree of the Court,

ESTOPPEL. WAIVER.

N. Y. COURT OF APPEALS. In re application of Cooper, Mayor, &c.

Decided Oct. 23, 1883.

On an application to condemn lands for a public market appellant joined it by a petition that one F. be appointed one of the commissioners. Held, That he was thereby estopped from attacking the proceeding or the act under which it was brought. A party may waive a statutory and even a constitutional provision made for his benefit, and having once done so cannot afterwards ask for its protection.

See S. C., 16 W. Dig., 291.

Proceedings were taken under Chapter 191 of Laws of 1880, an act for the establishment of a public market in the city of New York and the acquisition of land for that purpose, by purchase, or failing in that, by commissioners of estimate and assessment to be appointed by the Supreme Court. A petition setting forth an inability to agree with the owners of the desired property upon the price to be paid for it and asking for the

appointment of commissioners was presented to the court, after service of a copy thereof on C., the | appellant here, one of the persons whose property was affected. C. did not oppose the application, but joined it by a petition that F. be appointed one of the commissioners. F. was duly appointed one of the commissioners, and they duly executed their office and among other lands appraised those of C., who being dissatisfied with the appraisal moved to set aside the order and all proceedings subsequent thereto, on the grounds: First, that the act of 1880 was unconstitutional because (1) the use for which the land is set apart is not a public use; (2) it does not provide for its acquisition by due process of law or for just compensation to its owners; (3) it is a local bill and grants to certain classes named therein exclusive privileges. Sec

ond, That an attempt was not made to acquire C.'s land by purchase. Third, That persons in whose names the proceedings were instituted do not bear certain specified relations to the city or some of its districts. The motion was denied.

James A. Deering, for applt.
D. J. Dean, for respt.

Held, No error; that C. is estopped by his conduct when the motion to appoint the commissioners was made. A party may waive a statutory and even a constitutional provision made for his benefit, and having once done so he cannot afterwards ask for its pro tection. 24 Wend., 337; 3 N. Y., 511; Cooley's Const. Lim., 181.

N. Y. COURT OF APPEALS.

Hazard et al., respts., v. Caswell et al., applts.

Decided Oct. 2, 1883.

A transfer by one partner to the other of his interest in the firm does not transfer the exclusive right to use a partnership trademark in the absence of an agreement to that effect. On the dissolution of a firm either partner may use the trademark unless he has in some way divested himself of the right to do so.

A compliance by the transferee with the act relating to the continued use of partnership names does not affect or enlarge his rights as against his former partner.

This action was brought to restrain defendants from using a trademark and to recover damages for the use of the same. It appeared that plaintiff and defendant C. were formerly in partnership and had one store in Newport and two in New York. They owned a trademark which was used on cologne prepared at one of the stores in New York and furnished to the others. When the term of the partnership expired C. retired from the firm. He transferred to plaintiff all his right, title and interest in the building in Newport, where their store was, and in the stock in trade and property there, excepting book accounts, also his interest in the labels on hand and the bottles in which the cologne was put and the moulds and stamps for mak

ing them. Nothing was said about the trademark in these transfers. The principal assets in the New York stores were divided. The business was continued by plaintiffs at the three stores under the old firm name. C. formed a new partnership which manufactured and sold the same cologne in similar bottles with the same label, except the name and place of business of the new firm was substituted for that of the old.

Samuel Hand, for applts. Henry H. Anderson, for respts. Held, That the transfer by C. of his interest in the Newport business did not transfer the exclusive right to use the trademark; that, even if plaintiffs were the sole successors to the old firm and its business with the right to transact business under the old firm name, this, in the absence of an agreement that plaintiffs should have the exclusive right to use the trademark, did not give them such right.

A trademark of a firm is an asset of the firm which may be sold. on a dissolution the same as any other asset, and upon a dissolution of the firm either partner may continue to use the trademark unless he has in some way divested himself of the right to do so.

It appeared that the label used by plaintiffs after the dissolution stated that the cologne was manufactured by the old firm.

Held, That as this assertion was untrue plaintiffs could not invoke the aid of a court of equity.

Also held, That a compliance with the provisions of Chapter 400 of the Laws of 1854, authorizing

in certain cases the continued use of a copartnership name after dissolution did not affect or enlarge the rights of the plaintiffs as against C.

Judgment of General Term, affirming judgment for plaintiffs, reversed and new trial granted.

Opinion by Danforth, J. All concur, except Ruger, Ch. J., dissenting, Rapallo, J., not voting and Andrews, J., absent.

ATTORNEYS.

N. Y. COURT OF APPEALS.

Tenney, respt.. v. Bergen, applt.

Decided Oct. 23, 1883.

Plaintiff was employed by defendant to oppose probate of a will, for which he was to receive what she should choose to pay. He filed objections, which were afterwards withdrawn with her consent and a decree entered. Thereafter he was employed to procure a revocation of the probate, bnt withdrew because a person objectionable to him had been introduced as counsel into the case by defendant without his knowledge or consent. In an action for his services, Held, That the latter proceeding was technically a different proceeding from the first, and that defendant by the employment of new counsel without plaintiff's knowledge or consent furnished reasonable cause for his withdrawal from the

case.