witnesses, is limited to those matters which tend to contradict, discredit, vary, qualify or explain the testimony given by the witness, on direct examination. (Id.)

31. The plaintiffs and their predecessors, have, since 1863, published and offered for sale, as a system for teaching and learning penmanship, books containing the copies to be written, and also directions for learning, acquiring and practicing the said art, with such illustrations as are required to convey and explain the ideas sought to be inculcated. On the cover of each book was printed

Payson, Dunton & Scribner's National System of Penmanship," and the book has been called and known as the National System of Penmanship."

The defendants thereafter published a book substantially in the same form, so far as its general appearance, binding and color was concerned, having upon the cover the words "Independent National System of Penmanship," such words being printed in the same manner, and the letters being of the same size and form, and occupying the same position as they do upon the cover of the plaintiff's book. The directions, instructions and illustrations contained in the two books were, in many cases, literally, and in the remaining cases substantially the same.

On an appeal from an order restraining the defendants from publishing or selling the said book, or any other book representing or imitating those of the plaintiffs, and from using the words "National System of Penmanship," in connection therewith, held, that as to the printed instructions, the injunction could not be maintained, for the reason that, if the plaintiffs had copyrighted their book, the United States courts had exclusive jurisdiction of all actions for an infringement thereof, and that if they had not copyrighted it, they had lost their

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exclusive property in the said instructions and directions by publishing the same in a printed book and offering it for sale. (Potter agt. McPherson, 21 Hun, 559.)

32. That, so far as the injunction

restrained the defendants from using the words "National System of Penmanship" in connection with their work, it was proper and should be affirmed. (Id.)

33. That the injunction was properly issued if it appeared that persons, desiring to purchase the plaintiffs' publication, might well accept that of the defendants, supposing and believing it to be the plaintiffs', even though persons engaged in the trade of buying the books, with an intention to resell them, might not be misled by the resemblance, and though the difference could be readily detected by a comparison of one book with the other. (Id.)

34. The plaintiff having demurred to an answer interposed by the defendant, the latter, within the time allowed by law, amended it. The plaintiff then procured an order striking out, as sham, false and frivolous, the second defense set up in the amended answer, and demurred to the first, third and fourth defenses contained therein. Afterwards the defendant, without procuring leave from the court so to do, served a third answer, setting up in due form his discharge in bankruptcy, this being the same defense insufficiently pleaded in the third defense of the amended answer. The third answer was returned by the plaintiff, on the ground that it could not be served without the leave of the court.

Thereafter the demurrer was sustained, the defendant being allowed to amend the said first, third and fourth defenses, within twenty days, on payment of the costs. Within that time, the defendant paid the costs, and

served an answer, setting up simply his discharge in bankruptcy, such answer being the same one already served and returned by the plaintiff. The plaintiff returned this answer as unauthorized by the order sustaining the demurrer, and because it had already been served and returned; and thereafter entered a judgment in his favor, by default, as for want of an answer.

On a motion by the defendant to vacate the judgment and compel the plaintiff to accept the answer last served, held, that such answer was properly served, and that the plaintiff had no right to return it. (Decker agt. Kitchen, 21 Hun, 332.)

35. That the entering of the judgment by the plaintiff, after the service of the said answer, was not a mere irregularity, within the meaning of that term, as used in Rule 37, requiring the irregularity complained of to be specified in the notice of motion. (Id.)

36. Since the adoption of the Code of Civil Procedure the plaintiff can no longer treat an answer as a nullity and enter a judgment as upon a default; his only remedy in such a case is to apply to the court or a judge thereof, upon notice, as prescribed in section 537 of the said Code. (Id.)

In

37. In 1834, one Francis Child died, leaving a will, by which he devised certain land to his widow for life, with remainders to his three daughters, Jane Reed, Caroline Savage, and Mary Parsons. 1845, a decree was made in an action of partition brought by the widow, by which the lot, to recover which this action was brought, was set off in fee to Mrs. Parsons, who died in 1847, leaving an infant daughter, now Mrs. Allen, to whom the lot descended. Subsequently a bill of review was filed by Jane Reed, and a judgment procured setting

aside the decree of partition, and all the proceedings thereunder. While the bill of review was pending, and in pursuance of an order of the chancellor, made upon the application of the father of Mrs. Allen, then an infant, the lot in question was sold to the widow, who thereafter conveyed it, by a full warranty deed, to the defendant. Mrs. Allen alluded in her answer to the bill of review, to this application, praying that in case a new partition were ordered, the rights of the purchaser might not be disturbed, and that the lots originally set apart to her mother might, on a subsequent partition, be set apart to her.

