for the coal, and this action was brought. Plaintiffs had judgment, from which an appeal was taken.

The contract between the parties was to deliver the coal upon the Gilbert switch, and until such delivery was made there rested upon the defendant no liability to receive or pay. Iron-Works v. Railroad Co., 62 N. Y. 272. The delivery upon the Hasselback switch was not a delivery to defendant, and created no liability upon his part. He had the right to insist upon the delivery at the place where he contracted for. It is claimed that this was done, and, in consequence thereof, that the defendant became obligated to pay. This presents the question to be decided. When the first three car-loads of coal were ordered, no time was agreed upon for delivery; and the same is true of the renewed order of October 19th. The law therefore required that such delivery should be made within a reasonable time; and what constitutes a reasonable time must be determined with respect to the character, circumstances, and surroundings of each particular case. Terwilliger v. Knapp, 2 E. D. Smith, 86; Jones v. Fowler, 1 Sweeney, 5; Cocker v. Manufacturing Co., 3 Sum. 530. The last order was given on the 19th of October, when plaintiffs wrote that they had ordered two car-loads onto defendant's switch that day, and that they would put in another in a couple of days. The delivery was made by the Erie Railway. The record does not show when the order to the railroad was given for the two car loads last mentioned, but they were not in fact delivered upon the Gilbert switch until the 8th or 9th of November. The order for the third car was not given by plaintiffs until October 26th. About two weeks thereafter plaintiffs saw the defendant, and he then informed them that the third car had not arrived. The plaintiffs, however, did nothing more to effect the delivery of this car of coal to the Gilbert switch. The plaintiff Burns then knew that the order had been given, and that the coal should at that time have been upon the Gilbert switch. Yet with such knowledge, and notice from the defendant, he testifies that he did nothing to secure its delivery. At this time the defendant was ready to take the coal, and told plaintiff to send it along. No attempt, however, to deliver was made, so far as the record shows. On November 28th, defendant's son notified plaintiffs that the coal was still undelivered, and he testifies that he then notified the plaintiffs that his father would not take the coal. This testimony, however, is denied by plaintiffs, but it does appear that they had some communication with respect to it; for Palen testifies that he had frequent telephone communications with defendant's place, the last one upon November 30th, and on that day he notified defendant in writing, stating that he should hold him "responsible for the car number 35,834. The Erie Railway has placed it for you on the Gilbert spur, and will dump it on the ground." I think the necessary inference which arises from this notice, when coupled with all the testimony, is that plaintiffs then had notice that defendants would not receive the car; else there was no necessity for the notice. While the plaintiffs state that the car was then upon the Gilbert spur, such was not the fact, nor was it placed there until two days after. It may be that the plaintiffs supposed the car had been delivered, and that the fault was with the railway, but that did not excuse them from performance. Jones v. Fowler, supra. It is suggested that defendant knew that the coal would not be delivered under two or three weeks after the order, and that consequently the delivery was within the contemplated time. This might be true as to the original order, but here more than twice the longest time had elapsed. I do not think it fair to assume that such time was within the contemplation of the plaintiffs, or of the defendant, when they had the subsequent conversation, and defendant notified them that the coal was not then delivered. Defendant had the right then to assume that the coal would be delivered without delay, as the order had been given on October 19th. It appears that the defendant was manufacturing brick, and used the coal for burning in his kiln. The plaintiffs were aware of this.

Defendant testifies that the season for burning brick had closed when the coal was finally delivered. Under all the circumstances, 1 think the coal was not delivered within a reasonable time after the order, and that the defendant was not bound to receive and pay for it. Such conclusion would lead to a reversal of the judgment.

HARNETT v. WESTCOTT.

(Superior Court of New York City, General Term. June 20, 1889.)

1. PRACTICE IN CIVIL CASES-SERVICE OF PAPERS-ATTORNEY'S ADDRESS.

Under court rule No. 2, requiring papers served or filed in an action to be indorsed with the name and address of the attorney, service of a copy of a judgment, and notice of entry thereof, written or printed on different sheets of paper, but securely attached together, with such indorsement on one sheet, is sufficient.

