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well below, and we discover no error July 29th, 1870, an article headed “

which ought to be reversed.

Judgment affirmed.

JUDGMENT.

SUPREME COURT OF PENNSYLVANIA.
McKinney v. Fritz.

Decided October 25, 1875.

A court has the power to vacate the entry of satisfaction of a judgment, for that power is necessary to prevent injustice. Error to Court of Common Pleas of No. 1 Alleghany county.

Сар

tain Samuels missing. "Has the commander of the Dauntless committed suicide?" which then went on to say that at about ten o'clock of the previous night he, Captain Samuels, crossed the river with a number of friends, and that the entire party were very boisterous; singing, shouting, and yelling, and that they had been visiting a number of drinking saloons. That at about two o'clock in the morning a police officer observed the captain lying prone upon the ground with a number of friends standing around, but that the officer did not arrest the captain, perhaps from the fact that a number of well

Undoubtedly the Court of Common Pleas has power to inquire into the entry of satisfaction upon its record, and if the known politicians were of the party. facts show that it was improperly done, His friends are seeking anxiously for or without authority, to order the entry tidings of him, fearing that he may have to be vacated. This is but the exercise committed suicide through despondency of a power necessary to prevent injustice. because of the defeat of the Dauntless." The presumption is, the court exercised the power rightfully and on good cause shown. The facts are not before us, and therefore cannot be reviewed. We perceive no error in the record, and the judgment is therefore affirmed.

LIBEL.

The information on which this article was founded came to defendants as an item of news for the N. Y. News Association, and was published in the belief that it was true. Defendants offered to prove that they published on the following day a retraction, but this was objected to and excluded as not having been pleaded in the answer. Defendant further offer

N. Y. SUPREME COURT-GENL, TERM. ed to prove that plaintiff had stated that

FIRST DEPT.

he had sustained no damage from the publication, and that he was quite ready to

Samuels, respt. v. The Evening Mail withdraw the suit, and would withdraw Association, applt.

Decided December 6th. 1875.

It is competent in libel to show in mitiga-
tion of damages that a retraction has
been published.

It is competent to show what the plaintiff
said as to the damage done.
It is doubtful whether it is proper to
instruct the jury, that the injury to the
plaintiff's feeling, is a specific element
of damage.

Appeal from judgment entered on a verdict and from an order denying new trial on the minutes.

Complaint, Libel. Answer. Denial of malicious intent and mitigation.

it were it not that his lawyers had it in charge, and were to have what they could get out of it; but this was also excluded.

The Judge charged the jury that they were only to estimate the amount of damage suffered by plaintiff, and that to whatever amount "you find he has been injured either in character or feelings," that he is entitled to recover. Jury rendered a verdict for $2,500. Motion made for new trial on the minutes and denied.

On appeal.

Held, That defendant had a right to show in mitigation of damages any facts The

The defendant published in its issue of tending to show absence of malice.

retraction was therefore competent for city for the improvement made upon the purpose of showing that defendant it, and the contractor exercised an indewas not actuated by that intent to injure pendent employment. which the law will infer from the mere Judgment affirmed. act of publishing the libel.

What plaintiff had said as to the damages and his willingness to withdraw the suit, was competent to go to the jury as an expression of his own estimate of the amount of injury done him. We think it doubtful whether it was proper to give

NEW YORK CITY AND COUNTY.
N. Y. COURT OF APPEALS.
Seaver, applt. v. The Mayor, etc. of
New York, respt.
Decided November 23, 1875.

to the jury as a specific element of dam-The Laws of 1871, chap. 5, cures a defect

age the injury to plaintiff's feelings.

Judgment reversed, new trial ordered. Opinion by Davis, P. J., Brudy and Daniels, J. J., concurring in the result.

NEGLIGENCE.

SUPREME COURT OF PENNSYLVANIA.
Reed v. City of Alleghany.

When the contractor exercises an inde-
pendent employment, his employer is
not liable for an injury resulting from
his, the contractor's, negligence.

Error to the Court of Common Pleas No. 2, of Alleghany county.

Per Curiam.

in a contract for public improvements, arising out of a failure to advertise a contract, and to let it to the lowest bidder.

