McLean v. Fleming, 96 U. S. 245, 24 L. ed. | tion.” Nothing short of the "omnipotence of 828; Tallcot v. Moore, 6 Hun, 106; Popham v. Parliament" is able to exclude a subject from Cole, 66 N. Y. 69, 23 Am. Rep. 22; Merrimack trade in England. 7 Bacon, Abr. p. 23. Two Mfg. Co. v. Garner, 4 E. D. Smith, 387; Dixon exceptions to this general rule were given by Crucible Co. v. Guggenheim, 7 Phila. 408; the early text-writers: First. “It seemeth clear Heinz v. Brueckmann, 134 Pa. 495; Morse v. that the King may, for a reasonable time, make Worrell, 10 Phila. 168.

a good grant 10 anyone of the sole use of any It is no answer to a suit on a label of this art invented or first brought into the realm by description to assert that the individual parts the grantee." Second. The King may grant of the design when separately considered are to particular persons the sole use of some parold or of common right to use.

ticular employments, as “of printing the Holy McLean v. Fleming, supra; Savoyer v. Horn, Scriptures and law books,” etc.

The some1 Fed. Rep. 24; Dixon Crucible Co. v. Guggen- what curious reason given for the second exheim, 7 Phila. 408, 2 Brewst. (Pa.) 321; Carbolic ception is that an uprestrained liberty to print Soap Co. v. Thompson, 25 Fed. Rep. 625; the books to which it relates might be “of danLeclanche Battery Co. v. Western Electric Co. gerous consequences to the public.” To these 23 Fed. Rep. 276; Frese v. Bachof, 14 Blatchf. exceptions a third .must now be added, viz., 432, Price & S. Trademark Cas. 31; Landreth the right of a tradesman to the exclusive use V. Landreth, 22 Fed. Rep. 41; Wellman & D. of such signs, words, or symbols as he may Tobacco Co. v. Ware Tobacco Works, 46 Fed. have adopted and used in his business to disRep. 289; Shan Stocking Co. v. Mack, 21 tinguish articles of his own production from Blatchf. 1; American Solid Leather Button all similar articles produced by otber persons. Co. v. Anthony, 15 R. I. 338.

These exceptions do not impair the force of The test of infringement is similarity in gen- the general rule, Erceptio probat regulam de reeral appearance such as would be likely to bus non exceptis. The rule is unrestricted libmislead one in the ordinary course of purchas- erty in the practice of all arts and trades, and ing the goods.

in the use of the methods by which they are McLean v. Fleming, supra; Atlantic Mill conducted. He who asserts the right to an Co. v. Robinson, 20 Fed. Rep. 217; Gillott v. exclusive privilege in any department of busiEsterbrook, 48 N. Y. 374, 8 Am. Rep. 553; dess must bring himself under the protection Dixon Crucible Co. v. Guggenheim, supra; Lig- of some recognized exception to the rule. The gett & Y. Tobacco Co. v. Aynes, 20 Fed. Rep. plaintiff in this case claims an exclusive priv. 883.

ilege under the third exception, viz., the right A defendant cannot avoid infringement by to the sole use of a certain trademark adopted, using different words and names (Dixon Cru. I used, and registered by them; and they allege cible Co. v. Guggenheim, and Savoyer v. Horn, that the defendants have adopted and are now supra; Hegeman v. O'Byrne, 9 Daly, 264); or by using a trademark which is an imitation of, substituting his own name for that of the plain and an infringement upon, their own. It be. tiff.

comes important, therefore, to learn just what Pratt Appeal, 117 Pa. 401; Menendez v. Holt, the plaintiffs' trademark is, and then to deter128 U. S. 521. 32 L. ed. 528; Leonard v. White's mine whether it has been improperly imitated Golden Lubricator Co. 38 Fed. Rep. 922. by the defendants. Defendant will be adjudged an infringer if

In the bill filed in this case the plaintiffs' the general effect has been copied, even though trademark is fully described, and the precise the particular trade symbol or trademark be form in which it is registered in the United omitted and the defendant's own mark or sym States patent office is given as follows: “Our bol be substituted.

