surrogate could be enforced by exe- for regulating and grading a portion of Madison Avenue. The Comptroller, in accordance with an order obtained from the Court for that purpose, proceeded to pass upon the sufficiency of the sureties proposed, and rejected them as insufficient. The relator thereupon, with the consent of the Commissioner, proceeded to name new sureties, and the Comptroller having failed to act, this proceeding was commenced to compel him to pass upon the sufficiency of the new sureties. Before the hearing of the motion, the Commissioner determined to withdraw his consent to the substitution of the new sureties, cution against the body, and not by Opinion by Rapallo, J. All con- and requested a return of the papers cur, Miller, J., taking no part. MANDAMUS. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. The people ex rel. James McKone v. Andrew H. Green, Comptroller, and Allen Campbell, Commissioner of Public Works. Decided May 21, 1877. The head of a department in the City of New York may, after consenting to the substitution of sureties in place of these originally proposed, by one seeking to obtain a contract of a public letting, if he becomes satisfied that such substitution would be unwise, at any time before such sureties are approved by the Comptroller, withdraw his consent. The writ of mandamus is not a writ of right, and a court may, and should refuse to grant it where a proper case for such refusal is presented, and where the relator has another remedy equally as effective, and attended with less hardship to those sought to be affected by the writ. Appeal from judgment of the Special Term denying motion for peremptory mandamus. The relator was the lowest bidder upon proposals to him. The Comptroller had in these proceeding, prior thereto, been prohibited from refusing to approve the sureties, or from returning the agreement of the sureties unapproved to the Commissioner. Before any further action could be taken, an order was obtained restraining the Commissioner from taking any steps towards the withdrawal of his consent, until after the hearing and determination of the motion for a mandamus. The counsel to the cor poration thereupon, upon an affidavit of the Commissioner that he desired to reconsider the matter, as the work could be let at half the price at which McKone proposed to do it, obtained an order to show cause why the order restraining the Commissioner should not be set aside, and the Court directed that such order should be heard at the same time as the motion for a mandamus. The motions so heard were: 1. The motion to set aside the order restraining the Commissioner from reconsidering his consent, &c. 2. SERVICE OF SUMMONS ON The relator's motion for a mandamus. The former was granted, the latter denied. FOREIGN CORPORATION. The service of summons on a director of a for eign corporation while he is temporarily in the State, is good where the cause of action arose and the principal part of it was performed within the State. N. Y. COURT OF APPEALS Hiller, respt., v. B. & M. R. R. R. Co., applt. Decided June 19, 1877. Plaintiff, a foreign corporation, contracted with defendant, a corporation in Nebraska, to procure during five years, Menonites, who were expected to emigrate to this country from Russia, to purchase and settle on defendant's lands in Nebraska. He was bound during the whole time to maintain at his own expense an office in New York City, where his headquarters were to be, and was to go to Europe for two or three months to arrange for the emigration of the Menonites. No other place was specified in the contract where service under it was to be performed. An action was commenced upon said contract by the service of a summons upon one of defendant's directors while he was temporarily in this state in the pursuit of his own business. James A. Deering, for applt. Geo. P. Andrews, for respt. Held, The consent for the substitution of new sureties for those already proposed is an act of grace, on the part of the head of a depart ment, no obligation is imposed to give such consent, § 27, article 2, chap. 7, Revised Ordinances of 1866. There is no new consideration, and if the head of the department becomes satisfied before the act is consummated by the Comptroller's approval of the sureties, that he has acted unwisely or unadvisedly, it should be, and it is, within his power to withdraw his consent. The writ of mandamus is not a writ of right. It is one of which the Court, exercising a sound discretion, has full control, and, in this case, should be denied as a proper exercise of judicial discretion, because, if entitled to the contract, he has another remedy to recover damages, which would be far less injurious to the city, and especially to the persons on whom the expense of the work would largely be thrown, if the contract were entered into, and, because it is extremely doubtful whether there is not such a departure