In a second action for partition, to which Mrs. Allen and the defendant were parties, the former put in the usual answer of an infant, and the latter suffered a judgment to be taken by default, in pursuance of the advice of his counsel. By the decree therein, the lot was again set off to Mrs. Allen.

In an action brought by Mrs. Allen to recover the lot so purchased by the defendant, the latter set up the foregoing facts, and prayed that she be compelled to execute a confirmatory deed of the lot to him:

Held, that neither the judgment on the bill of review, nor that in the second action for partition estopped the plaintiff from setting up the equities existing in his favor, but that he might set them up in this action, and procure herein the affirmative relief to which he was entitled. (Esterbrook agt. Savage, 21 Hun, 145.)

38. Held, further, that Mrs. Allen was estopped from claiming the land by the recitals contained in the deed of her special guardian, referring to the petition upon which the order for a sale was made, it being alleged therein that she was the owner in fee of the lot to be sold. (Id.)

39. This action was brought upon a judgment recovered by the Rochester Bank against the defendant and others, and which the plaintiff claimed to own, by virtue of an assignment from the bank, and because he was the sole stockholder thereof at the time it ceased to do business. The judgment was recovered on a note made by and discounted for the defendant. The defenses set up in the answer herein were that the plaintiff never became the owner of, or paid value for the judgment; that, if any judgment existed, it belonged to one Clark, and that the plaintiff was not the real party in interest.

Upon the trial the defendant offered to prove by one Eldridge, one of the indorsers of the said note, and one of the judgment debtors, that he had paid the note to the president of the bank, the plaintiff, and requested him to bring the action against himself, the defendant, and another, in order that he might avail himself of the judgment to collect the amount thereof from the other parties. The testimony was rejected on the ground that it was immaterial, and tended to contradict a record, the witness having allowed a judgment by default to be recovered against him on the

note:

Held, that it was error to exclude the evidence.

That it did not tend to contradict the record, but only to show an independent agreement affecting the ownership of the judgment.

That the fact that the particular defense sought to be established was not set forth in the answer, was immaterial, as the evidence was not rejected on that ground. (Brown agt. Decker, 21 Hun, 199.)

40. That it was also admissible as tending to show that the bank held the judgment as a trustee for the benefit of Eldridge, and that it did not, therefore, pass to the plaintiff, under the assignment, as

part of the assets of the bank. (Id.)

41. About January 1, 1878, the defendant entered into an agreement with his brother-in-law, William A. Bushnell, to the effect that he should conduct certain stock speculations for Bushnell's benefit, collecting information of such a character as to justify the purchase of stocks, and giving his time and attention to the purchase and sale thereof; for these services he was to receive one-third of the net profits; the margin to carry the account being furnished by Bushnell. The defendant knew that Bushnell was a book-keeper in the employment of the plaintiff, and had no means outside of his salary. On April 23, 1879, the defendant, claiming that his share of the profits amounted to $6,818.48, received from Bushnell an order upon his broker for that sum, which was paid by the drawee.

On June eighth, Bushnell absconded, and it was then learned that he had stolen bonds from the plaintiff, and pledged them to secure his account with the broker, by whom some had been sold and others pledged. It appeared that the sum received by the defendant was in fact one-third of the profits actually made by him while conducting the account, and also that Bushnell had, without his knowledge, speculated on his own account, both before and after the times referred to. It was not shown that the defendant knew that Bushnell had stolen the bonds until after he had absconded.

The defendant having refused to account to the plaintiff for the amounts received by him, this action was brought to recover damages for the conversion of the bonds, and upon the trial thereof the court directed verdict for the plaintiff, for the entire amount lost by the abstraction of the bonds, on the theory that the defendant and Bushnell were copartners in the transaction,

а

and that the former was therefore liable for the acts of the latter:

Held, that this was error, and that the question as to whether or not a partnership existed between Bushnell and the defendant, should have been submitted to the jury. (Butler agt. Finck, 21 Hun, 210.)

42. Quære, as to whether, in any event, the defendant was liable for the amount actually received by him from Bushnell. (Id.)

43. On December 21, 1871, the plaintiff and the defendant entered into a written agreement, by which the latter was made the sole general agent for the sale of an encyclopedia, then being published by the plaintiff, upon the terms therein specified, the defendant agreeing that, after its completion, he would take on an average at least one thousand copies of the entire work annually until the expiration of this agreement." Subsequently, a verbal agreement was made, by which the defendant agreed to print the work, the plaintiff simply furnishing the manuscript on plates, ready for the press.