This action was brought to recover a balance due on a contract between plaintiff and the Commissioners of Public Works for regulating, grading and setting curb and gutter stones in Tenth avenue, from Manhattan street to 155th street, and flagging the sidewalks thereof. The contract was let by the Commissioner who assumed to act under chap. 383 of the Laws of 1870, directing "the Commissioners of Public Works to immediately contract for the regulating and grading of Tenth avenue, from Manhattan In Allen v. Willard, 7 P. F. Smith, street to 155th street." The work was 347, it is said that the principle to be ex- completed in accordance with the contracted from the cases is, that a person, tract, and a part of it paid for. It was natural or artificial, is not liable for the admitted or the trial that the contract acts or negligence of another unless the was not founded upon a sealed proposal relation of master and servant, or princi- or competitive bidding, but was let pal and agent, exists between them, and without previous advertisement or notice. that when an injury is done by a person At the conclusion of plaintiff's evidence exercising an independent employment, the complaint was dismissed on two the party employing him is not responsi-grounds: first, that the Commissioner ble to the person injured. This doctrine of Public Works was only authorized to has regard to cases where the purpose of contract for regulating and grading the the contract is entirely lawful, and where avenue, and second, that the power the owner of the property upon which conferred, was subject to the condition the power is to be executed can lawfully imposed by ser. 38 of the Charter of 1857 commit its performance to others. See and by chap. 308, Laws of 1861, which also Painter v. Pittsburgh, 10 Wright, requires that all contracts entered into 213. These principles rule this case. by, or in behalf of the city, or by the The trespass of the contractor here can-head of any department, shall be upon not be visited upon the city. The street sealed proposals, and let to the lowest was under the power and control of the bidder after due advertisement.

Upon a certiorari the court will, in addition to inquiring into the question of jurisdiction, examine the competency of the proof, and whether any rule of law affecting the rights of the parties has been violated.

An admission by the relator that he was a police officer, gave the Police Board jurisdiction to try an alleged offence against the discipline of the Board, and the refusal of the Board to allow him to withdraw the admission was a matter of practice and denial of the proceedings, and not reviewable here.

Held, 1. That it appearing that the contract was entered into in good faith, although that part which provided for setting curb and gutter stones, and for flagging the side-walks was not authorized by the Act of 1870, and conceding that the contract to give it validity in its inception should have been let by advertisement, yet that it was recognized and ratified by Chap. 5, Laws of 1871, which provides that the board of assessors shall assess upon the property intended to be benefited, the expenses which have been or shall be incurred for regulating, grading and setting curb and gutter stones, and flagging the side walks On the 4th day of February, 1875, a in 8th Avenue from 59th to 122d Street, charge had been lodged against the relaand in 10th Avenue from Manhattan tor charging him with neglect of duty. St. to 155th St. This cured the ir-This charge was accompanied with specregularity and rendered the contracts ifications stating the particular offence,

valid.

2. That the power of the legislature to ratify this contract results from its power to originally authorize it, and as the legislature could have authorized it without previous advertisement or competitive bidding it may affirm the contract, although originally made without authority of law. 56 N. Y. 261; 19 id. 218; 21 Wis, 217.

Certiorari to review proceedings and judgment of removal of relator from the office of Sergeant of Police.

which if true was just ground for removal. On the 5th day of February, 1875, formal notice of the charge with a copy of the same and of the specifications, were served upon the relator personally, whereby he was notified and required to answer the charge in accordance with, and the manner required by the rules and regulations for the government of the police force, and that his trial would take Also held, that although the Act of place at a meeting of the Board to be 1871 does not contain any express words held at the office No. 300 Mullberry of ratification of the contract, that the Street in the City of New York on the intent of the legislature is to be collected 10th day of February, 1875. The relafrom the language of the statute, applied tor admitted in writing due personal serto the subject matter and in view of pub-vice of all these papers; and he also, afterlic and notorious facts existing when the ward signed a separate paper endorsed on said notice, charges and specifications, in

act was passed.

Judgment of General Term reversed these words; "I hereby admit the withand new trial granted. in charges as specified, and waived trial thereon."

Opinion by Andrews, J.

On the 8th day of February following, NEW YORK CITY AND COUNTY-relator made a statement addressed to

POLICE COMMISSIONERS.

N. Y. SUPREME COURT-GENL. TERM,
FIRST DEPT.

The People ex rel, Miller v. The Board
of Police Commissioners of the City
of New York.
Decided December 6, 1875.

the Board, and verified by his oath and accompanied by the affidavits of four other persons, which substantially denied. the charge and specifications. On the 10th of February the Board met for the trial of the relator at the time and place designated in the notice served upon him.

Court.

The relator was called and failed to ap- proceedings and is not reviewable in this pear, and thereon the board as stated in their return, proceeded to hear in the

Judgment of the commissioners affirm

absence of the relator, the proof and al-ed, but without costs.

legations in support of said charges, to Opinion by Davis, P. J.; Daniels, J., wit the herein before mentioned admis

sion by the relator of said charges. On the 12th of February, 1875, the relator presented his petition asking leave to withdraw his admission and for trial of the charges, and at a meeting of the Board on the 16th of February, the petition of February 2nd was denied and the Board proceeded to pronounce formal conviction and judgment of removal. No other proof was produced against the relator except his written admission of the charges aforesaid.

concurring.

Lawrence, J., dissenting.

PATENTS.

U. S. CIRCUIT COURT-E. D. of

PENNSYLVANIA.
In Equity.

Consolidated Fruit Jar Co., v. Dorflinger et al.

Decided October 4, 1875.