2. APPEAL-REVIEW-DISCRETION OF TRIAL COURT.

When an appeal from a judgment, and an order denying a new trial, is dismissed as to the judgment only, for not being taken in time, such dismissal is not neces sarily followed by the reversal of an order staying proceedings on the judgment pending the appeal, the trial judge having ordered such stay, in the exercise of his discretion, to prevent threatened proceedings to enforce such judgment.

Appeal from jury term; P. H. DUGRO, Judge.

Action by Richard V. Harnett against Robert E. Westcott, as president of Westcott's Express Company, to recover the value of a trunk and its contents. Verdict and judgment for plaintiff for $690, from which judgment, and an order denying a motion for a new trial, defendant appealed.

Argued before SEDGWICK, C. J., and FREEDMAN and TRUAX, JJ.
E. Luther Hamilton, for appellant. Ira D. Warren, for respondent.

FREEDMAN, J. This case comes before the court (1) on a motion made by the plaintiff to dismiss defendant's appeal from the judgment on the ground that, at the time of the service of the notice of appeal, the defendant's time to appeal from the judgment had expired; and (2) on plaintiff's appeal from an order staying all proceedings to enforce the judgment until after the determination of defendant's appeal, which was from the judgment and an order denying defendant's motion for a new trial.

The plaintiff's right to have defendant's appeal from the judgment dismissed on the ground that it was not taken in time depends upon the suthiciency of the notice of entry of judgment which was served. Section 1351 of the Code of Civil Procedure prescribes that an appeal to the general term must be taken within 30 days after service, upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof. The issues having been tried at a jury term, and a verdict having been rendered for the plaintiff, the appropriate judgment thereon was entered March 24, 1888, and on the same day a copy of such judgment was duly served on defendant's attorney personally. The copy judgment so served filled one side of a sheet of white paper; and securely attached to the back of such sheet was another sheet, of colored paper, of the same size. The outside of the colored sheet contained, at the top thereof, the following notice, viz: "Take notice that the within is a copy of a judgment this day duly made in this action, and entered in the office of the clerk of this court. New York, March 24, 1888. Yours, etc., IRA D. WARREN, Plaintiff's Attorney. To E. Luther Hamilton, Esq., Defendant's Attorney." And, as folded up and served with the copy of the judgment, the colored sheet further contained on its outside, and in a plain and conspicuous manner, the following indorsement, viz.: "NEW YORK SUPERIOR COURT. Richard V. Harnett against Robert E. Westcott, as President of Westcott's Express Company. Copy. Judgment and notice of entry. IRA D. WARREN, Attorney for Plaintiff, No. 170 Broadway, New York City, N. Y." Under precisely the same indorsement, contained on a duplicate copy, the defendant's attorney gave the following

admission, viz.: "Due and timely service of a copy of the within judgment is hereby admitted. Dated New York, March 24, 1888. E. LUTHER HAMILTON, Attorney for Defendant." Upon these facts it is clear that if the notice of entry of judgment so served, with a copy of the judgment, was a sufficient notice, the defendant's time to appeal from the judgment expired April 23d, and the service of the notice of appeal on May 4th was too late, so far as the judgment is concerned. The defendant insists, however, that the notice of entry of judgment was insufficient, because it did not contain the office and post-office address of plaintiff's attorney, as required by rule 2 of the rules of the courts; and upon this point he cites Kelly v. Sheehan, 76 N. Y. 325; Kilmer v. Hathorn, 78 N. Y. 228; Fortsmann v. Shulting, 107 N. Y. 644, 14 N. E. Rep. 190. An examination of these cases shows that in every one of them the papers served, taken as a whole, nowhere contained the address of the attorney for the prevailing party. On the other hand, it has been distinctly held in Falker v. Railway Co., 100 N. Y. 86, 2 N. E. Rep. 628, and in People v. Keator, 101 N. Y. 610, 3 N. E. Rep. 903, that the notice of entry of the judgment or order may be indorsed upon the copy judgment or order served therewith; and that if the papers so served, taken as a whole, contain an indorsement showing the name and address of the attorney of the prevailing party as prescribed by the rule, it is sufficient, because the rule does not require that these matters should be stated more than once upon the same paper or set of papers. Under these decisions, the notice of entry of judgment which was served in the case at bar was sufficient, and consequently the service by defendant, on May 4th, of a notice of appeal from the judgment, was too late. The motion to dismiss the appeal from the judgment must therefore be granted.

