(195 N.Y.S.) other witnesses could not be examined under the notice, and the reference or attempted reference to such witnesses is a nullity, and must be treated as such. A draft order may be submitted, denying the motion to vacate the notice, with costs. A draft order may also be submitted, in the same form, denying the motion to vacate the notice in the case of Richmond v. Hercules Paper Corporation. BRENES v. HEDGES. (Supreme Court, Appellate Division, First Department. July 14, 1922.) Judgment 153(1)—Motion to vacate default more than year after entry denied. Where judgment dismissing complaint was entered March 30, 1921, a motion to open default and set aside the judgment May 5, 1922, without explanation for the extraordinary delay, was not within Civil Practice Act, § 108, providing that the court, in its discretion, at any time within one year after notice thereof, may relieve a party from a judgment taken against him through his mistake, surprise, etc. Appeal from Supreme Court, New York County. Action by Sophie Brenes against Job E. Hedges, as receiver, etc. From an order of the Supreme Court, vacating a judgment dismissing the complaint, and restoring the cause to the trial calendar, defendant appeals. Reversed, and motion to vacate denied. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ. Winthrop & Stimson, of New York City (Albert L. Wilbur, of New York City, of counsel), for appellant. M. N. Schleider, of New York City (Samuel D. Bierman, of Brooklyn, of counsel), for respondent. GREENBAUM, J. The action was brought to recover the sum of $30,000 as damages for personal injuries alleged to have been sustained by the plaintiff on May 9, 1919, when she was struck by a trolley car operated by the defendant at Fifth street and the Bowery in the borough of Manhattan. The summons and complaint were served or May 28, 1919; the answer was served June 9, 1919. The cause was duly noticed for trial, and on January 19, 1921, appeared on the day calendar, and again on February 7 and 11, 1921, when it was sent to Part IV for trial. Plaintiff applied for an adjournment on the plea of the illness of trial counsel, and the cause was set down for trial for February 14, 1921, when a further application for postponement was made on the statement that trial counsel was ill. The cause was held until the following day, February 15, when a further application was made for postponement, which was denied. The complaint was dismissed upon motion of defendant's counsel and judgment upon the dismissal was entered by the defendant on For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes March 30, 1921. No steps were taken to be relieved from the judgment until May 5, 1922, upwards of a year after the entry thereof, when the plaintiff sought by a motion at Special Term to open the default and set aside the judgment upon affidavits which merely recited the incidents above detailed, without giving any explanation whatever for the extraordinary delay in moving to open the default. The Special Term granted plaintiff's motion upon payment of $30 costs. Section 108 of the Civil Practice Act provides as follows: "The court, in its discretion, and upon such terms as justice requires, at any time within one year after notice thereof, may relieve a party from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise or excusable neglect." The order appealed from is reversed, with $10 cost and disbursements, and the motion to vacate the judgment is denied, with $10 costs. All concur. (202 App. Div. 490) AMERICAN YELLOW TAXI OPERATORS, Inc., v. DIAMOND et al. (Supreme Court, Appellate Division, First Department. July 14, 1922.) Trade-marks and trade-names and unfair competition 68-Taxicab company held entitled to restrain use of similar lettering, but not color or design. Where a taxicab company used similar lettering and numbering on its cabs, and the cabs were the same color, and arranged in the same manner, plaintiff was entitled to enjoin the use of the lettering, but was not entitled to an injunction as to the color scheme, where the color scheme was used in the city for years before plaintiff commenced business; both plaintiff and defendants having purchased the taxicabs from the same manufacturer. Appeal from Supreme Court, New York County. Action by the American Yellow Taxi Operators, Inc., against Jack Diamond and another. From an order granting plaintiff's motion for an injunction pendente lite, restraining the defendant from operating certain taxicabs alleged to be imitations, and operated in unfair competition with the taxicabs of the plaintiff, defendants appeal. Modified and affirmed. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ. Denis O'L. Cohalan, of New York City (Roswell P. C. May, of New York City, on the brief), for appellants. Parker & Aaron, of New York City (Herman Aaron, of New York City, of counsel, and Charles Adkins Baker, of New York City, on the brief), for respondent. PAGE, J. The order in this case is much broader than the decision of the learned justice would seem to warrant, and in this respect conflicts with his decision in the American Yellow Taxi Operators, Inc., v. Barry, — App. Div. -, 194 N. Y. Supp. 913, argued simultaneously with this appeal, and decided herewith. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) The plaintiff operates taxicabs painted yellow, or orange and black, upon the panel of the door of which, in black letters, appear the following: On the first line, "American," in small letters; on the second, "YELLOW," and on the third, "TAXI," in large, prominent letters; on the fourth, in letters of the same size as the first line, "Operators, Inc.;" on the fifth, in letters slightly larger than the fourth, "Lenox 2300.” The defendants operate taxicabs of identical design; in fact, they are bought from the same manufacturer as plaintiff's, painted with the same colors, similarly arranged, and on the panel of the door, in black letters of the same size and character, and in evident imitation. of the plaintiff's design, there is painted on the first line, "At your service;" on the second, "YALE;" on the third, "TAXI;" and on the fourth, "Corporation." Further, on plaintiff's and defendants' cars, in the same position, immediately behind the hood, are painted numerals in exact size and style. When the plaintiff first commenced the operation of its cabs, it had on the panels of the doors of its cabs a circle, inclosing the words "YELLOW TAXI Lenox 2300," with a large Y superimposed at the top. Defendants adopted a similar design. When plaintiff changed the inscription on the panels of the door to the present form, defendants also changed the inscription on the panels of the doors of their cabs in simulation to those of the plaintiff. These facts show that the defendants are imitating the marking on the plaintiff's cabs for the purpose of deceiving the public and to divert custom from the plaintiff, and are operating their cabs in competition with the plaintiff. The plaintiff, however, has not demonstrated, with sufficient certainty to justify the inclusion in the preliminary injunction, its exclusive right to use the color scheme or combination of the colors yellow or orange and black, arranged in the manner employed by the plaintiff. It is admitted that this color scheme was used in New York City for years, before plaintiff was incorporated or commenced business operations, by corporations and individuals with whom the plaintiff had no connection or successionary rights. This color scheme is largely used in other cities throughout the United States. Identical taxicabs in make and color were exposed for sale in New York City by the New York Yellow Cab Company, the sales agent for the Yellow Cab Manufacturing Company, who make a specialty of producing taxicabs, and advertise their product, showing this arrangement of colors. The plaintiff and defendants both purchased the taxicabs from this company, and have not been given any exclusive right to use this combination, even if said manufacturing company could grant any such license. Therefore the injunction order should be modified, by striking therefrom the words "finish, color, or combination of colors, get-up, style, or dress," and, as so modified, affirmed, with $10 costs and disbursements to the appellants. All concur. (202 App. Div. 471) PEIERLS, BUHLER & CO., Inc., v. NEWBURGER et al. (Supreme Court, Appellate Division, First Department. July 14, 1922.) 1. Sales 175-Buyer's request that no more goods be delivered held not an anticipatory breach. A mere request by the buyers that no more goods be delivered held not an anticipatory breach, excusing the seller from further performance, especially where the latter, in its letter canceling the order, did not state such ground. 2. Sales 91-Contract held not to give seller option to rescind. Under a contract providing that all partial deliveries were to be paid for at contract prices on maturity of bills therefor, and that all terms and limits of credit specified therein were subject at all times to be changed or withdrawn by the seller, the seller did not have the option, on becoming dissatisfied with the financial condition of the buyer, to cancel the contract and refuse to make further deliveries, but could only cancel the terms and credit and insist on payment of cash. 3. Sales 92-Wrongful cancellation by seller entitles buyer, if acquiescing therein, to tender back goods received under contract. Where seller, although without right to do so, canceled the contract, the buyer had the right to tender back what goods he had received under it, if he was willing to acquiesce in the cancellation, and on so doing would not be liable for the purchase price of such goods. Appeal from Trial Term, New York County. Action by Peierls, Buhler & Co., Inc., against Isidore Newburger and another. From a judgment for plaintiff on a jury verdict, and from an order denying defendants' motion to set aside the verdict and for a new trial, defendants appeal. Judgment and order reversed, and judgment directed for defendants. Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and GREENBAUM, JJ. Siegel & Corn, of New York City (Henry S. Dottenheim, of New York City, of counsel, and Jacob H. Corn, of New York City, on the brief), for appellants. Douglass Newman, of New York City, for respondent. PAGE, J. The plaintiff is a factor, and brings suit to recover the purchase price of seven pieces of dry goods sold by the Saxonia Dress Goods Mills to the defendants; the claim having been assigned by the mills to the plaintiff. The facts are that on April 28, 1921, the defendants agreed to purchase from the Saxonia Dress Goods Mills 20 pieces of merchandise, sample pieces of each style to be delivered during May, the balance during July or August, at Saxonia's option. The contract provided that partial deliveries are to be paid for at contract prices upon maturity of bills therefor, and further that all terms and limits of credit. specified therein were subject at all times before and after acceptance thereof to be changed or withdrawn by Peierls, Buhler & Co., Inc., to whom all bills were payable. There were delivered during May and June the seven sample pieces and bills rendered therefor. On June 14th Goldstein & Newburger dissolved partnership and sent out a For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (195 N.Y.S.) notice thereof; thereupon Peierls, Buhler & Co., Inc., sent a representative, who called on Mr. Newburger, who was to continue the business, and inquired whether the withdrawing of Goldstein from the firm had affected their financial condition, and requested that a financial statement be furnished. Newburger refused to give a financial statement, and said that if he did give one it would be made out after August 1st and as of that date. On or about the 20th of July the Saxonia Dress Goods Mills were prepared to ship the remainder of the goods called for by the order, but when the shipping ticket was presented to the plaintiff they refused to check them out. Thereupon the Saxonia Dress Goods Mills wrote to defendants the following letter: "Defendants' Exhibit B. "Registered Mail-Receipt Demanded. July 20, 1921. "Messrs. Goldstein & Newburger, 225 4th Ave., City-Dept. A. Peter Goldstein. "Gentlemen: Our credit office has informed us to-day that they are not willing to check out the goods we have on order for you and which we are ready to deliver. For this reason we regret to be compelled to cancel your order on our books, of which we ask you to kindly take note. Any further information regarding this we ask you to kindly obtain from the credit office, as we are unable to do so. "Very truly yours, "DA/EG. Saxonia D. G. Mills." Thereafter Newburger offered to return the said sample pieces that they had received, which was refused, and thereafter, on August 25th, they tendered the goods to the Saxonia Mills at their place of business, which tender was refused. [1] It was claimed on the part of the plaintiff that prior to the sending of the letter of July 20th the defendants had requested that no more goods be delivered on the order, and, although this was disputed, the learned judge at Trial Term considered that this might have been treated as an anticipatory breach of the contract on the part of the defendants, so as to excuse the plaintiff from further performance. It is to be noted that the evidence was, not that the defendants would refuse to receive any further shipments, but merely a request that the plaintiff should not ship, and therefore, to my mind, it could not possibly be treated as an anticipatory breach, and, furthermore, there was no such ground stated by the Saxonia Dress Goods Mills in its letter of July 20th. [2, 3] Under the terms of the contract Peierls, Buhler & Co., Inc., could only cancel the terms and credit and insist upon payment of cash. The contract did not give them or the Saxonia Dress Goods Mills the right, at their option, to cancel the contract. Therefore, when they elected to cancel the contract, the defendant had the right to tender back what he had received under it, if he was willing to acquiesce in the cancellation. For this reason, the motion that was made at the close of the case, that the court direct a verdict in favor of the defendants, should have been granted. The judgment and order should be reversed, with costs, and judgment directed for the defendants upon the merits. All concur. |