Weston v. Ketcham — 39 N.Y. Super. Ct. 54

Majority

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GEORGE N. WESTON and others, Plaintiffs and Respondents, v. FREDERICK O. KETCHAM AND OTHERS, DEFENDANTS AND APPELLANTS.

Headnote

“PEPPER’S SIGNAL OIL."

I. TRUSTEE. IMPLIED TRUST.

1. Partners. When one partner, during the partnership, negotiates respecting, and obtains the exclusive use of a right in which the firm was interested, he will be declared to hold such use in trust for the firm.

a. Trade-mark. Principle applied to it.

1. When a firm under a contract with the owner has the right to the exclusive use of a trade-mark, and during the partnership one of the firm enters into an agreement with the owner, whereby the previous contract is cancelled and a new one made, giving to such member the exclusive use of the trade-mark for a certain number of years, on certain conditions, and at the end of that term the conditions having been performed, the 'sole and exclusive right an'd title to the trade-mark,

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that such partner took and held the contract, and all the rights and interests given thereby, as trustee for the firm.

II. RATIFICATION BY ACQUIESCENCE.

1. Forced acquiescence will not operate as.

1. In the trade-mark case above put the other partners after knowledge of the contract made by their copartner, expressed their disapprobation, but did not immediately resort to their legal remedy, and notwithstanding the act of their copartner still continued the firm, and in its business used the trade-mark, and manufactured under it as before, and paid to the owners out of the firm’s funds the sums stipulated to be paid, yet it appearing that the copartner who procured the contract for his own benefit alone knew the secret of the manufacture,

Held,

A forced acquiescence, which would not sustain a finding of ratification.

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1. If they had moved in the matter adversely, they would in asserting their remedy, not have possessed the knowledge by the use of which the capital employed in the manufacture (all of which was contributed by them), might be made remunerative.

HI. TRADE-MARK.

1. Restraining use of, what not cause fob.

1. Although defendant does not know the secret of the manufacture, and is selling under the trade-mark an article different from that represented by it, yet (whatever may be the effect of these elements in other cases) no cause of action arises therefrom against him in favor of one who has no mot'e right to the trade-ma/rk than he has.

IV. TRIAL BY COURT.

1. Mode of reviewing decision.

1. Only by appeal from the judgment entered on such decision, or under section 368 by motion at general term for a new trial.

1. Therefore a motion on a case, or exceptions, for a new trial, will not be entertained at special term.

Per Freedman, J., concurred in by Curtis, J.

Before Freedman and Curtis, JJ.

Decided February 1, 1875.

Appeal by defendants from a judgment, and from an order at special term, denying a motion for a new trial.

The action was commenced in March, 1874, for a perpetual injunction to restrain the defendants from using a trade-mark, to wit, “Captain S. Pepper’s Extra Signal Oil,” and for damages for their alleged previous wrongful use of the same.

The findings of the judge were as follows :

1. That Simeon Pepper in his life time with the aid of his wife Abbie A. Pepper, and of George N. Weston, one of the plaintiffs, experimented for the purpose, and succeeded, in compounding and manufacturing an illuminating oil, valuable as an article of merchandise,

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-and in the course of his business as a manufacturer of and dealer in that and other oils at the city of New York, sold the same under the name and designation of “Pepper’s Signal Oil,” “Captain Pepper’s Extra Signal Oil,” and “Captain S. Pepper’s Extra Signal Oil,” from the time he produced the same, to the beginning of the year 1870.

II. That about the last mentioned time, said Pepper formed a business connection with the defendant Ketcham, whereby he, Pepper, was to manufacture the said oil, and the said Ketcham was to sell the same, and the profits were to be divided equally between them, and that agreement was in force and operation, the oil being so manufactured by Pepper and sold by Ketcham as “Pepper’s Extra Signal Oil,” until the death of Pepper, in September, 1870, up to which time the plaintiff Weston remained in Pepper’s employ, and was engaged with him in manufacturing said oil.

III. That on or about September 1, 1870, the plaintiff' Weston and the defendant Ketcham, entered into a written agreement for a co-partnership between them, under the firm name of P. O. Ketcham and Company, to deal in oils, at the city of New York, in which agreement it was provided that Ketcham should furnish the capital, and Weston should devote his time, knowledge and skill, to the manufacture of “Pepper’s Signal Oil,” and other oils, the terms of which co-partnership, were equal as to division of profits and liability for losses, and at the same time they, as such co-partners, entered into an agreement with Abbie A.. Pepper, afore-mentioned, the widow of Captain S. Pepper, by which they agreed to pay to her one-tenth part of the net profits of their whole business, in consideration that she should and would give to them as Jong as said agreement lasted, the exclusive use of all her right, title, and interest, in and to the use of then-rrm o-' her husband as a trade-mark upon the said.