trademark consists of the letters 'P. C. W.' Royal Baking Powder Co. v. Davis, 26 Fed. These letters bave generally been arranged as Rep. 293; Moxie Nerce Food Co. v. Beach, 33 shown in the accompanying fac simile, in Fed. Rep. 248; Heinz v. Brueckmann, 134 Pa. which they appear as script, printed in a hori. 495; Conrad v. Joseph Uhrig Brewing Co. 8 Mo. zontal line, upon a background of any suitable App. 277; Southern White Lead Co. v. Cary, 25 color; but other forms of letters may be emFed. Rep. 125; Wellman & D. Tobacco Co. v. ployed, or they may be differently arranged, Ware Tobacco Works, supra.

without materially altering the character of our It need not be shown that there bas been trademark, the essential features of which are any actual intent to deceive (McLean v. Fle- the letters ‘P. C. W." The business of the ming, supra), or that there has been any actual plaintiffs was the manufacture of confectionery deception.

goods, and particularly of that kind of confecDixon Crucible Co. v. Guggenheim, supra; tionery known as “caramels.". The caramels, Johnston v. Orr Ewing. L. R. 7 App. Cas. when finished, were put up in boxes of various 219.

sizes and forms, which are manufactured by box

makers and sold to the public generally. The Williams, J., delivered the opinion of the plaintiffs had no exclusive right to their use. court:

They were what is known as “stock boxes." Monopolies of any sort have never been favor. When the boxes were filled the particular kind ites with the law. They were held by the com- of caramel they contained was indicated by mon law to be against public policy because printed slips or labels pasted upon them in against common right. The grants, charters, some suitable position, and another slip or label letters-patent, or other form of device or assur- was placed on each box having the trademark ance by the sovereign for their creation were "P. C. W.,” which indicated that the caramels declared by the act of Parliament of 21 Jac. were the genuine production of the plaintiffs' I., chap. 3, to be "utterly void and of none ef- factory. These letters were the initials of the fect, and in no wise to be put in use and opera. I name of P. C. Wiest, and no one but the owner

of the name could rightfully use them without our trademark is the letters ‘P. C. W.!” Those authority from him. The trademark of the are what indicate the ownersbip and origin of defendants consisted also of the initials of the the goods, and they carry their assurance to founder of the business done by them, W. H. the public without regard to their own shape, Weeks, and it is described in the answer and arrangement, or color. A tradesman can have in the statement registered in the United States no exclusive right to mathematical lines, to patent office as consisting of the letters “.W. styles of printing, or colors. 11.:W.,' made in script, in white, on a dark The master finds that the defendants have ground.” The defendants are engaged in the adopted boxes and packages quite like those manufacture of confectionery, and state in used by the plaintiffs. The same is no doubt answer that their goods include stick candies, true of most of the confectioners in the comtoy forms, caramels, and plain confections, monwealth. The boxes and packages are made candied fruits, leaves, puts, and the like. by box manufacturers to contain an even numThese, when prepared for use, are packed in ber of pounds, or fractions of a pound, and boxes of various sizes and forms, each of are necessarily uniform in size and general apwhich bears a slip or label indicating the vari- pearance. They are made for the trade, and ety of confectionery it contains, and another are sold to the trade, without discrimination. slip or label displaying the trademark, which The plaintiffs and the defendants bave an affords to the purchaser an assurance that the equal right to buy from the manufacturers: goods one is about to buy are the genuine prod- and they must buy boxes of the sizes and uct of the defendants' establishment.