This, however, does not necessarily call for a reversal of the order granting the stay. The order denying defendants' motion for a new trial was entered April 9, 1888, and the notice of appeal, although ineffectual as to the judgment, was good as to the order. The notice of appeal, and the copy undertaking served therewith, for the purpose of effectuating a stay, having been returned with a notice which claimed, in effect, that they had not been served in time for any purpose, and the plaintiff having threatened to enforce the judgment, the defendant had a right to apply by motion for a stay. A case was thus made out for the exercise of the discretion of the learned judge below, and upon all the facts disclosed it cannot be maintained that such discretion was improperly exercised.

For the foregoing reasons I am of the opinion that plaintiff's motion to dismiss defendant's appeal should be granted, in so far as said appeal relates to the judgment; that the order granting a stay should be affirmed, but its operation limited to the appeal from the order denying motion for a new trial; and that neither party should have costs against the other.

THAU . BANKERS' & MERCHANTS' TEL. Co.

(Superior Court of New York City, General Term. May 7, 1888.) RECEIVERS APPOINTMENT BY SUPERIOR COURT-FORMER ORDER OF SUPREME COURT. Where the order of the New York superior court appointing a receiver provides that nothing therein contained shall affect the right of any receiver theretofore appointed over any property of defendant to act in accordance with the powers and duties conferred upon him, does not conflict with a previous order of the supreme court appointing a receiver of defendant's property.

Appeal from special term; DUGRO, Justice.

Appeal by defendant, the Bankers' & Merchants' Telegraph Company, from an order appointing a receiver of its property.

Robert H. Griffin, (Robert G. Ingersoll, of counsel,) for appellant. Robert 8. Hudspeth, (Benjamin Patterson, of counsel,) for respondent.

O'GORMAN, J. On December 3, 1885, the plaintiff in this action recovered a judgment in this court against the defendant for the sum of $2,511.82, and that judgment was duly filed and docketed on that day. A receiver of the property of defendant corporation having been duly appointed by the supreme court, a motion was made by the plaintiff here in that court for permission to issue execution on his said judgment against the property of the corporation, for the purpose, as stated in his affidavit, used on the motion, of enabling the plaintiff to take proceedings for sequestration of the property of the corporation under the authority of section 1784 et seq. of the Code of Civil Procedure. On May 27, 1887, an order was made by the supreme court in and for the county of New York granting such permission, and execution was thereupon issued, and returned unsatisfied. In June, 1887, the present suit was brought by the plaintiff, in which he prays for sequestration of the corporate property, and for the appointment of a receiver, with the usual powers and obligations, to take possession of the property, and apply the proceeds to the benefit of all the creditors as should be equitable. On January 3, 1888, an order was made in this action by this court at special term, on motion of the plaintiff herein, for the appointment of a receiver in this action, in which order it was, among other things, provided "that nothing therein contained would affect the right and power of any receiver theretofore appointed over any property of the defendant corporation to act in the performance and accordance with the powers and duties conferred upon him by the order appointing him, pursuant to law." From this order the defendant company now appeals for various reasons, prominent among which is that the appointment of such receiver would create a conflict with the supreme

court.