from the ordinance in making up the specifications, as to render the action of the Commissioner illegal, and the contract in excess of the authority conferred by the Ordinance of the Common Council. Judgment affirmed with $10 costs authorize such a service of a summons, and disbursements. Joseph II. Choate, for applt. Clarence Lerow, for the respt. Held, That as the cause of action was one which arose in this state, and the principal part of it was to be performed here, and the service was valid upon the corporation (Code, § 134; 63 N. Y., 114; 3 id., 132), that the legislature had a right to provide for and and did not violate any provision of Opinion by Davis, P. J.; Daniels, the constitution in so doing. J., concurring. Order of General Term, reversing order of Special Term, granting motion to set aside service of summons, affirmed. Opinion by Earl, J. All concur. USURY. PROOF. Where the contract itself raises no presumption of usury, the onus is upon the party attacking it upon that ground to prove the guilty intent. This was an action to recover back, on the ground of usury, certain warehouse receipts held by defendant. It appeared that L., plaintiff's assignor, who was a dealer in produce, entered into a contract, in a proper and usual form, with defendant, a commission merchant, for the loan or advance of his money, at the legal rate of interest, to L., to purchase or carry his merchandise, and also for an agreed commission to undertake the care and management and sale of the commodity. Samuel Iland, for applt. Held, That the contract was not necessarily usurious; that there was no presumption of an illegal or usurious intent in the agreement itself, and the onus was upon the party seeking to impeach it on that ground to prove the guilty intent, and that the contract was a cover for usury, and for the loan of money upon usury. 32 N. Y., 605; 27 id., 137; 4 Seld., 280; 19 J. R., 160; 4 Hill., 211; 4 J. Ch., 69; 93 U. S. R., 344. Where the finding of a referee is unsupported by evidence, an exception to the report presents a question of law reviewable on appeal. 41 N. Y., 159; 49 id., 57. Order of General Term, granting new trial, and reversing judgment for plaintiff, affirmed. Opinion by Allen, J. All concur, except Church, Ch. J., not voting. TRADE-MARK. SUPREME COURT OF RHODE ISLAND. Carmichel et al. v. Latimer et al. Decided Nov., 1876. There is no property whatever in a trade-mark. But a person may acquire a right of using a particular mark for articles which he has manufactured, so that he may be able to prevent any other person from using it, because the mark denotes that the articles so marked are manufactured by a certain per son. Whether a trade-mark can be assigned. QUÆRE. It is not common in this Country, and in New York it is forbidden by statute, to keep up the name of an old mercantile firm for several generations or successions of partners, when no partner of the original name remains. The bill alleges that, from July 1, 1864, to April 1, 1871, George G. Stillman, Amos Stillman, Jonathan P. Stillman, Thomas V. Stillman Albert Stillman, and A. Carmichel, were partners by the style of Stillman & Co., in manufacturing linseys, using on their goods a ticket or label containing "Stillman & Co.," on it, as a trade-mark, and that they had acquired a considerable reputation for said goods. Albert died April 1, 1871, and his share was bought out by Amos, Jonathan, and Thomas, and the firm continued to November, 1871, when George bought the right to said ticket, and continued to manufacture to last case, 43 Eng. Com. Law Rep., 204; Southern v. How, Popham, 143; 3 Cro. Jac., 468. But as that remedy is now seldom resorted to, we need only inquire into the grounds on which courts of equity exercise jurisdiction. In some of the early cases, it was rest until July 6, 1875, when he sold said ticket to the plaintiffs, whose firm consisted of A. Carmichel, William B. Lawton, George Carmichel, Jr., and W. P. Barney. The plaintiffs made two varieties of linseys, and their goods were known not only as Stillman & Co.'s linseys, but as Still-ed on the ground of fraud. In some man linseys, and had kept up the reputation of the goods. And it is further alleged that the defendants (whose firm, consisting of Robert F. Latimer, James Stillman, and Alexander Jaffrey, was formed August, 1874) had begun in July, 1876, and were continuing to make linseys-some like plaintiffs' and some inferior, and with a fraudulent design to injure the plaintiffs and the public, and knowingly and wrongfully, either with intent to defraud, or without such intent, put upon them a label or trade-mark, in imitation of that of the plaintifis, whereby the public are liable to be, and are deceived, and the plaintiffs deprived of great profit, etc. A suit at law was commenced in August, 1876, and the bill containing the foregoing allegations was filed Angust 11, 1876. An injunction having been