Dissenting opinion of FREEDMAN, J. and which he participated in and approved of at the time it was done. In Huntington v. Ballou (2 Lans. 120) the defendant was an accommodation indorser of a note. Some time after the maturity of the note, the maker, without defendant's authority or knowledge, paid to plaintiff the interest due thereon, and took a receipt reciting that the same had been received from and paid by the defendant. The plaintiff showed the receipt to the defendant, and the latter thereupon examined it, and expressed his approval. It was held that by such act the defendant adopted the payment as his own, and became entitled, as between him and the other parties liable on the note, to the benefits secured to him by the receipt; that, as to the plaintiff' he assumed the legal liabilities consequent upon such payment to the same extent as if it had been actually made by him; and that for these reasons the payment took the case out of the operation of the statute of limitations as to such defendant. The case of the First National Bank of Utica c. Ballou (49 N. Y. 155), presented substantially the same state of facts as the case last referred to, and the decision was precisely the same. In delivering the unanimous opinion of the court of appeals, RAPALLO, J., says: "Although Shearman (the maker) was liable on the same notes, yet there was nothing in that circumstance to prevent an arrangement between the parties by which he should make this payment for and on behalf of the defendant; and if he did so, it was immaterial whose money he used. If the defendant had made the pay ment in person, but Shearman had furnished the money, the payment would be none the less effectual as an admission of liability to bind the defendant. And if the defendant requested Shearman to make it in defendant's name, the effect of the payment as a recognition of the defendant's liability, would not be dimin Dissenting opinion of FREEDMAN, J. ished by the fact that Shearman used his own money. The subsequent ratification of a payment made in that form is as effectual a recognition of liability as if the payment had been made by previous request. In the present case the notes were paid by the makers at maturity as contemplated by all the parties, and as the defendant by his contract of endorsement had undertaken to see that they should be paid. By hauding them to plaintiff's firm in the manner he did, and failing to make a specific appropriaton of them, the defendant, as has already been shown, authorized the said firm to apply the payment, when received, in reduction of his general indebtedness. By this arrangement the defendant secured to himself the benefit of an extension of credit. The mortgage could not be enforced until default in the payment of the notes, and the taking of the notes suspended the right of action of plaintiff's firm against the defendant to the extent of one thousand dollars until the maturity of the notes. No reason exists, therefore, why the defendant should not be held to have given implied authority, if not express, to the makers of the notes to pay the same to plaintiff's firm at maturity. The case of Harper v. Fairley (53 N. Y. 442), is clearly distinguishable. In that case the payment was made without the knowledge of the debtor several years after the collateral obligation had matured. It was for this reason that the court of appeals held that there could be no implied authority to make the payment "at the time it was made." It was conceded, however, that if certain facts sworn to by the plaintiff had been submitted to the jury and found in his favor, the express assent of the defendant to this payment would have been established, and that such assent would have been sufficient. These facts were contro verted and were not submitted to the jury; and the instruction of the judge authorized the jury to render Dissenting opinion of FREEDMAN, J. a verdict for the plaintiff, even though they should disbelieve his evidence in that respect. It was for this reason that the said evidence could not avail the plaintiff on that appeal. Moreover, the testimony in the case at bar, shows a ratification. Plaintiff's bookkeeper testified that subsequently to the payment of the two notes he had a conversation with the defendant concerning them, and that in such conversation the defendant said that he had paid so much on those notes, that he owed more, and would pay the balance. This testimony remained uncontradicted, and is therefore sufficient within all the authorities. Notwithstanding the statutory requirement that acknowledgments and new promises should be in writing, a part payment may be proved by the oral admission of the party (First National Bank of Utica v. Ballou, 49 N. Y. 155, 158). So where an act, though unauthorized, is apparently for the benefit of the principal, a very slight matter will serve to make out a ratification, and when it plainly appears that the principal at the time did mean to ratify that which apparently was done for his benefit, the law does not compel the court to deny him the privilege. He must be taken to have considered for himself whether the act done was, on the whole, such as he approves and desires to be bound by (Commercial Bank of Buffalo v. Warren, 15 N. Y. 577). The decison of the referee being right and sufficiently supported, notwithstanding the erroneous effect given to the account between the parties, the judgment appealed from should be affirmed, with costs. ! Opinion of CURTIS, J. SPECIAL TERM, MAY, 1874. ISAAC S. ISAACS v. AUGUSTIN DALY. I. LITERARY PROPERTY. 1. TITLES TO BOOKS, PLAYS, ENGRAVINGS, &C. 1. Words which in their ordinary and universal use denote the virtues, such as "Charity," "Faith," can not ordinarily be appropriated by any one as a title or designation for a book, play, &c., written, &c., by him, treating or enforcing, symbolizing, &c., a virtue, to the exclusion of any other person who may write, &c., a book, play, &c., treating upon enforcing, symbolizing, &c., the same virtue. a. BAD FAITH, &c.-There may be cases where a title is made use of in bad faith, or to promote some imposition, or to inflict a wrong, when a court of justice should interfere to prevent its use or to compensate a party who has in consequence sustained an injury. Motion for an injunction. Adolf L. Sanger, for the motion. A. Oakey Hall, opposed. CURTIS, J. (at special term).-This action is brought to restrain the performance of a play called "Charity; also for an accounting of profits, and for twenty thousand dollars damages. December 19, 1873, the plaintiff deposited in the copyright office at Washington the title of a play called "Charity," and copyrighted such dramatic composition. In January following, the defendant purchased the exclusive right, Opinion of CURTIS, J. as he alleges, to possess and use manuscript copies of an entirely different play by William S. Gilbert, Esq., also called "Charity," the latter then being played at The Haymarket, London. The defendant in February following prepared it for performance, and on the 27th of that month advertised it for a public representation on March 3, the day subsequent to the hearing of this motion for an injunction. It is objected that the action should have commenced in the federal courts. This court has long exercised a jurisdiction to protect literary property, and the act of congress in 1870, conferring jurisdiction in this class of suits, upon the federal courts, appears to afford an additional remedy, without affecting the pre-existing jurisdiction in respect to the rights the plaintiff has in the play, and which exist at common law, independently of all statutes (Palmer v. De Witt, 47 N. Y. 532). The other question as to whether the defendant should be enjoined from performing the play under the name of Charity," is not free from difficulty. The affidavits fail to satisfy me that the plaintiff would be injured on the ground claimed by him, that Mr. Gilbert's play has been unfavorably received and criticised, when played. It is not alleged that there has been any bad faith on either side. The complication appears to be purely accidental. Should the dramatic performance be enjoined because the word "Charity" is the title of each? No question exists as to any imitation or similitude in Mr. Gilbert's play. It is simply to be considered whether the use of the word Charity" in Mr. Isaac's play for a title, and his copyrighting the play, give him the exclusive use of that word as a title in the public performance of plays. Charity is a virtue that has been symbolized and portrayed in every stage and department of art for all ages. Would it be just that an engraver who has copy |