shapes made for, and in use by, confectioners As a general proposition, the right of W. generally. The similarity in size and shape of H. Weeks to the use of his name or initials as ihe boxes does not, therefore, justify the masa trademark is as clear as that of P. C. Wiest to ter in finding that they were selected for an the use of bis name or initials. Hoyt v. Hoyt, improper or fraudulent purpose; for the size 143 Pa. 623, 13 L. R. A. 343. They are not the and shape of the boxes are determined by the same. They do not even bear a close resem- makers, and fixed upon with a view to the acblance to each other. And the master reached commodation of the largest number of purthe correct conclusion that there was neither cbasers. imitation por infringement shown by the evi. The other circumstance to which the mas. dence. If the initials had been the same, we ter refers as justifying his decree is the use of do not see how the defendants could bave been the same names for varieties of candies that restrained from using his own; although in the plaintiffs had previously used, and perhaps that case, we think, there should have been devised. But one who invents a machine or a something in the manner of use to distinguish, new combination, or devises a new article, conand enable the public to distinguish, the prod. tributes the result of his skill and his inventive uct of the rival establishments from each powers to the public if be does not take the other; and it is probable that without it a necessary step to secure himself an exclusive court of equity would have restrained the sec- right to use and vend bis invention. If he ond comer. But in a recent case in New York does not do this, he must not complain if bis (Chas. S. Higgins Co. v. Higgins Soap Co. 144 neighbor appropriates his invention or device N. Y. 462, 27 L. R. A. 42), it was held that to his own use, and enters into competition the prior use of one's name by other persons with him in its production and sale. The in the same business does not destroy the right ground on which the courts will interfere in of bim whose name it is to use it. The right such cases is to protect the inventor from the to use one's name seems to bave been held to attempt of his neighbor to sell his own work be a personal right, as clear in business as in as and for the work of the inventor. This personal correspondence. We have, however, would be enjoined as a fraud upon both the no such question here. The master has rec- inventor and the public; but, so long as he ommended, and the court below has issued, an sells his own work as his own, any man may injunction against the defendants restraining imitate the unprotected work of any other man them from the use of the letters “ 'W. H. W.,' as closely as he is able. We think the injuncprinted in script, in white, in a horizontal line, tion awarded in this case cannot be sustained npon a red background.” This decree says to upon the findings of the learned master, and the defendant, "You bave a right to your should be set aside. If the defendants are trademark, and may lawfully use it;" but go really attemping to sell their own confectionery ing beyond the claim of the plaintiffs as stated by representing it to the public as the producin the bill, it adds, “You must not use the tion of the plaintiffs, this, and not an imitation same kind of letters or mode of arrangement or infringement of the trademark, should be or colors used by the plaintiffs.” Now, these charged in the bill as the ground of relief. accessions constitute no part of the plain- The decree is recersed. tiffs' trademark. The description filed in the No order is made in relation to costs. United States patent office states that the let

Mitchell, J., dissenting: ters are generally used in script, but may be used in any other way. They are put upon a effort of appellants to get a part of plaintiff's

This is a perfectly clear case of fraudulent background of “any suitable color,” no color whatever being named. If this injunction can trade, by such imitation of his boxes, labels, be sustained on the ground on which it was

lettering, coloring, etc., as will deceive and put in the court below, there is no style of let- which equity ought to, and usually does, en.

mislead intending purchasers. It is an effort ter, no mode of arrangement, no color in the join, without reference to the strict doctrine of solar spectrum, to which the plaintiffs cannot trademarks. For this reason I would affirm lay equal claim. But, as the plaintiffs them

the decree. selves say in the description from which we have quoted, “the essential characteristic of Dean and Fell, JJ., concur.



Clara H. SPENCER, Appt.,

tract, executed, delivered, and to be performed

in that state. Peter B. MYERS, Impleaded, etc., Respt. 2 Herman, Estoppel, 710; 7 Am. & Eng.

Enc. Law, p. 7; Mactier v. Frith, 6 Wend. 103; (150 N. Y. 269.)

Hallock v. Commercial Ins. Co, 26 N. J. L. 268;

Southern L. Ins. Co. v. Kempton, 56 Ga. 339; 1. The right of a wife to assign a policy Yonge v. Equitable L. Assur. Co. 30 Fed. Rep.

of insurance on the life of her husband, 902; Shattuck v. Mutual L. Ins. Co. 4 Cliff. under Laws 1879, chap. 248, when the policy is 598; Cooper v. Pacific Mut Ins. Co. 7 Nev. 116, issued for her benefit and the husband gives bis 8 Am. Rep. 705; Lorscher v. Supreme Lodge written consent, is not limited to policies issued K. of H. 72 Mich. 316, 2 L. R. A. 206; Hyde or delivered within the state, but extends to

v. Goodnou, 3 N. Y. 266; Western v. Genessee those issued by a foreign company in another

