§ 364.

Trade marks.

L. 1921, ch. 353. said section, by any person other than said persons or corporations hav⚫ing a name, mark or device thereon of such owner, without such written consent, or the having by any junk dealer or dealers in second-hand articles, possession of any such article, named and described in said section, a description of the marks, names or devices, whereon shall have been so filed and published as aforesaid, without such written consent, shall, and is hereby declared to be presumptive evidence of the said unlawful use or purchase of and traffic in such freezers, cans, blocks, moulds, trays, bricks, pans, tanks, pails, kegs, tubs, refrigerators, boxes, spoons, cutlery, glass, china, chairs, tables or signs. (Amended by L. 1921, ch. 353, in effect April 30, 1921.)

§ 364. Search warrant to discover trade marked articles unlawfully used.

1. Whenever any person or corporation mentioned in section three hundred and sixty or his or its agent shall make oath before any magistrate that he or it has reason to believe, and does believe, that any of his or its bottles, boxes, siphons, tins, kegs, cans or can covers, a description of the names, marks or devices whereon has been so filed and published as aforesaid, are being unlawfully used or filled, or had, by any person or corporation manufacturing or selling soda, mineral or aerated waters, porter, ale, cider, ginger ale, milk, cream, small beer, lager beer, weiss beer, white beer, or other beverages or medicine, medical preparations, perfumery, oils, compounds or mixtures, or that any junk dealer or dealer in second-hand articles, vendor of bottles, or any other person or corporation has any such bottles, boxes, siphons, tins, kegs or cans or can covers, in his or its possesrion or secreted in any place, the said magistrate must thereupon issue a search warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession such bottles, boxes, siphons, tins, kegs, cans or can covers, may be found, and shall then inquire into the circumstances of such possession, and if such magistrate finds that such person has been guilty of a violation of subdivision one of section three hundred and sixty-two, he must impose the punishment herein prescribed, and he shall also award possession of the property taken upon such warrant to the owner thereof.

2. Whenever any person or corporation mentioned in section three hundred and sixty-one, or his or its agent, shall make oath before any magistrate, that he or it has reason to believe, and does believe, that any of his or its freezers, cans, blocks, moulds, trays, bricks, pans, tanks, pails, kegs, tubs, refrigerators, boxes, spoons, cutlery, glass, china, chairs, tables or signs, a description of the names, marks or devices whereon has been so filed and published as aforesaid, are being unlawfully used for similar or other purposes, or that any junk dealer or dealers in second-hand articles, or any other person or corporation, has any such article as named and described herein, in his or its possession, or secreted in any place, the said

magistrate must thereupon issue a search warrant to discover and obtain the same, and may also cause to be brought before him the person in whose possession such articles as named and described herein may be found, and shall then inquire into the circumstances of such possession, and if such magistrate finds that such person has been guilty of a violation of subdivision two of section three hundred and sixty-two, he must impose the punishment herein prescribed, and he shall also award possession of the property taken upon such warrant to the owner thereof. (Amended by L. 1921, ch. 353, in effect April 30, 1921.)

§ 367. Further provisions concerning trade-marks on articles of merchandise.

Manufacturer of taxicabs may enjoin use of symbol; when actual loss need not be proved; unfair acts.-Plaintiff, a manufacturer of taxicabs, marks them with a distinctive symbol which it has used for more than a year recently has registered the design as a trade mark under section 367 of the General Business Law. Many of plaintiff's cabs have been sold to purchasers in the city of New York where they are used for public hire. Defendant operates for hire in the city of New York a taxicab not manufactured by plaintiff but similarly marked. Plaintiff seeks to enjoin defendant from using the taxicab so marked. Defendant opposes the injunction, chiefly on the ground that there is no unfair competition as the plaintiff is the manufacturer and he, the defendant, an operator of a taxicab. Held, that where an injury to business, not measured in damages, is threatened by unfair acts, equity may afford relief by injunction; that actual loss need not be proved to have occurred if it is clearly threatened and that where the wrong is clear the defendant's motive and intent are immaterial. Motion for injunction granted. Checker Cab Manufacturing Co. v. Sweeney (1922), 119 Misc. 780, 197 N. Y. Supp. 284.

§ 370. Rate of interest.

Transaction not constituting loan of money, upon which alone usury can be predicated. Luzzatto v. Kaplan (1922), 201 App. Div. 841, 192 N. Y. Supp. 936.

