It seems to me that, inasmuch as the original grant gave plaintiff the absolute right to the additional 15-year term, there is no reason for the complying with the provisions of the charter referred to in this matter. The plaintiff having exercised its option, the only question to be determined is the compensation to be paid. The term "renewal," as used in section 74, I think refers to a renewal or extension beyond the terms of the original grant.

[2] With the propositions, as found in the court's fourth conclusion of law, I am unable to agree. Here we meet the vital issue in the case. The proceedings which led up to this meeting have been referred to in the statement of facts. The respondent contends that this resolution. in terms granted to it the rights set forth in the contract before the board of estimate and apportionment, at that time, and fixed the revaluation because the resolution stated that the rates and charges were to be as specified and set forth in said contract.

I fail to see the force of this argument. It seems to me plain that there was no determination as to rates and valuations made by any resolution passed on this date. The resolution, after certain preambles, continues:

"Now, therefore, be it resolved, that the following form of resolution for the consent or right applied for by the Manhattan Bridge Three-Cent Line, containing the following proposed form of contract, for the grant of such right be hereby introduced and entered in the minutes of this board as follows, to wit."

Then follows the proposed form of resolution and contract. The language claimed by respondent to effectuate a determination as to rates and value is contained in this proposed form of resolution, and nowhere else. The resolution further states that these preambles and resolutions, after the same shall be entered in the minutes of this board, shall be published in full for at least 15 days prior to Friday, September 30, 1921, in the City Record, together with the following

notice:

"Notice is hereby given that the board of estimate and apportionment, before authorizing any contract for the grant of the consent or right applied for by the Manhattan Bridge Three-Cent Line and fully set forth and described in the foregoing form of proposed contract for the grant of said consent or right, and before adopting any resolution authorizing such contract, will, at a meeting of said board to be held in room 16, City Hall, borough of Manhattan, city of New York, on Friday, September 30, 1921, at 10:30 a. m., hold a public hearing thereon, at which citizens shall be entitled to appear and be heard."

This seems to me to be entirely plain, yet the court below has found that this form of resolution, inserted for purposes of publication and with the express declaration that, before any contract would be authorized or consent given, a hearing would be held on September 30, 1921, constituted an agreement between the parties as to revaluation. The resolution, in my opinion, will not bear such a construction.

[3] Nor do I think the sixth conclusion of law is justified. The contract of July 10, 1912, after providing for appraisers in case the parties fail to agree, and specifying when they shall be chosen, and

(198 N.Y.S.)

that their report shall be filed within three months after they are chosen, continues:

"If in any case the annual rate shall not be fixed prior to the termination of the original term of this contract, then the company shall pay the annual rate theretofore prevailing until the new rate shall be determined, and shall then make up to the city the amount of any excess of the annual rate then determined over the previous annual rate.”

Here we have an express provision in the contract as to the rate to be paid if for any reason the annual rate shall not be fixed within the time specified.

[4] Failure on the part of the city to participate does not result in the abrogation of the provision for arbitration, but by the terms of the agreement the company is required to continue at the old rate until a new and reasonable rate is fixed. If the city unduly delays action, it may be compelled by appropriate proceedings. I therefore advise that the judgment be modified by reversing the conclusions of law as contained in the decision numbered 4, 5, 6 and 9, and finding defendant's request to find as conclusions of law numbered II and V, and making the following new finding as a conclusion of law: That the plaintiff, Manhattan Bridge Three-Cent Line, is obligated to pay to the defendant, the city of New York, during the term commencing July 10, 1922, and expiring July 10, 1937, an annual sum which shall be equal to five (5) per cent. of its gross annual receipts, but which sum shall not be less than seven thousand dollars ($7,000), said payments to be made at the time, in the manner, and subject to the conditions specified and named in said contract of July 10, 1912, until a new rate shall be determined in the manner provided in said contract.

As thus modined, the judgment should be affirmed, without costs. All concur.

(204 App. Div. 407)

LOWELL LAMB & CO., Inc., v. HERSKOVITS et al.

(Supreme Court, Appellate Division, First Department. February 9, 1923.)

1. Trade-marks and trade-names and unfair competition have trade-mark indicating result of his work.

25-Employee may

An employee may have a symbol of his own and use it, as designating the result of his work or in attracting business for the mutual benefit of himself and his employer.