Mut. Ins. Co. 12 N. Y. 258; Milhous v. John2. Stipulations in an insurance policy s 66; Cooke, Life Ins. 43, 1 Bacon, Ben. Soc.

son, 21 N. Y. S. R. 382; 1 May, Ios. 3d ed. against assignments cannot avail an assignor when the insurer declines to take advan- & Life Ins, new ed. 538; Bliss, Life Ins. S 370; tage of them and pays the money into court.

1 Biddle, Ins. § 149; Niblack, Acc. Ins. & Ben.

Soc. 2d ed. $$ 138, 139. (October 13, 1896.)

The statute (Laws 1879, chap. 248), which

provides for assignment by wives of policies of A PPEAL by plaintiff from a judgment of insurance for their benefit upon the lives of

the General Term of the Supreme Court, their husbands, covers by its terms none but Fourth Department, reversing a judgment of policies “issued within the state of New York,” the Oneida County Circuit in favor of plaintiff and it should be strictly construed. in an action brought to recover the proceeds Brick v. Campbell, 122 N. Y. 343, 10 L. R. of a life insurance policy which defendant A. 259; Miller v. Campbell, 140 N. Y. 460; claimed under an assigoment. Affirmed. Travelers' Ins. Co. v. Healey, 86 Hun, 530. The facts are stated in the opinion.

Statutes conferring powers and rights upon Mr. S. M. Lindsley, for appellant: married women are in derogation of common

The foundation for the assignment of the law, and are to be construed strictly. policy was the agreement made October 24, 23 Am. & Eng. Enc. Law, p. 389; Bertles v. 1887, between the husband and wife, that the Nunan, 92 N. Y. 157, 44 Am. Rep. 361; Fitzwife would upon demand execute a transfer of gerald v. Quann, 109 N. Y. 441. the policy.

The courts bave strictly limited the scope

of That agreement being a contract directly be- the act of 1873 to its precise wording. tween husband and wife was void.

Smillie v. Quinn, 90 N. Y. 497; Brick v. Hendricks v. Isaacs, 117 N. Y. 411, 6 L. R. Campbell, 122 N. Y. 343, 10 L. R. A. 259; A. 559.

Brummer v. Cohn, 86 N. Y. 17, 40 Am. Rep. Prior to the legislative acts (Laws 1873, 503. cbap. 821, and Laws 1879, chap. 248), a mar- The laws of Connecticut have nothing to do ried woman was incapable of assigning a pol. with the assignment which was executed in icy of insurance issued upon the life of he this state. husband for her benefit.

Miller v. Campbell, 140 N. Y. 457. Eadie v. Slimmon, 26 N. Y. 9, 82 Am. Dec. The policy was created without any assign395; Brick v. Campbell, 122 N. Y. 343, 10 L. able quality. R. A. 259; Romaine v. Chauncey, 129 N. Y. Bacon, Ben, Soc. & Life Ins. & 295; Unity 574, 14 L. R. A. 712; Miller v. Campbell, 140 Mut. L. Assur. As8o. v. Dugan, 118 Mass. N. Y. 457.

219; Knickerbocker L. Ins. Co. v. Weitz, 99 Laws of 1873, chap. 821, which provided Mass. 157; Sterens v. Warren, 101 Mass. 564; that a married woman might dispose of such Warnock v. Davis, 104 U. S. 775, 26 L. ed. policy in case she have no child or children 924; Fitzpatrick v. Hartford Life & A. Ins. born of her body," has po application here, Co. 56 Conn. 133. because this plaintiff has a child born of her Restrictions in policies as to transfers or asbody yet living.

signments are always upheld. Laws 1879, chap. 248, is by its express terms New York L. Ins. Co. v. Flack, 56 Am. Dec. applicable to no policies of insurance except 749, note, citing 1 Phillips, Ins. SS 107, 207; those and those only which were “issued Smith v. Saratoga County Mut. F. Ins. Co. 1 within the state of New York."

