Nidig agt. National City Bank of Brooklyn. extract money from the bank as agent of the maker of the note, not to put money in the bank as agent of the defendant, or to the credit of the defendant. There is nothing in the nature of the transaction which should render the defendant guarantor of the solvency of the Bank of Lowville. It was recently held by this court in the case of The People agt. The Merchants and Mechanics' Bank of Troy, decided October, 1879, that by sending a check through the mail to the bank on which it was drawn, the sender did not constitute that bank its agent to receive the proceeds; and as before said a note payable at a bank where the maker keeps his account is equivalent to a check drawn by him upon that bank, except that in the case of a note the failure to present for payment does not discharge the maker. But as far as the question now under consideration is concerned, the effect is the same. bank on which the note is drawn has nothing to do but to pay the note if in funds, and if not refuse to pay. If it pays, it does so in behalf of the maker and no relation is created between it and one who presents it by mail different from that which would exist if presented through any other agency, unless accompanied by a request to do some further act in behalf of the sender, beyond complying with its duty to its own customer. The The case is also defective in respect to the question of damages. It is by no means clear that the maker of the note is discharged. Where a note is payable at a bank an entire failure to present it for payment does not discharge the maker (Walcott agt. Van Santvoord, 17 Johns., 248; Green agt. Goings, 7 Barb., 652; Caldwell agt. Cassidy, 8 Cow., 271). If the maker has not sufficient funds in the bank, the omission to present it is of no consequence. If he has funds there, he can plead it by way of tender and is relieved from liability only for interest and costs, and even if the bank fails with the funds in its hands this is no defense to the note (Ruggles agt. Patten, 8 Mass., 480; Fenton agt. Goudry, 13 East, 473; Turner agt. Haydon, 4 Barn. & Cress., 1). The bank is, in Nidig agt. National City Bank of Brooklyn. such cases, regarded simply as the agent or depository of the note or acceptor of the bill, and he alone suffers by its failure, and his promise to pay is not discharged. In this respect only a note or bill payable at bank differs from a check. Therefore, if there had been no presentment whatever, and the bank had failed with sufficient funds of the maker in its hands to pay the note, the maker was still liable. The attempt of the bank to pay the note by a draft which was not good was no payment, and on notice of the non-payment of the draft the plaintiff could have tendered it back and demanded his note, or could have sued upon the note, even without giving indemnity, as the note was in the possession of the maker, having been returned to him by the bank. The plaintiff could not even set up, in bar of costs and interest, that he had the money in the bank; for his account was short, and was not made up until after the bank had failed. Neither was the maker misled by anything that had been done, for the bank failed on the same day that he received back his note by mail, and he was at a distance and could have done nothing if he had known that the note was not paid. There was no evidence that the maker was not solvent, or that the plaintiff had sustained any damage. On both grounds we think the order appealed from should be reversed and the judgment of nonsuit affirmed. FOLGER and ANDREWS, JJ., concur. CHURCH, Ch. J., concurs on question of damages. MILLER, EARL and DANFORTH, dissent. JJ., NOTE. A motion for a reargument was subsequently made and denied. [REP. Royal Baking Powder Company agt. Sherrill et al. SUPREME COURT. THE ROYAL BAKING POWDER COMPANY agt. GEORGE SHERRILL et al. Trade-mark-when a word becomes property and its use as a trade-mark will be protected. Where the case clearly shows that the plaintiffs and those through whom they claim were the first to use the word "royal" as a portion of their trade-mark in connection with flavoring extracts, and have continued its use for a considerable number of years: Held, that, such appropriation of this word, although it is a common one, to distinguish an article produced by them, and although it is only applied to one grade of the article they manufacture, but by which distinctive appellation it has come to be known, dealt in, and used, gives to the plaintiffs the right to its exclusive use in respect to such production and such right will be protected. Special Term, January, 1880. James W. Gerard, for plaintiff. C. M. Marsh, for defendant. VAN VORST, J.-The case clearly shows that the plaintiffs and those through whom they claim were the first to use the word "royal" as a portion of their trade-mark in connection with flavoring extracts; and that its use has been continued by them ever since the year 1868. Such appropriation of this word, although it is a common one, to distinguish an article produced by them, and although it is only applied to one grade of the article they manufacture, but by which distinctive appellation it has come to be known, dealt in, and used, gives to the plaintiff the right to its exclusive use in respect to such production. If the defendant produces a kindred article he should desigVOL. LIX 3 Royal Baking Powder Company agt. Sherrill et al. nate it by some other distinctive word or character, and not appropriate to himself a term by which the plaintiff's article is peculiarly known and distinguished. Natural justice suggests such course. The defendants' article is put up in packages quite similar to those of the plaintiff, and it can be readily understood that the defendants' use of the word "royal," although followed, as it is, by the term "standard," is calculated to mislead purchasers who call for the "royal" extract. The word "royal" in regard to an article produced by one manufacturer, when a similar article is also produced by others, may get a reputation, and go into use in connection with that word. In such case the word itself becomes property, to the extent above indicated, to the one who first distinctly appropriates it to his use. Such seems to be the case with the plaintiff's article in connection with the word "royal." Plaintiffs ought not to lose the advantage of their appropriation of this word through the action of others whether designed or unintentional. The fact that the defendants had used the word "royal” in connection with a grade of mustard made by them, gives no right to its use to designate a flavoring extract after the plaintiff had first distinctly adopted the use of the word for such other production. Prior in time, prior in right. There should be judgment in favor of plaintiff, restraining the use by the defendants of the word "royal," singly or as qualifying any other words to designate flavoring extracts. The People ex rel. Beattie agt. McAdam. SUPREME COURT. THE PEOPLE ex rel. MARY A. BEATTIE agt. DAVID McAdam, justice, &c. Summary proceedings for non-payment of rent· when may be maintained by lessor. The acceptance of a chattel mortgage postponing the payment of past due installments of rent upon a lease, and securing the payment of the subsequent installments of rent as they mature, does not prevent the lessor from maintaining summary or other proceedings founded on a default in the payment of the subsequently accrued installments. Special Term, May, 1880. THE relator was dispossessed from the premises No. 7 Washington place, by Mr. justice MCADAM, for the non-payment of certain installments of rent secured by a chattel mortgage. The justice decided the rule to be as stated in the head-note. The adjudication was brought into the supreme court for review upon certiorari. The respondent moved to quash the writ. Ormsby & Fitzpatrick, for relator. Ira A. Warren, for respondent. BEACH, J.-The proceedings were taken on account of rent unpaid from January 1 to April 1, 1880. They were not based upon the sum accrued prior to January one. That was specifically secured by the chattel mortgage and its payment deferred until 1881. All reference to the rent, mentioned here, in the mortgage is as follows: The party of the first part shall well and truly pay "such other or further sum or sums as may remain due and unpaid for the rent of premises * * from January 1, 1880, to May 1, 1880," &c., &c. * |