2. Trade-marks and trade-names and unfair competition 37-Emblem associated with personal skill of owner held not to pass by assignment in bankruptcy.

An emblem associated with the personal skill and knowledge of owner does not pass by an assignment in bankruptcy.

3. Trade-marks and trade-names and unfair competition 53-Allowing others to use emblem associated with owner's personal skill deceptive to public and injurious to owner.

Where an emblem is associated with the personal skill and knowledge of its owner, to permit others to use the emblem would be deceptive to public and injurious to owner.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

56

198 NEW YORK SUPPLEMENT

(Sup. Ct.

4. Trade-marks and trade-names and unfair competition 88-Employer has right to protect emblem associated with personal skill of its employee.

Where an emblem is associated with the personal skill and knowledge of an employee, employer has the right to take advantage of an assignment to it and can prevent others from using this emblem.

Appeal from Supreme Court, New York County.

Action by Lowell Lamb & Co., Inc., against Albert Herskovits and Max Herskovits, copartners doing business under the firm name and style of Albert Herskovits & Son. From a judgment entered on a decision dismissing the complaint on the merits, and adjudging that defendant recover from plaintiff $110.05 costs, plaintiff appeals. Reversed, and judgment directed for plaintiff.

Argued before CLARKE, P. J., and DOWLING, PAGE, MERRELL, and FINCH, JJ.

Joseph Joffe, of New York City (Louis Joffe, of New York City, on the brief), for appellant.

Harry J. Moskowitz, of New York City (Isidor E. Schlesinger, of New York City, of counsel), for respondents.

FINCH, J. Lowell Lamb adopted, and for many years has used, the walking animal sign in conjunction with the words, "We are going to Lowell Lamb to be assorted, where our value will be appreciated." This sign was used by Lowell Lamb while in business for himself individually, and also while doing business as, or connected with, the Trappers' & Shippers' Company. The same sign was also used when Lowell Lamb was in the employ of the defendant Herskovits. On the reverse side of the sign was printed the address to which the furs were to be sent, which varied according to where Lowell Lamb was then located. Lowell Lamb claims particular ability in the grading and sorting of furs, and it is this personal quality that is associated with the sign or emblem, the use of which is calculated to induce in the minds of trappers a belief that the furs, wherever sent in response to the advertisement, will be sorted and graded by Lowell Lamb.

[1] The Special Term held that Lowell Lamb's exclusive right to the use of the emblem was destroyed by the fact that he had used it in advertising the defendants' business. The record, however, does not sustain such a finding. At no time did the defendants' name appear on the sign or emblem, except on the reverse side thereof, as the address to which the furs were to be sent to be graded by Lowell Lamb. It is well settled that an employee may have a trade-mark or symbol of his own, and use the same while so employed, as designating the origin of the result of his work, or in attracting business for the mutual benefit of himself and his employer. Strasser v. Moonelis, 55 N. Y. Super. Ct. 197, affirmed 108 N. Y. 611, 15 N. E. 730; Fisher v. Star Co., 231 N. Y. 414, 132 N. E. 133, 19 A. L. R. 937; Hetterman Bro. v. Powers, 102 Ky. 133, 43 S. W. 180, 39 L. R. A. 211, 80 Am. St. Rep. 348.

[2] As shown above, the pecuniary value of the emblem is associated with the personal skill or knowledge of Lowell Lamb, and

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(198 N.Y.S.)

hence the right to use the emblem did not pass by the assignment in bankruptcy in 1911. Cutter v. Gudebrod Bros. Co., 44 App. Div. 605, 61 N. Y. Supp. 225, affirmed 168 N. Y. 512, 61 N. E. 887.

[3] For the same reason, to permit the use of the emblem by the defendants would be calculated to deceive the public as well as injure the plaintiff.

[4] It appears that Lowell Lamb is the president and general manager of the plaintiff; and while he is in its employ, the latter has the right to take advantage of the assignment to it of the right to use and. protect this emblem. Wheeler Syndicate v. Star Co. (Sup.) 160 N. Y. Supp. 693, affirmed 188 App. Div. 964, 176 N. Y. Supp. 925, affirmed 231 N. Y. 607, 132 N. E. 907; Cutter v. Gudebrod Bros. Co., supra.

The judgment should be reversed, with costs, and judgment directed for the plaintiff, with costs. Settle order containing findings of fact and conclusions of law upon notice. All concur.

