Page:The Green Bag (1889–1914), Volume 22.pdf/151

 Latest Important Cases a nuisance or unnecessarily infringe upon the rights of others. It was, therefore, evidently the legislative intent in the enactment of this provision that the commissioners should have supervision over the issuing of long time bonds to the extent of determining whether they were issued under and in con formity with the provisions of the statute for the purposes mentioned therein, or whether they were issued for the discharge of the actual and not the ﬁctitious debts of the company, or whether they were issued for the refunding of its actual obligations and not for the inﬂation of its stocks or bonds. Beyond this it appears to us that the power of the commissioners does not extend, unless it may pertain to the power to determine whether an obligation should be cla:siﬁed as operating expenses and as to whether such expenses should be paid by obligations run ning beyond a year. We therefore conclude that as to the Hudson Valley securities, so called, the application of the relator com pany should have been granted." Untair Competition. Equity will Enjoin Use of Some Title for a Rival Dramatic Production-Exclusive Rights Connected with though not Based on Copyright. N. Y. A cartoonist designed a series of HBuster Brown" sketches, which he sold to the New

York Herald, reserving the dramatic rights. They were copyrighted by the Herald, and the artist dramatized them and produced a play under the title of "Buster Brown." Under a license from the Herald, other persons produced a rival dramatization under the same name. The cartoonist sued the proprietors of the second play, but was not allowed to recover. The case came before the Appellate Division of the New York Supreme Court, which reversed the judgment of the court below and ordered a new trial. Outcault v. Lamar and Weigel, N. Y. Law jour. Dec. 24. The Court (Laughlin, 1.), said :—

"The holder of a copyright will undoubtedly be protected in the copyright name, as well as in the literary production, where there is an infringement in whole or in part of the literary production which is the subject of the copyright, but the name alone is not protected by the copyright‘ (Drone on Copy rights, p. 145 and note; Corbett v. Purdy, 80 Fed. Rep. 901; Dcmnelley v. l'vers, 18 Fed. Rep. 592). The theory of the complaint is

137

that the cartoonist invented this title and these names, and that he and his associates were the ﬁrst to use them in connection with a public play, and that a court of equity should protect them in that use upon the principles upon which trade names and trade marks are protected by the courts, notwith standing the fact that they are used in con nection with a copyright or a patent (Monroe v. Tousey, 129 N. Y. 38;

Waterman v. Ship

man, 130 N. Y. 301; Potter v. McPherson, 31 Hun. 559). It seems quite clear, there fore, that the complaint presented a case of which the courts of this state have jurisdiction." See Copyright. Wills and Administration. Probate of Seaman's Nimcupative Will—Necessary Con ditions to be Fulﬁlled. N. Y. An interesting instance of the probate of an oral or nuncupative will occurred in the Surrogate's Court of King's county, New York, in December Matter of O'Connor (re ported in N. Y. Law four. Dec. 27, also editorially discussed). The testator was the chief engineer of a steamship, who fearing the fatal outcome of one of the attacks inci dental to a chronic malady from which he suffered, expressed to the master and ﬁrst oﬂicer the wish that all his property might belong to his daughter, whom he named. The Court (Ketcham, 8.), remarking that this was the ﬁrst case in the history of the court of an application for the probate of a nuncupative will, and citing the few modern cases on the subject, declared that in spite of the infrequency of the proceeding the rules are plain. The opinion is summarized in the headnotc as follows:

“A mariner at sea or a soldier while in actual military service may make an oral or nuncupative will if he possess testamentary capacity and intent and is free from restraint and shall utter the words constituting the will with suﬂicient explicitness and intelligi bility to permit a ﬁnding of its purport and scope. The same must be witnessed and proved by at least two witnesses, and it is not necessary that such will should be made either in the last sickness of the testator or in prospect of his death. “A description of the will in the petition for its probate is sufﬁcient without alleging the exact words and phrases intended to be proved as the will of decedent.”