granted until the hearing, a motion for preliminary injunction was heard before Matteson, J., and by him refused, and the matter has now been argued at great length before the full court. Peabody&Crofts, for compls. N. F. Dixon, Jr., & N. F. Dixon, for respts. Held, In the old actions at law the remedy was chiefly on the ground of frand. See a review of them in Motley v. Downman, 3 M. & C., 1. See, also, Crawshay v. Thompson et al., 4 M. & G., 357; also American note later cases, partly on that ground and partly on the ground that it was to be treated as a species of property. In the case of The Collins Co. v. Brown, 3 Kay & J., 423, which was a case of edge tools, Page Wood, V. C., says (page 426): "It is now settled law, that there is no property whatever in a trade-mark, but that a person may acquire a right of using a particular mark for articles which he has manufactured, so that he may be able to prevent any other person from using it, because the mark denotes that articles so marked were manufactured by a certain person." And, page 431: "No person can acquire property in a trade-mark." But no one has a right to use it to deceive. Subsequently, in the case of Hall v. Barrows, Lord Romilly, M. R. (A. D. 1863, 11 W. R., 525), held that it rested on the ground of property ; and Lord Westbury, L. C., in the same case (12 W. R., 322; 4 De G., J. & S., 150), put it on the same ground. Duer, J., in Fetridge v. Wells, 4 Ab. Pr., 144, on page 146, says: "It is not necessary to deny that a name may in some cases be rightfully used and protected as a trade-mark; but this is only true when the name is used merely as indicating the true origin or ownership of the article offered for sale; never where it is used. to designate the article itself, and has become, by adoption and use, its proper appellation." See, also, Fetridge v. Wells, 13 How. Pr., 385. In Ferguson v. Davol Mills, 2 Brews., 314, Alison, J., says on page 318: A person "has no right to a sign or symbol which, from the nature of the fact it is used to signify, others may employ with equal truth, and therefore have an equal right to use for the same purpose." And on page 320: "Protection is given only in consideration of the guarantee of the integrity of the manufacturer or merchant, certified by his trade mark. When the device fails to accomplish this end, it is no trade-mark, and all claims founded thereon must be rejected." And that it is only on the ground of false representations that a complainant is entitled to protection. These remarks on the nature of the right have a bearing on the question of its assignability. Upon this question there has been a great variety | of decisions, and it is difficult to reconcile them. A proper classification of the cases would probably remove some of the difficulty. good-will of the business; and in many of these cases the sale of the trade-mark would be upheld. See Dixon Crucible Co. v. Guggenheim, 2 Brews., 321. So where the name denotes the product of a particular property, e. g., "Congress Spring," or wine made from a particular vineyard. In such cases there is no property in the words, but only as the means of designating a property. Congress & Empire Spring Co. v. High Rock Congress Spring Co., 57 Barb. S. C., 526. But where the reputation of the goods and of the name has grown out of excellence of manufacture, depending on the honesty and skill of the maker, it is more difficult to hold that it can be sold to a stranger, or that it is generally assignable. In The Leather Cloth Co. v. Amer. Leather Cloth Co., 11 W. R., 931; 1 H. & M., 271; 4 De G., J. & S., 137; 11 H. L., 523, an English company had purchased the business of an American company, and applied for an injunction against persons using certain marks, representing their goods as being the article known as Where, from its being a peculiar invention, or secret process, or particular mode of manufacture, not gen-"Crocket's leather cloth," etc., etc., erally known to the public, the knowledge of these processes might be communicated to others and the public, and the purchasers should be protected against imitations. These circumstances would give a value to the process, and assimilate it to the nature of property which might be disposed of. Wood, V. C, had granted an injunetion, and, on appeal, Westbury L. C., reversed his decision (4 De G., J. & S., 137), and this reversal was confirmed by the House of Lords. 11 II. L., 523 (A. D. 1865). Many remarks of the lord chancellor and of the lords are directly applicable to the case before us. Says the lord chancellor (4 De G., J. & S., 143): In some of the cases the question has been between partners, or there" But suppose an individual or a firm has been a sale of a business, to be to have gained credit for a particular continued by the vendee, and more or manufacture, and that the goods are less connected with a place and the marked or stamped in such a way as |