Hill, 497, 3 Hill, 508; Ferree v. Oxford F. & L. This policy was pot “issued within the state Ins. Co. 67 Pa. 373, 5 Am. Rep. 436; Waterhouse of New York.” It was issued at the office of v. Gloucester F. Ins. Co. 69 Me. 409; Lazarus the company in Hartford, Connecticut, and v. Commonwealth Ins. Co. 5 Pick, 76; Stolle v. immediately became an effective and binding Ætna F. & J. Ins. Co. 10 W. Va. 546, 27 contract.

Am. Rep. 593; Lynde v. Newark F. Ins. Co. Cooper v. Pacific Mut. Ins. Co.7 Nev. 116, 8 139 Mass. 57. Am. Rep. 705.

Equitable considerations are of no moment. By its own terms it is a Connecticut con- Milhous V. Johnson, 21 N. Y. S. R. 382; NOTE.--As to assignments of life insurance pol- | (Ind.) 9 L. R. A. 663; also Brick v. Campbell (N. Y.) icies made payable to a wife, see a considerable 10 L. R. A. 259, and note. number of cases in a note to Jobpson v. Alexander

Frank v. Mutual L, Ing. Co. 102 N. Y. 266, 55 The provision in the policy "that no assignAm. Rep. 807; Brummer v. Cohn, 86 N. Y. ment of this policy shall be valid” does not 11, 40 Am. Rep. 503; Brick v. Campbell, 122 affect the assignment to the defendant Myers. N. Y. 337, 10 L. R. A. 259; Champlin v. Lay- Leinkauf v. Calman, 110 N. Y. 50. tin, 18 Wend. 412, 31 Ain. Dec. 382; Weed v. Weed, 94 N. Y. 248.

O'Brien, J., delivered the opinion of the Mr. William Kernan, for respondent: court:

The assignment of the policy by the plaintiff, The plaintiff claimed to be entitled to the with the written consent of ber husband, to proceeds of a policy of insurance upon the life the defendant, Myers, was valid, and the de: of her husband, and the learned trial judge fendant, Myers, was entitled to the policy and sustained her claim. The general term reis entitled to the proceeds thereof.

versed the judgment, having arrived at a difLaws 1879, chap. 248, § 1.

ferent conclusion, upon what seems to us to In the interpretation of statutes the great be a very reasonable construction of a statute principle which is to control is the intention of which is involved. On the 28th of October, ihe legislature in passing the same, which in- 1880, the plaintiff's husband insured his life tention is to be ascertained from the cause or for her benefit in the Connecticut Mutual Life necessity of making the statute as well as other Insurance Company. The policy was issued circumstances.

at Hartford, and sent by mail to one of the People, Wood. v. Lacombe, 99 N. Y. 43; Peo- agents of the company in this state, to be deple, Westchester F. Ins. Co., v. Davenport, 91 livered to the husband, who had made the N. Y. 574; {People, Commonwealth Ins. Co., v. written application upon which it was issued. Coleman, 121 N. Y. 542.

The insured died in January, 1890, with the The policy was issued within the meaning policy in force. The plaintiff claimed the of the act of 1879, “within the state of New money payable under the policy amounting to York, upon the lives of husbands for the ben- $2,000, as widow of the insured, and the payee efit and use of their wives, in pursuance of the named therein. The defendant also claimed laws of the state."

it under a written assignment from the plaidSo far as our courts have discussed and stiff, to which her husband, the deceased, had passed upon this question, they have sustained consented in writing executed in due form. such assignment of policies issued by compa- Both parties claiming the money, the company pies of other states and assigned in this state. refused to pay either, and the plaintiff brought

Wilson v. Lawrence, 13 Hun, 238, 76 N. Y. the action against it alone. Subsequently it 585; Brick v. Campbell, 122 N. Y. 337, 10 L. paid the money into court, and the assignee R. A. 259; Connecticut Mut. L. Ins. Co. v. was made a party. The controversy is, thereVan Campen, 32 N. Y. S. R. 1125; ' Miller v. fore, between the widow and her assignee, and Campbell, 140 N. Y. 457.

turns upon the validity of the assignment. It Our courts have not held that outside of the is quite true, as urged by the learned counsel act of 1840 such policies are not assignable. for the plaintiff, that prior to the statutes (Laws They have held that their nonassignability was 1873, chap. 821; Laws 1879, chap. 248) a mardue to the act itself, that the designs of the ried woman was incapable of assigning a policy act were to provide for widowhood, and the of insurance for her benefit upon the life of her intention was that the wife could not fustrate husband. Miller v. Campbell, 140 N. Y. 457; that design by assignment.