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signal oil, so to be manufactured by Weston in their said business, and not to impart to any one the secret of said manufacture.

And the said co-partnership thus formed, and tne continuation thereof hereinafter mentioned, then used the following device as a trade-mark, under which they vended the said oil so manufactured, except that the word “Sole” was invariably printed before the word “manufacturers,” to wit:

IV. That on or about July 1, 1871, the plaintiff Piske became a member of the said co-partnership firm of F. O. Ketcham & Co., being admitted thereto upon equal terms, as to profits and losses, with the other two co-partners, but the said agreement with the said Abbie A. Pepper, was not then changed, nor were the duties of said Weston in respect to his manufacture of said signal oil.

V. That on or about January 1, 1872, the said agieement between the co-partnership firm of F. O. Ketcham & Company, and said Abbie A. Pepper, afore-mentioned was cancelled, and a new agreement in

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writing was entered into by and between her and the plaintiff Weston, as parties thereto, in and by which, for the consideration of one hundred and fifty dollars, to be paid in equal monthly instalments during a period of five years thence next ensuing, she, the said Abbie A. Pepper, agreed to allow to said Weston, or to any firm of which he then was or might become a member, the exclusive use of the name of Captain Simeon Pepper, in the manufacture of signal oil, as a trademark, and that at the end of said five years, provided said Weston should faithfully keep said agreement, she, said Abbie A. Pepper, would render and yield up to him the said trade-mark for his own use, benefit, and behoof forever.

VI. That, said agreement directly upon its execution came to the knowledge of the said Fiske, and said Ketcham, and they each severally ratified the same, and thenceforth all the time of the subsequent continuance of the said co-partnership .of F. O. Ketcham & Company, composed of said Frederick O. Ketcham, George N". Weston, and Thomas P. Fiske, as co-partners, they paid the said monthly instalments, and had and used in their business said trade-mark, as hereinbefore set forth. ,

VII. That said co-partnership, last aforesaid, continued to February 20, 1874, when by written articles of agreement the same was dissolved, the said Weston & Fiske, parties on the one part, and the said Ketcham party on the other, specially retaining and reserving any right or rights either party had in or to said trademark and its use.

VIII. That on or about the said February 20, 1874, the plaintiffs entered into a co-partnership under the firm name of Weston & Fiske, as manufacturers and dealers in oils, at the city of New York, and specially as manufacturers and vendors of said signal oil, and have manufactured and sold the same and

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thence, hitherto, used the said device or trade-mark as follows, to wit:

IX. That, on or about the same day, the defendants entered into a co-partnership under the firm name and style of F. O. Ketcham & Company, as dealers in oil, and thereupon gave oat to the public and represented themselves as dealers in Capt. S. Pepper’s “Extra Signal Oil,” and held themselves forth as manufacturers and vendors of said oil.

X. That at and after the time of the death of said Captain Simeon Pepper, no person had any knowledge of the ingredients composing said signal oil, or the mode of compounding them, or the means by which the complete article was produced, except the said Oeorge Ñ. Weston and the said Abbie A. Pepper, and they had not, nor had either of them, imparted said knowledge at any time previous to the commencement of this action.

XI. That said defendants have not, nor did they or either of them ever have knowledge of the several ingredients, proportions, and processes necessary to be known to manufacture the genuine article, heretofore and now known as “Capt. S. Pepper’s Extra Signal Oil.”

XII. That since the said February 20, 1874, to the time of the trial, the defendants have been manafac

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turing and vending an oil which they have falsely called, by the name “ Capt. S. Pepper’s Extra Signal Oil,” and have falsely represented such oil, to dealers therein and buyers thereof and the public, as the genuine manufacture heretofore known by and sold under the said name and device or trade-mark, and that they have sold the same under and with the label in manner following to wit:

XIII. That such wrongful actings and doings on the part of the defendants caused loss and damage to the plaintiffs.

And I do find as my conclusions of law.:

I. That the defendant Ketcham, has not and never has had any exclusive right to the use of said trademark, and that the defendants have no right or title in or to the said trade-mark, or device, or to the use thereof or to the name of said Simeon Pepper, or to any part thereof.