44

This action was brought by the plaintiff to compel the defendant to account for the books printed and sold by him under the contract, the plaintiff alleging that the number of the books so printed and sold was unknown to him, and also to compel him to pay the agreed price for at least one thousand copies a year, though the number actually sold might have been less than that number. The court directed an interlocutory judgment for an accounting to be entered, but refused to allow the plaintiff to recover in this action for a failure of the defendant to take the number of copies specified in the agreement:

Held, that this was error, that the plaintiff was entitled, as an incident to the accounting, to charge the defendant in this action with the number of copies

he had agreed to take. (Bonn agt. Steiger, 21 Hun, 219.)

44. When an action is tried before the court without a jury, upon an admission that the allegations of the complaint are true, and no evidence is given by either party, the findings of the court should not deviate from the allegations of the complaint, either affirmatively or negatively. (Id.)

45. The plaintiff, claiming to be the owner of a lot in the city of Syracuse, brought this action to have a deed thereof, executed by the county treasurer, upon the sale of the lot for unpaid taxes, set aside, as a cloud upon her title, upon the ground that no notice to redeem had been given to the owner or occupant thereof:

Held, That, if section 12 of chapter 858 of 1867 (the act under which the sale was made) did not make applicable to proceedings under it, the provisions of the general laws of the State relating to the giving of a notice to redeem after a sale for taxes (1855, ch. 427, secs. 68-75), then no such notice was required, as the act of 1867 contained no provision requiring such notice to be given, and the defendant's deed was valid.

That if the provisions of the general laws on that subject did apply, then the plaintiff's right to redeem was still perfect, and as the defendant's deed would not entitle them to recover possession of the land without the production of the treasurer's certificate, showing a failure on the part of the owner or occupant to redeem after due notice had been given, the plaintiff had no occasion to come into a court of equity for relief.

That, in either event, this action could not be maintained. (Stewart agt. Crysler, 21 Hun, 285.)

46. Section 10 of chapter 838 of 1867 renders the deed conclusive evidence of the regularity of the sale, and prevents its validity

from being attacked by proof of a misdescription of the land in the notice of sale.

Under section 34 of chapter 427 of 1855 the validity of a sale is not affected by any error in the description of the land in the printed notice of sale.

Quare, as to the constitutionality of these provisions. (Id.)

47. This action was brought by the people to restrain the defendant, a street railroad company, from laying its tracks in a portion of one of the streets in the city of New York. It was brought with the consent of the attorney-general, and was prosecuted by the attorneys for a rival railroad company, which had already brought a similar action against the defendant herein, in which it had been defeated, and a judgment rendered in favor of the defendant, which had been affirmed on appeal to the general term.

The complaint herein, having been dismissed upon the trial, the acting attorneys, without any express authority appealed to the general term. Thereafter, the attorney-general, upon the application of the attorneys for the defendant, signed a stipulation that either party might enter an order discontinuing the appeal without costs; the attorney-general holding that the action involved no question of public interest, but was a mere contest between rival companies, which had, in effect, been already decided in the former action between them. Upon this stipulation an order discontinuing the appeal was entered. Subsequently, the successor to the attorney-general who signed the stipulation for the discontinuance of the appeal, consented that the said order should be vacated and the appeal prosecuted if the court thought it could be done. Upon this consent, the attorneys who had brought the action procured an order, on an ex parte application,

48. Upon the trial of an action brought in the marine court of the city of New York by one Talcott, against one Salke, Talcott recovered a judgment, which was, upon appeal to the general term of the marine court, reversed, and a new trial ordered. Talcott then appealed to the general term of the court of common pleas, without giving the stipulation, required by chapter 545 of 1874, to the effect that judgment abso. lute might be rendered against him in the event of the affirmance of the order directing a new trial. The common pleas affirmed the order of the general term of the marine court, directing a new trial. Salke thereupon, claiming that the common pleas should have ordered a judgment absolute in his favor, procured a writ of prohibition, restraining Talcott and the marine court from taking any further proceedings in the action.

Upon an appeal from the order granting the said writ, held, that in the absence of the stipulation required by the act of 1874, the court of common pleas could not have ordered a judgment absolute in favor of Salke. (People ex rel. Salke agt. Talcott, 21 Hun, 591.)

49. That if the appeal could be taken without any stipulation having been given, the common pleas in considering the case were, by subdivision 2 of section 43 of chapter 479 of 1875, vested with a discre