Romaine v. Chauncey, 129 N. Y. 574, 14 L. R. Eadie v. slimmon, 26 N. Y. 9, 82 Am. Dec. A. 712; Brick v. Campbell, 122 N. Y. 343, 10 395; Living v. Domett, 26 Iun, 151: Wilson v. L. R. A. 259; Eadie v. Slimmon, 26 N. Y. 9, Lawrence, 13 Hun, 238; Barry v. Equitable L. 82 Am. Dec. 395. But the obvious purpose of Assur. Soc. 59 N. Y. 587; Brummer v. Cohn, 86 these statutes was to remove this disability, and N. Y. 11, 40 Am. Rep. 503; Frank v. Mutual it is not contended that the incapacity still exL. Ins. Co. 102 N. Y. 266, 55 Am. Rep. 807. ists in general, but only in particular cases.

If the plaintiff claims the benefit of the act The learned counsel for the plaintiff has deof 1840 making the policy nonassignable, then voted a considerable part of his argument to she must submit to the act of 1879, which did establish the proposition that the policy was isaway with the nonassignability of the policy sued and delivered in the state of Connecticut, under the act of 1840 and rendered it assigra- and not in this state, and therefore is a Conble.

necticut contract. For the purposes of this The assignment of such policy by the wife case we will assume that he is correct in this was allowed by the law of Connecticut and is contention. But we think that is not a material valid, and the defendant is entitled to the pro- circumstance in the determination of the rights ceeds under such law,

of the parties in a controversy between them Continental L. Ins. Co. v. Palmer, 42/Conn. with respect to the right to receive the money. 66, 19 Am. Rep. 530: Connecticut Vut. L. Ins. Such a policy is assignable by the wife under Co. v. Westerrelt, 52 Conn. 586: Barry v. the laws of Connecticut. Continental L. Equitable L. Assur. Soc. 59 N. Y. 587. Ins. Co. v. Palmer, 42 Conn. 66, 19 Am.

The fact that the hubsand and wife had a Rep. 530: Connecticut Mut. L. Ins. Co. v. Weschild to whom the insurance was payable in tervelt, 52 Conn. 586; Barry v. Equitable L. case the wife did not survive the husband did Assur. Soc. 59 N. Y. 587. The law of the not affect the validity of the assignment. The place where the contract is made is sometimes contingent interest of the child did not arise, important when questions concerning its validand by the assignment the defendant Myers be- ity or construction are involved. But in this came vested with the whole interest in the pol. case no such questions arise. Ti sole ques. icy.