II. That the plaintiffs are entitled to the exclusive use of the device and trade-mark as now and heretofore used by them in and about their business of man

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ufacturing and selling the oil, commonly heretofore and now known and called “Capt. S. Pepper’s Extra Signal Oil,” or “ Pepper’s Signal Oil,” and the exclusive use of the name “Captain S. Pepper,” on any manufacture of oil, and to all parts of said name.

III. That the plaintiffs are entitled to judgment enjoining and restraining the defendants and each of them as prayed for in the complaint, and in accordance with these findings and conclusions.

IY. That the defendants shall upon oath, deliver up, under the direction of a referee, to be appointed by the court, all labels, devices and marks and materials, for making or printing such labels and devices, now in the possession or under the control of the' •defendants, bearing the name of Capt. S. Pepper, or any part of said name, as designating any manufacture or pretended manufacture of oil or other illuminating substance.

y. That the plaintiffs by reason of the wrongful acts of the defendants have sustained damages which should be ascertained by a referee to be appointed by the court, to the end that upon the coming in of his report, final judgment shall be entered in this action for the relief hereby adjudged to the plaintiffs, as well .as for such damages, if any, reported by said referee, together with the costs of this action, and costs of any reference pursuant to these findings and conclusions.

yi. That the plaintiffs are entitled to, and I do order judgment accordingly, dated June 16, 1874.

The following opinion was delivered at special term:

The action is brought against the defendants for violating the plaintiffs’ trade-mark, consisting of a circular label or stamp, marked and letters “Captain S. Pepper’s Extra Signal Oil.” An arrangement had been made by which the parties, plaintiffs and defendants, had jointly as copartners, manufac

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tured this oil and the factory was known, and published, “F. O. Ketcham & Co., Manufacturers.” The' defendants claimed not only to have knowledge of the secret process of making the oil, but also that they, in their arrangement with the plaintiffs and the original inventors for carrying on the business, had made a contract by which they had the right to use the trademark, and were in fact owners of it and the secret.

After the dissolution the defendants continued to make what they called “Captain Pepper’s Extra Signal Oil,” and to use the trade-mark.

The plaintiffs brought their suit to restrain defendants, by injunction, claiming that they were the proprietors of the trade-mark, and were alone possessed of the secret process of manufacturing the oil, and alleging that the defendants were making a spurious article and selling it in the market for the genuine oil.

The co-partnership arrangement made by the parties, was for the purpose of carrying on the business of making and selling this oil.

•The compounding the ingredients was by arrangement exclusively intrusted to the plaintiffs as their special business in the copartnership, while the selling of the oil, and other labor necessary to create a market, and the taking all necessary steps in preparing it as merchandise merely, was the defendants’ department.

I have no difficulty in finding that the issues in the pleadings have been clearly made out by the evidence in favor of the plaintiffs, and that they are entitled to the judgment asked for in the complaint.

Frank Warner Angel, attorney, and of counsel for appellants, among other things urged;—I. Weston took the trade-mark as trustee of the firm (Mitchell v. Read, 61 Barb. 310 ; Colly, on Part. § 179; Smith Merc. L. 54; Featherstonhaugh v. Fenwich, 17 Vt.

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298 ; Pawcett v. Whitehouse, 1 Russ. & Myl. 132; Russel v. Austwich, 1 Linn. 52; Colly, on Part. § 182; 1 Sto. Eq. Jur. §§ 468, 623; Kelly v. Greenleaf, 3 Story, 93 ; Keech v. Sanford, 1 Lead. Cas. Eq. 92).

II. The doctrine of Vigilantibus et non dormientibus equitas subnenit, does not apply. It only applies where a party being apprised of the act about to be done, slumbers on his rights; for the betrayal of confidence reposed, the skillful lulling to rest of the intended victim, the adroit closing of every avenue through which apprehension might enter, whether this be done by words or by “expressive silence” are the eararks of successful fraud the world over; and a court of equity, should it make such a perverse application of one of its fundamental maxims, would become the efficient ally of the vigilant wrongdoer, prove recreant to its past history and the principles on which its very jurisdiction rests.

III. Having shown that this agreement with Mrs. Pepper was taken by Weston, as trustee of the firm, the next question is, what becomes of the trademark on the dissolution of the firm? On dissolution of a partnership, each of the partners has the right, in the absence of a stipulation to the contrary, to use the trademark (Banks v. Gibson, 34 Beav. 566; Smith v. Everett, 29 Id. 446; Johnson v. Hillsley, 2 D. J. & S. 446; Comstock v. Moore, 18 How. Pr. 421 ).