I do not think that there is any just reason for such an apprehension. The provision in the order above set forth would render such conflict impossible, and there is no evidence that any step has been taken or contemplated by the receiver appointed under that order inconsistent with that provision. The appointment of the receiver in this action was within the judicial discretion of the court, on the facts placed before it on the motion, and I see no reason to doubt that that discretion was not in this case exercised properly and for good cause. The other reasons for reversing this order, urged on behalf of the defendant, seem to me without merit. In the order, however, appointing the receiver, some clauses occur which seem to be inconsistent with the provision therein to which I have above referred, and which should be stricken out, amended, or altered. The phrase "of the said defendant," in folio 10 of the papers on appeal, should be changed to read "owned by the said defendant;" and after the words "the Bankers' & Merchants' Telegraph Company," in the same folio, should be added, "on the 21st day of October, 1887, or to which it was entitled on that day." The words following the above phrase in folio 10, beginning "not incumbered," etc., down to and including the words "one thousand dollars each, together with interest thereon," near the end of folio 11, should be stricken out. In folio 12, at the beginning, after the word "all,” add, “or any part of aforesaid property," and strike out the rest of the paragraph down to and including the words "permanent receiver." In folio 12, after the words "executes and acknowledges," add, "and files;" and in folio 13 strike out the words "and upon the filing of which bond," down to and including the words "appointing him pursuant to law," in folio 16. With these alterations, the order appealed from is affirmed, without costs.

SEDGWICK, C. J., concurs.

SHIPPING

BALDWIN et al. v. STAMFORD Manuf'g Co.

(Superior Court of New York City, General Term. May 7, 1888.)

CHARTER-PARTY-CONSTRUCTION-DISCHARGE Of Cargo.

A provision in a charter-party that "25 running days are to be allowed the said merchants (if the ship be not sooner dispatched) for loading the vessel at port of loading, and for the discharge with the usual quick dispatch," does not allow the merchant freighters 25 days for discharging, in addition to 25 days for loading, the cargo; and such freighters are liable for demurrage for the time they retain the vessel beyond the period required for the usual quick dispatch.

Appeal from judgment on report of referee.

Action by Austin P. Baldwin and others against the Stamford Manufacturing Company to recover demurrage for 10 days, at the rate of eight pounds sterling a day. There was a judgment for plaintiffs for $445.99, and defendant appeals.

Argued before SEDGWICK, C. J., and FREEDMAN and O'GORMAN, JJ.

Wilcox, Adams & Macklin, for appellant. Seward, Da Costa & Guthrie, for respondents.

O'GORMAN, J. The action was brought by the assignee of the owner of a foreign ship to recover from the merchant freighters in New York demurrage for 10 days, at the rate of eight pounds sterling a day. The material facts, as found, are these: On November 4, 1884, the ship arrived in the port of New York. She was ready to discharge cargo on November 7th. The cargo was not completely discharged until November 24th. The charter-party contained this provision: "Twenty-five running days are to be allowed the said merchants (if the ship be not sooner dispatched) for loading the vessel at port of loading, and for the discharge with the usual quick dispatch." Defendant's contention, that the proper interpretation of that clause is that 25 days should be allowed for discharging, in addition to 25 days also allowed for loading, cannot be sustained. The only question is whether the vessel was discharged by the freighters in New York with such quick dispatch as is usual, under similar circumstances, in the port of New York. The referee found that the freighters failed to exercise such usual quick dispatch; that the time which would have been required and sufficient to discharge the ship was not more than seven working days and one-fourth of a day,--that is to say, from Friday, November 7th, to Saturday, November 15th; and that the ship was not in fact completely discharged until the afternoon of November 24th, being nine and three-fourths days longer than was allowed under the charter-party. The referee, in so finding, is sustained by sufficient evidence. The object and intent of provisions in charter-parties, such as that here in question, is to secure speedy release of the ship from her occupation in one voyage, so that she may be, as soon as possible, free to undertake another. This is in the spirit of the maxim of admiralty that "a ship is made to plow the sea, and not to rot by the wall." The judgment below is sustained and affirmed, with costs.

(Common Pleas of New York City and County, General Term. June 4, 1888.) 1. TRADE-MARKS-DESCRIPTIVE WORDS-RIGHT TO USE.

The words "Maryland Club Whiskey," arbitrarily chosen and used by plaintiffs as a designation by which a particular whiskey was to be known to dealers and the public, and not in themselves indicating any particular kind, quality, or composition of whiskey previously well known to the trade, are a proper subject for a trademark, and the fact that such words have been applied only to a certain grade of