tion is whether it was transferable, and whether Anderson v. Goldsmidt, 103 N. Y. 618. the defendant, by the assignment, has acquired the right and title to the proceeds. Nor is there created, assignable. It is scarcely possible that any question made with respect to the suffi- the question as to which side of the boundary ciency of the instrument of assignment, in form line of the state the policy was made or delivand substance, to pass the beneficial interest, if, ered could have been present to the legislative by the laws of this state, the policy could be mind. transferred under any circumstances. In what- It is said that statutes changing the common ever state or jurisdiction the obligation had its law with respect to the rights and disabilities legal origin, it was held within this state as prop- of married women must be strictly construed. erty,and was subject, in all respects, to the laws That, of course, is a well-settled principle, but of this state. The plaintiff's contention must is bardly applicable here. That the common rest entirely upon the proposition that by the law has been changed by the statute, there is laws of this state she was incapable of making a no dispute, and can be none. It is admitted valid assignment, and this we understand to that the intention was to remove the incapacity be the ground upon wbich she relies to sustain of a married woman to assign an insurance this appeal. The act of 1879 (chap. 248) is eu- policy issued for her benefit on the husband's titled "An Act for the Relief of Policy Holders life. What is claimed is that the power thus in Life Insurance Companies," and the 1st conferred is not generally applicable to all such section reads as follows: "All policies of in- policies, but special, depending entirely on the surance heretofore or hereafter issued witbin place where they were issued,- ,-a circumstance the state of New York upon the lives of hus- that cannot be supposed to have had any inbands for the benefit and use of their wives, influence upoị the legislation or the choice of pursuance of the laws of this state, shall be, language for the expression of the thought in from and after the passage of this act, assign the legislative mind. The rule does not reable by said wife with the written consent of quire courts in any case to seize upon some her husband; or, in case of her death, by her word or expression in a statute, and, by giving legal representatives, with the written consent to them a narrow or literal meaning, defeat of her husband, to any person whomsoever, or the general purpose and manifest policy inbe surrendered to the company issuing such tended to be promoted. It being conceded policy, with the written consent of the hus that the intention was to enable a married band." That this statute has removed the dis- woman to transfer her interest in certain propabilities of married women to assign insurance erty, we are not required to resort to strict policies upon the lives of their husbands, at construction for the purpose of limiting the least to some extent, is not, and of course can power to obligations created in this state, when not be, denied. But the learned counsel for we can see that its convenience and necessity the plaintiff insists that it applies only to pol- are equally applicable to contracts made else. icies “issued within the state of New York;"where. In such a case we should be guided that is to say, that it extends no further than by the general and well-settled principles for to enable them to assign policies issued by our the construction of statutes. They were well domestic companies; and that, since the policy stated in the case of People, Wood, v. Lacombe, in question was issued by a foreign company, 199 N. Y. 43, in this language: · In the interand in another state, the disability to assign pretation of statutes, the great principle which still exists, and existed when the plaintiff made is to control is the intention of the legislature the assignment in question. We think that in passing the same, which intention is to be such a construction of the statute is altogether ascertained from the cause or necessity of

It rests entirely upon a close ad- making the statute as well as other circumherence to the literal meaning of words, and stances. A strict and literal interpretation is fails to take into consideration the policy and pot always to be adhered to, and where the general purpose of the statute. Of course, it case is brought within the intention of the was passed for the purpose, as indicated by the makers of the statute, it is within the statute, title, of relieving married women from the dis- although by a technical interpretation it is not ability referred to. But what good reason is within its letter. It is the spirit and purpose there for saying that the legislature intended, of a statute which are to be regarded in its inin a case where two policies were issued upon terpretation; and if these find fair expression the husband's life for the benefit of the wife, in the statute, it should be so construed as to one by a foreign and the other by a domestic carry out the legislative intent, even although company, that the latter was to be transferable such construction is contrary to the literal and the former not? At the time of the pas- meaning of some provisions of the statute. A sage of the act probably one half the policies reasonable construction should be adopted in for the benefit of married women within the all cases where there is a doubt or uncertainty state had been issued by foreign companies, in regard to the intention of the lawmakers. and they were being constantly issued in the These general rules are upheld by numerous same proportion. It is difficult to suppose any authorities. People, Westchester F. Ins. Co., practical or rational purpose that the legisla- v. Davenport, 91 N. Y. 574; People, Commonture could have had in view if it intended to wealth Ins. Co., v. Coleman, 121 N. Y. 542; remove the disability to assign as to one half Smith v. People, 47 N. Y. 330. The stipulathese policies and retain it as to the other half. tions in the policy against an assignment do not Nor can the purpose of discriminating against affect the question as to the defendant's rights. foreign companies and favoring our own be Whatever force these clauses bad, the comimputed to the lawmaking power with any pany alone can take advantage of them, and,

It must be assumed that the in- as it has declined to, and paid the money into tention of the statute was to make obligations court, they do not concern the plaintiff. We of this character held in this state, wherever think that the assignment of the policy to the

too narrow.

more reason.

« ForrigeFortsett »