A. J. Perry, attorney and of counsel for respondent, urged ;—I. The exclusive right to the use of the trade-mark described in the complaint is shown by the evidence of the plaintiffs. Vide opinion of the court; finding of fact; conclusions of law.

II. Ketcham recognized and acquiesced in the knowledge of the secret and proprietary interest of Weston and Mrs. Pepper to the trade- mark.

To sustain this action, the plaintiff must establish an exclusive right to use the alleged trademark in question. The plaintiffs claim that through one of them, George N. Weston, they possess such exclusive right.

The plaintiff Weston, testified at the trial, that about September 1, 1870, he made ail arrangement with Mrs. Pepper that she was to have ten per cent, of the gross profits of the manufacture of this oil, by the firm, consisting of the defendant, Ketcham., and himself, for the use of her husband’s name; that he was to make it, and the firm have the benefit of it. Subsequently about January 1, 1872, and after the plaintiff Piske became a mem ber of the firm, and the firm having paid the ten per cent, to Mrs. Pepper, a new agreement was made between the plaintiff Weston and Mrs. Pepper, by which Mrs. Pepper allowed the plaintiff Weston, or any firm of which he may be, or become a member, as he may desire, the exclusive use of the trade-mark, on paying to her for five years one hundred and fifty dollars per annum, and on punctual payment at the end of five years, she covenanted to render and yield up the trade-mark for his own use forever.

The evidence of the plaintiff Piske in respect to this new agreement, was as follows:

“ Q. What conversation was had between yourself, Ketcham and Weston, in regard to the agreement which should be made for the firm’s benefit, with Mrs. Pepper %

“A. We were anxious to have an agreement made, and wanted the best one possible.

“ Q. What instructions, if any, did you give to Mr. Weston before he went to Mrs. Pepper for this purpose ?

“A. To make the best arrangement possible.

‘ ‘ Q. For the firm’s benefit ?

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“A. Yes, sir.

“ Q. Did he comply with your instructions ?

“ A. He did.”

The plaintiff Weston testified, “It was talked over between us beforehand, that I was to make the best arrangement with Mrs Pepper that I could.”

“ Q. He instructed you to do it ?

“ Q. Who instructed you ?

“A. F. O. Ketcham.

“Q. After it' was done, did he know what was •done ?

“A. He did.”

On his cross-examination he further testified, as follows:

“ Q. You went to her while a.member of the firm of F. O. Ketcham & Co., under the instruction from your partner to do the best you could %

“A. Yes, sir.”

The defendant Ketcham testified :

“ Q. Why was the change made from ten per cent, to the sum of one hundred and fifty dollars a year ? What conversation, if any, did you have with your co-partners before this agreement of one hundred and fifty dollars was entered into ?

“ A. Mr. Fiske suggested that we should have a different arrangement with Mrs. Pepper, and we talked the matter over between us, and came to a definite sum. Then Mrs. Pepper called on us several times at our office : had conversation with Mr. Fiske, Mr. Weston and myself, relative to the matter,—and came to a conclusion what she would do. She then left us and went home. We then talked the matter over between us, and agreed between us to give her so much money for her right, title and interest in the mark. Mrs. Pepper and me talked the matter over, and we had sev

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eral conversations about it. I don’t remember all the conversations.

“Q. You had several conversations with her 2

“A. Yes, sir.

“ Q. Where 2

“A. At the store.

“Q. About what time 2 before the agreement was made 2

“A. This conversation was held, I think, in the month of December, 1871.

' “ Q. Several conversations with her 2 What were those about 2

“A. About this name—this trade-mark — this name.

“Q. What did you want to know about it 2

“A. We wanted to change it from the ten per cent, and give her a certain sum of money, for so many years.

“Q. Was that the whole of it 2

“ Q. You wanted to give a certain sum of money, for so many years, at the expiration of which the trade-mark should belong to you 2 “A. No, sir-; to the firm.

“Q. You wanted to buy it for the firm 2

“ A. Yes, sir.

“ Q. That was your object in having these conversations with Mrs. Pepper 2

“A. Yes, sir.”

The question arises whether upon this evidence which is undisputed, the agreement of January 1, 1872, made between the plaintiff Weston and Mrs. Pepper, operated as a matter of law to vest the right to use this trade-mark in the firm, or in Weston indi- ■ vidually. It will be observed that the consideration for it was paid by the firm out of the moneys of the firm.