§ 371. Usury forbidden.

Liability for acts of agents in charging usury.-A person intrusting an agent with money for investment is not affected by the acts of his agent in charging usury unless he had knowledge of the transaction or assented to it or received some benefit from it. A finding, therefore, charging the plaintiff with the usurious acts and knowledge of her agent, although innocent herself, is erroneous. St. John v. Fowler (1920), 229 N. Y. 270, 128 N. E. 199, affg. 183 App. Div. 698, 170 N. Y. Supp. 666.

Action to declare loan made by defendants usurious and void and to cancel deed and bill of sale given by third person as security for loan; plaintiffs were not parties to conveyances and cannot have them canceled; contract does not appear on face to be usurious; failure to allege facts showing usury makes pleading defective; equity action not maintainable in absence of allegation that remedy at law is inadequate.In an action to declare usurious and void a loan made by defendants to plaintiffs and to cancel a deed and bill of sale, it appeared that an agreement was made between the parties whereby the defendants were to pay the plaintiffs $6,000 and the plaintiffs were to have a third person execute the deed and bill of sale in

question as security, and that the plaintiffs would purchase the property so transferred at the end of a year for $8,550, at which time the defendants would surrender to the plaintiffs their business which the defendants were to conduct in the name of a corporation. Held, that the plaintiffs cannot maintain this suit in equity to cancel the deed and bill of sale, since they are not parties to the conveyances; that the contract does not appear to be usurious on its face and the failure to allege that there was an agreement to use the contract as a cloak for a usurious loan makes the complaint defective; that the failure of the plaintiff to allege that his remedy at law is inadequate likewise makes it impossible for him to maintain this action in equity. Kalnitzky v. Golden (1923), 205 App. Div. 45, 199 N. Y. Supp. 120.

§ 373. Usurious contracts void.

Where the consideration for a bond and mortgage was the subordination of a mechanic's lien, in the hands of the assignee the mortgage was not usurious, and having a valid inception in the hands of the assignee it was not usurious for plaintiff to buy it, and, in an action to foreclose it, the defense of usury cannot avail. Weiss v. Schildkraut (1921), 116 Misc. 285, 190 N. Y. Supp. 293.

General statute against usury inapplicable to "credit unions"; validity of contract: interest in excess of one per cent per month; discount; when "credit union" can recover amount actually advanced.-The legislature having provided for the creation of "credit unions" (Banking Law, § 450), a new kind of corporation, with power to make loans to its own members at rates not exceeding one per cent per month, without providing any express prohibition against or penalty for exacting a greater rate of interest than the corporation was empowered under the statute to exact, it must be held that the legislative intent was to make the general statute against the exaction of usury inapplicable to the contracts of a “credit union" and that the validity and effect of such contracts should be tested by the general rules which govern the making and enforcement of corporation contracts. The defendant C., one of the shareholders in the plaintiff, a duly incorporated "credit union," upon being told that it would loan him $2.500. he as principal and the other defendants as sureties signed a written instrument by which he agreed to pay to the order of plaintiff the sum of $2,500 in twenty-five installments of $100 per week. Upon the execution of the instrument plaintiff paid to C. the sum of $2,350. having deducted from the amount of the loan $150 as discount or interest paid in advance at the rate of twelve per cent per annum. After C. had paid four installments of $100 each he defaulted. In an action upon the written instrument to recover the unpaid balance the defendants pl leaded usury and the facts being undisputed a verdict was directed in their favor. Upon reversing the judgment entered on the verdict and ordering judgment in favor of the plaintiff for the sum of $1,950 with interest from the date of the commencement of the action, held, that the defendants having received consideration under a contract which contained a provision which they themselves were bound to know the corporation had no right to insert, should not be permitted to retain the consideration on the plea that the corporation had no power to make the contract or to say that it was illegal; but inasmuch as the corporation retained moneys from the face amount of the loan as a discount or as interest payable in advance, which it had no power to exact, the defendants could not be required to to plaintiff more than they received. Great Eastern Credit Union v. Cooper (1922), 120 Misc. 79, 197 N. Y. Supp. 785.

repay

Action upon check given by maker to pay another's note; maker may set up defense that note was usurious.-Plaintiff brought an action to recover upon a check given to him by defendant to pay notes given to plaintiff by defendant's

L. 1921, ch. 273.

Beds and mattresses.