(Supreme Court, Appellate Division, Second Department. January 25, 1923.) 1. Arbitration and award 57—Arbitrators must not go beyond limits of ques

tions submitted.

Arbitrators must not go beyond the limits of the questions submitted to them, for parties must not be deprived of their constitutional rights to redress in the courts, in the absence of an agreement to forego these rights.

2. Arbitration and award 20-Specifically mentioning certain subjects as matters to be submitted held not to exclude other subjects.

The fact that certain subjects were specifically mentioned as matters to be submitted to arbitration does not justify the conclusion that all other subjects were intended to be excluded.

3. Arbitration and award 18-Contract to submit to arbitration to be liberally construed.

A contract to submit to arbitration should be reasonably and liberally construed, with a view to accomplishing a complete and final settlement of all existing controversies.

4. Arbitration and award 20-Agreement held to authorize arbitrators to determine amount due from owner to contractor.

Under an agreement providing that, if owner and contractor fail to agree on matters of payment, allowance, or loss referred to in stated provisions of the contract, the matter was to be referred to a board of arbitration held to authorize arbitrators to determine the amount due from owner to contractor.

Appeal from Supreme Court, Westchester County.

In the matter of the arbitration between Michael F. Priore, contractor, and Arthur F. Schermerhorn, owner. From a judgment in favor of the contractor against the owner on an award made by arbitrators, as modified by the court, for the sum of $43,066.13, subject to owner's right to retain $15,000 to indemnify him against certain liens and claims, and also from an order denying the owner's motion

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Judgment modified on reargument App. Div. -- 198 N. Y. Supp. 943.

to confirm the report of the arbitrators, the owner appeals. Order and judgment modified, and, as modified, unanimously affirmed.

Argued before KELLY, P. J., and RICH, JAYCOX, MANNING, and KAPPER, JJ.

George H. Porter, of New York City (George W. Burleigh, of New York City, on the brief), for appellant.

Arleigh Pelham, of New York City, for respondent.

KELLY, P. J. The record on this appeal is not in very satisfactory shape. There was no formal submission of the matter to arbitration as provided in former Code Civ. Proc. § 2366, made applicable by Arbitration Law, § 8, amended by Laws 1921, c. 14, § 2, but the parties, owner and contractor, respectively appointed the arbitrators, who in turn selected the umpire, and the arbitration proceeded, based upon the provisions of article XII of the contract. The plain meaning of that instrument is that, in case of disagreement between the owner and contractor in relation to matters of payment, the dispute should be referred to arbitrators. The matters of payment referred to are naturally the payments due from the owner to the contractor, and that was the matter which was submitted to the arbitrators. The contractor had commenced an action against the owner to recover damages for breach of the contract, and, while the pleadings in that action are not printed, it is evident, from the opening statement of the counsel for the contractor to the arbitrators, "The complaint, of course, as Mr. Porter suggested, is a statement of the claim," that the entire demand of the contractor was submitted. If the owner had any defense or counterclaim against the contractor for defective work, or for overcharge under the provision for 10 per cent. profit, this was the time and place to present it.

[1] The suggestion that the arbitrators should take up a part only of the dispute, and leave the parties to a lawsuit over the balance, is opposed to the obvious intention of the parties evidenced in the contract and to the very principle of arbitration. It was to avoid litigation that arbitration was agreed upon. It is true, as claimed by appellant, that arbitrators must not go beyond the limit of the questions submitted to them, and that parties must not be deprived of their constitutional rights to redress in the courts, in the absence of agreement to forego such rights. Dodds v. Hakes, 114 N. Y. 260, 21 N. E. 398; Matter of General Silk Importing Co., Inc., 200 App. Div. 786, 194 N. Y. Supp. 15, affirmed 234 N. Y. 513, 138 N. E. 427. But in the case at bar the parties agreed to submit the dispute as to the amount due to arbitration.

[2, 3] The fact that certain subjects were specifically mentioned as matters to be submitted does not justify the conclusion that all others were intended to be excluded. The contract should receive a reasonable construction, with a view to accomplish the purpose obviously intended by the parties. Locke v. Filley, 14 Hun, 139. Such an agreement for arbitration is to be given effect, in the most liberal sense, as accomplishing a complete and final settlement of all existing controversies. Matter of Burke, 191 N. Y. 437, 84 N. E. 405;