A trade-mark representing that the article was protected by a patent, when it was not so protected, is invalid.

Abstract of the opinion of Cadwalader,J. The complainants did use their reputed right under Mason who was the patentee of certain alleged improvements in fruit jars.

Held, That it is now the law in this state, that upon a writ of certiorari, the court may inquire into more than the mere question of the jurisdiction over the parties and subject matter. It is the duty of the court in addition, to examine the evidence and determine whether there was any competent proof of the facts. There has been a judicial decision necessary to authorize the adjudication, against the validity of the patent, and and whether in making it, any rule of they do now assert its validity. But law affecting the rights of the parties they claim a trade-mark which is not has been violated? That unquestionably sufficiently distinguishable from a claim of the Board of Police Commissioners had exclusive right in the patented privilege. jurisdiction of the subject matter and In other words the trade-mark is eiththe person of the relator. The ad-er deceptively obscure, or purports to be mission of the relator who was a police for the patent, or to include it. These officer of New York City, was competent remarks apply whether the trade-mark evidence for the Commissioners to act is claimed in the words Mason's patent, upon. The subsequent verified denial and affidavits accompanying it, were not competent evidence of the truth of the facts stated in them. It was the relator's duty to have appeared on the trial, which If there had not been a patent, a dif he had ample opportunity to do, and to ferent import might perhaps be attachaproduce his witnesses for examination and ble to the second and third of the form cross-examination in due form; but not of words quoted. But when the question appearing he was in default, and sufficient is considered with reference to the preevidence was given by his admission, to existence of a patent to Mason, these convict him on such default. The refusal expressions are understood as applying to grant the relator's petition to have his to it, or as including the subject of it. admission withdrawn, was a matter of The patentee of an alleged invention practice in the order and detail of the is bound to disclose fully the secret, and

November 30, 1858", or in the words "Mason's improved" and the words Ma son's Jar of 1858, or in any substantially similar words.

he is understood as dedicating the sup- v. Sykes could not be disregarded, and posed invention to the public, subject to the supposed exclusive privilege granted him for the limited period.

If the privilege is invalid the dedication is immediate and absolute. It has therefore been contended that the rights of the public ought to be protected against any subsequent assertion by the patentee of an independent right under the name of a "trade-mark."

there was great hesitation in holding that a trade-mark representing an article as patented, when in fact it was not patented, was invalid in equity. But such doubts or hesitations were removed in England by the case of the Leather Cloth Co., v. The American Leather Cloth Co., in the House of Lords in 1865, (11 H. L. 523,) affirming a decree made by Lord Chancellor Westbury in 1863; (4 Der. J. & S.. 137.)

This objection to the complainants' alleged rights would prevail if it covered In this case Lord Kingsdown said, the whole question. But it does not. "If a trade-mark represents an article The answer to this objection is that a as protected by a patent when in fact it is tradesman who has an individual patent, not protected, it seems to me such a statemay nevertheless rightfully use the sub-ment, prima facie, amounts to a misrepject of the patent himself, and that he resentation of an important fact, which ought to be protected against injury by would disentitle the owner of the tradeothers who falsely impose their goods on mark to relief in equity against any one the public as his own. Upon this view who pirated it" of the subject the case of Sykes v. Sykes, (3 B. & C., 541; 5 D. & R.. 252) was decided in 1824. It was apparently in favor of the complainants here. It was partly considered on a motion for a new trial, a rule to show cause being refused.

Another objection however, to the complainant's bill does admit in reason of the same answer. This objection is that no title can successfully be asserted in a trade-mark which is of a tendency to mislead and deceive the public.

Lord Landsdown here succinctly restated the opinion of Lord Westbury in the Court of Chancery, and Lord Westbury adhered to it in the Court of appeal. Lord Westbury in the Court of Chancery seemed to have had American decisions in view. His opinion appears to have been followed in the Patent office. of the United States.

An exception to this rule of decision had been previously, and has been since recognized in the case of an article sued, as patent leather or patent thread. Where designations of this kind is in common use, though no one supposes that it is thereby intended to carry the impression that the subject is protected by any patent.

This objection may avail a defendant notwithstanding what would other wise be imputable to him as misconduct. The doctrine is that the complainant must come into court with clean hands. This doctrine if applicable alike in law, was overlooked in the case of Sykes v. Sykes. The direct application of the objection appears when we consider the alleged trade-mark in question tends rationally to induce a belief that the subject of it is a securely patented invention of Mason; whereas it has been judicially injunction is refused. decided that he never had a valid patent for it as an invention.

These observations may be applicable to the alleged trade-mark in the words "The Mason Jar of 1872"

The complainant if so advised may renew his application as to this mark. · As to the other alleged trade-mark the

PRACTICE.

In cases prior to 1863, before English N. Y. SUPREME COURT-GENL. TERM.

Vice Chancellors, the authority of Sykes

FIRST DEPT.

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