§ 389-p.

brother. The trial court ruled that defendant was not entitled as a matter of law to set up the defense of usury as he was not a party to the notes. Held, error; that one who volunteers to pay another's note is not a stranger, but so far as the circumstances of payment go stands practically in the shoes of the maker, and is entitled to interpose the defense of usury. Levy v. Hallager (1922), 119 Misc. 695, 197 N. Y. Supp. 257.

Corporation may not plead usury. Securities Acceptance Corporation v. Kane Co. (1922), 119 Misc. 354, 196 N. Y. Supp. 519.

ARTICLE XXV-A.

SALE OF COAL, COKE AND CHARCOAL.

(Art. 25-a, §§ 383-389-a, repealed by L. 1922, ch. 48, in effect April 1, 1922.) Note.-Art. 25-a, is in substance incorporated in Farms and Markets Law (L. 1922, ch. 48), as part of art. 18 thereof.

ARTICLE-XXV-B.

(Schedule of sections added by L. 1920, ch. 590, and amended by L. 1921, ch. 273, in effect April 21, 1921.)

389-q.

389-r.

389-s.

389-t.

389-v.

Tagging "remade or renovated."

Tag, how made and attached.

Removing, defacing or altering tag prohibited.
Industrial commissioner to enforce article.
Complaints.

389-w. Violation a misdemeanor.

§ 389-p. Tagging when new; idem, "second hand."-No person shall sell, expose for sale, deliver or consign for sale or have in his possession with like intent;

(a) Any mattress, upholstered spring bed or metal bed spring which contains only new material, unless there is attached thereto a white tag signifying:

1. The name and address either of the manufacturer or of the vendor or of the successive vendors, and

2. A description of the filling used and a statement that all the material used is new; or

(b) Any mattress, upholstered spring bed or metal bed spring which contains any second hand material, unless there is attached thereto a yellow tag, bearing the words, "second hand," and specifying:

1. The name and address either of the manufacturer or vendor or successive vendors.

2. A description of the filling used, and

$$ 389-r-390.

Beds and mattresses.

L. 1921, ch. 273.

3. The date of sterilization of the material used and the name and address of the person, firm or corporation sterilizing it;

4. In the description of the material used upon any label or tag it shall be unlawful to use in the description of such material used as the filling or in the construction of any mattress, upholstered spring bed or metal bed spring any term or designation likely to mislead. (Added by L. 1920, ch. 590, and amended by L. 1921, ch. 273, in effect April 21, 1921.)

§ 389-r. Tag, how made and attached.-Whenever a tag is required by this article it shall be made of muslin, linen or other material of like durability, legibly printed, stamped or written on one side only, in the English language and in letters at least of eight point Gothic face type. The tag shall be attached to an upholstered spring bed or mattress by prominently and securely sewing it on the article labeled, and upon a metal bed spring by fastening same prominently and securely with a metal seal. No tag mentioned in this article shall be delivered by any manufacturer to any person unless the same be affixed or attached to an article as required herein. (Added by L. 1920, ch. 590, and amended by L. 1921, ch. 273, in effect April 21, 1921.)

§ 389-t. Industrial commissioner to enforce article.-Every place where mattresses, upholstered spring beds or metal bed springs are made, remade or renovated, or materials therefor are prepared or sterilized, or where such articles or materials are sold, exposed for sale, delivered or redelivered or consigned for sale, or held in possession with like intent, shall be subject to the supervision and inspection of the industrial commissioner who shall have power to supervise and inspect the manufacture and sale of the articles covered by this article, and seize and hold for evidence at a trial for the violation of this article, any mattress, upholstered spring bed or metal bed spring which is sold, exposed for sale, delivered, redelivered or consigned for sale, or held in possession with like intent, and to prosecute all violations of this article. (Added by L. 1920, ch. 590, and amended by L. 1921, ch. 273, in effect April 21, 1921.)

§ 389-v. Complaints.-Any person who has reason to believe that this article has been or is being violated may present the facts to the industrial commissioner and it shall be the duty of the commisisoner to investigate the same and to institute a prosecution if he finds reasonable cause to believe that there has been such violation. Any individual may institute proceedings to enforce this article and punish any violation thereof. (Added by L. 1920, ch. 590, and amended by L. 1921, ch. 273, in effect April 21, 1921.)

§ 390. Marking canned goods.-(Repealed by L. 1922, ch. 48, in effect April 1, 1922.)