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If we look at the analogies of the law, as, for example, at the renewal of a lease by a partner in his own name which had been originally granted to the co-partnership, some light may be thrown upon the effect of the transaction, for this agreement with Mrs. Pepper for the use of the trade-mark for five years, and then conditionally to vest, is in the nature of a lease and the same controlling principles apply to it.

In Mitchell v. Read ( 61 Barb. 310 ), it was held, that where, before the expiration of a co-partnership, one partner, without the consent of his co-partner, obtained a new lease of the place of business of the firm in his own name, to commence before the partnership ends, such lease vested in the lessee as trustee for the firm. In Burrill v. Bull (3 San. Ch. 15), Sanford, V. C., thus speaks of an analogous occurrence :

“It was a transaction by which one of three joint owners of a lease, deputed by his associates to obtain its renewal for the common benefit, and availing him- . self of his part ownership and his connection with the property to obtain such renewal, procured it in his own name, Tmd attempted to shut out his associates from sharing in its advantages. It is, in short, an unmitigated fraud, against which courts of equity have ample jurisdiction to grant relief.”

Courts of equity have inexorably frowned upon the attempts of one partner to secure any individual advantage in transactions entrusted to him, affecting the rights or property of the co-partnership. He is held to the highest acconntability as an agent, and the agency is one that in every commercial community invokes the highest confidence and responsibility, and should be protected by every safeguard.

In the case under consideration, the plaintiff Weston went, at the request of his co- partners, to make a new arrangement as to what should be paid for the future use of the trade-mark, the right to use which

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the firm already possessed on payment of ten per cent, of the gross profits. It is undisputed that the firm up to its dissolution, January 30, 1874, paid from its funds the annual sum to be paid, under the agreement which he took in his own name. If the law is to be applied to this transaction upon the facts as they appear, that is applied to similar transactions by a partner in respect to taking the extension of the firm’s lease in his own name, it is quite certain that the plaintiff took nothing by the agreement, except as trustee for the firm.

But there are considerations urged by the plaintiff, which, it is claimed, should make this case an exception to the general rule. It is said, and so found by the referee, that this agreement, upon its execution, came to the knowledge of the other two partners, Fiske and Ketcham, and that they severally ratified the same.

Fiske, one of the partners, and now one of the plaintiffs, says he saw and read the paper soon after it was executed, and expressed his disapprobation, and then proceeds to testify:

“ When the paper was drawn up I thought, being a member of'the firm of F. O. Ketcham & Co., I should have an interest in that trade-mark as well as Weston, but Mrs. Pepper decliued to give it to any one but Weston, and we acquiesced in that, to pay her one hundred and fifty dollars a year.

“Q. What else did you say in stating your disapprobation ?

“ A. That is the substance of it.

“ Q. Did you say anything to Mr. Ketcham in. regard to your disapprobation of this contract?

“A. I did.

“ Q. Please state what that was ?

“A. General disapprobation.

“ Q. Why did you disapprove of it?

“ A. I thought it was not fair.”

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The plaintiff Weston testifies :

“Q. What remark if any did Mr. Ketcham make when you showed him that agreement ?

“A. I don’t remember whether he made any at thé time I showed it.

“Q. Did he make any afterwards ?

“A. I have heard him make a great many since.

“Q. In regard to this agreement?

“A. Tes, sir.

“ Q. What was the substance of the remark?

“A. He thought I ought to let him in and let him have an equal interest.”

On his cross-examination he testified :

“Q. Did you say anything to Messrs. Fiske and Ketcham as to your influence with Mrs. Pepper ?

“A. I probably have ; I don’t remember, though.

“ Q. Did you state to them that you thought, owing to your influence, you could make the best bargain in this matter ?

“ A. Probably I did ; I would not swear that I did.”

Albert Johnson, who occupied the same office with .the firm, testifies in respect to this agreement:

“ Q. Do you remember hearing it talked about by Mr. Ketcham and his co-partners Fiske and Weston ?

“A. I do.

“Q. State to the court what you recollect hearing him say on the subject of this agreement on Mr. Ketcham?

“A. The only thing I remember, and I can not give the words for that, Mr. Ketcham did not like it, and was angry because the paper was made out in the name of Greorge H. Weston and not in the name of the firm.

“ Q. What did he say in reference to that?

“A. I can not say what he said in regard to that. He did not like it.”

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The evidence is uncontradicted that the two other partners refused to approve or recognize this agreement made by Weston in his own name, as a proper discharge on his part of the duty confided to him by the firm.

It is to be presumed that the court in finding that they did ratify it, based that finding upon the fact that the firm continued to use the trade-mark and conduct the business of the manufacture of the oil the same as before, and did not resort to their legal remedy. This is more in the nature of acquiescence than ratification ; and again, such acquiescence was doubtless forced and not voluntary, for Weston alone knew the secret of making the oil, and if they had moved in the matter adversely to him, they would, in asserting their remedy, not have possessed the knowledge by the use of which the capital employed in the manufacture of the article, no part of which was contributed by Weston, might be made remunerative. It seems to be inequitable, under such circumstances, to decide that, because they refrained from attacking the transaction at once, they acquiesced in or ratified it, and, least of all, that there was a ratification of it in the sense of waiving any equitable rights that it gave the firm. This forced quiescence on the part of the other members of the firm can hardly be held sufficient to sustain tile finding of the court, that there was a ratification of this agreement.

It is urged by the respondent, and the court so finds, that Ketcham never knew the mode of manufacturing this oil. This is advanced as a reason why he should be restrained from using the trade-mark. The answer to this is obvious. He may become possessed of such knowledge, and even if he sells a different article from what he by the trade-mark represents it to be, • his responsibility is to those whom he deceives. His ignorance, or his selling another article, does not con

Concurrence

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fer on the plaintiffs any rights to restrain him from interfering with what does not belong to them any more than to him exclusively.

The plaintiff Weston bargained for this right at the request of the firm, and for the use of the firm, and the funds of the firm paid for the use of it and for the acquisition. It is left by the articles of dissolution an equitable asset of the firm. The plaintiffs by their own showing are not in a position to ask equitable relief, and they fail to establish any exclusive right that entitles them to an injunction.

In this aspect of the case, it becomes unnecessaiy to consider the questions raised by the exceptions taken on the accounting for damages, or the other exceptions raised in the case.

The judgment appealed from should be reversed with costs to appellants to abide the event of the suit, and a new trial granted, and the order appealed from should be affirmed, with costs, as I concur also, in that respect, with the views expressed by Judge Freedman.

I concur in the reversal of the judgment for the reasons stated by my brother Curtis.

The defendants also appealed from an order denying their motion for a new trial. The motion was based on the case and exceptions, and it was addressed to a special term of this court, not held by the judge who had tried the case. The grounds of the motion were that the judgment is excessive and contrary to the law and the evidence of the case. Consequently, the object of the motion was to obtain a review on the merits, of the decision of the first judge on a trial of -an issue of fact without a jury. Such a motion is not authorized by law. The mode of reviewing either errors in law or in fact, where the trial is by the court, is entirely distinct from that adopted where the trial

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is by jury ; and a review of a judge’s decision, on a trial of an issue of fact, can only be had at general term on appeal from the judgment entered upon such decision (Code, § 348; Malloy v. Wood, 3 Abb. Pr. 369 ; Watson v. Scriven, 7 How. Pr. 9 ; Burnett v. Phalon, 4 Bosw. 622 ).

The only apparent exceptions, for there really are none, are:

I. If, under section 267 of the Code, .upon motion by either party, to a general or special term, it shall be made to appear that the decision of a single judge is unreasonably delayed, the court may make an order-absolute for a new trial, or may order a new trial, unless the decision shall be filed by a time to be specified in the order.

II. Where the decision filed under section 267 does not authorize a final judgment, but directs further proceedings before a referee or otherwise, either party may move under section 268 for a new trial at general term.

The case before us does not fall within either of these exceptions, and the order appealed from should therefore, be affirmed with costs.

Judgment reversed and a new trial ordered, with, costs to appellants to abide event.

Order affirmed, with costs.

Cases cited

Mitchell v. Read 61 Barb. 310 N.Y. Sup. Ct. 1872-01-01 p. 62, p. 67
Comstock v. White 18 How. Pr. 421 N.Y. Sup. Ct. p. 63
Malloy v. Wood 3 Abb. Pr. 369 N.Y. Super. Ct. p. 72
Watson v. Scriven 7 How. Pr. 9 N.Y. Sup. Ct. p. 72
Burnett v. Phalon 4 Bosw. 622 N.Y. Super. Ct. 1859-10-29 p. 72