text:
    Charles S. Kress, Appellant and Respondent, v. Manufacturers Trust Company, Respondent and Appellant.
    Argued June 2, 1937;
    decided July 13, 1937.

      James F. Donnelly, Samuel Michelman and Joseph W. Landes for plaintiff, appellant and respondent.

      Leonard G. Bisco, William J. Granger and N. Wolfe Morgan for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, O’Brien, Hijbbs, Loughran, Finch and Rippey, JJ. Taking no part: Crane, Ch. J.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph N. Early et al., Appellants and Respondents, v. Carl W. Funk et al., Respondents and Appellants, Impleaded with Another.
    Argued June 3, 1937;
    decided July 13, 1937.

      Alvin C. Cass and Jacques W. Bacal for plaintiffs, appellants and respondents.

      Warren A. Schenck for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    Luke Malloy, an Infant, by James Malloy, His Guardian ad Litem, et al., Appellants, v. Hugh L. Scott, Defendant, and Joseph Weidenhoff, Inc., Respondent.
    Submitted June 7, 1937;
    decided July 13, 1937.

      Ralph Stout and Louis Rothbard for appellants.

      Dickinson S. Talley for respondent.
   Judgment affirmed, with costs; no opimon.

Concur: Crane, Ch. J., Lehman, Hubbs, Lotjghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Frederick A. Mann, Appellant, v. Walter Major, Individually and as Superintendent of Highways of the Town of Irondequoit, Respondent.
    Argued June 4, 1937;
    decided July 13, 1937.

      Frederick A. Mann appellant in person.

      Robert W. Lochner for respondent.
   Appeal dismissed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Mayflower Apartments, Inc., Respondent, v. Paul V. Sheehan, Appellant.
    Argued June 7, 1937;
    decided July 13, 1937.

      Paul V. Sheehan appellant, in person.

      Claude V. Kister for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Talcing no part: O’Brien, J.


text:
    Echo Lake Corporation et al., Respondents, v. Town of Mount Pleasant et al., Appellants.
    Argued June 7, 1937;
    decided July 13, 1937.

      William F. Bleakley and Henry J. Logan for appellants.

      Joseph Day Lee and Winfield L. Morse for Taxpayers Association of the Town of Mount Pleasant, Inc., amicus curiæ.

      William D. Cunningham for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Htjbbs, Lottghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    John J. Bennett, Jr., as Attorney-General of the State of New York, Respondent, v. Supreme Enforcement Corporation, Appellant.
    Argued June 7, 1937;
    decided July 13, 1937.

      John E. Leddy and I. Maurice Wormser for appellant.

      John J. Bennett, Jr., Attorney-General (Colin McLennan and John F. X. McGohey of counsel), for respondent.

      A. Lincoln Lavine, Edwin M. Otterbourg, Abraham Benedict and Frederic P. Houston for New York County Lawyers Association, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Lotjghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Stephen H. Mason, Appellant, v. Village of Munsey Park, Respondent.
    Argued June 7, 1937;
    decided July 13, 1937.

      C. Malcolm Dowsey and Frank E. Chester for appellant.

      Herman Block for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    In the Matter of Stephen H. Mason, Appellant, v. Fred W. Wulfing, as Mayor of the Village of Munsey Park, et al., Respondents.
    Argued June 7, 1937;
    decided July 13, 1937.

      C. Malcolm Dowsey and Frank E. Chester for appellant.

      Herman Block for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Michael J. Higgins, Respondent, v. New York Florists Supply Co., Inc., Appellant.
    Argued June 7, 1937;
    decided July 13, 1937.

      H. H. Brown and E. C. Sherwood for appellant.

      Arthur K. Wing and George S. Wing for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Lewis M. Pettis, Respondent, v. New York State Electric & Gas Corporation, Appellant.
    Argued June 7, 1937;
    decided July 13, 1937.

      James B. Gitlitz and A. E. Gold for appellant.

      Walter J. Relihan and Daniel J. McAvoy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Httbbs, Loughran, Finch and Rippey, J J. Taking no part: O’Brien, J.


text:
    Tomoss Skzypek, as Administrator of the Estate of Mary Skzypek, Deceased, Respondent, v. Long Island Rail Road Company, Appellant.
    Argued June 8, 1937;
    decided July 13, 1937.

      Ralph E. Hemstreel, William McNamara and Louis J. Carruthers for appellant.

      Arthur K. Wing and James G. Purdy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Lottgbean, Finch and Rippey, J J. Taking no part: O’Brien, J.


text:
    Annie McNeill, Respondent, v. Greta V. Stafford, Appellant, Impleaded with Another. Julia Sullivan, Respondent, v. Greta V. Stafford, Appellant, Impleaded with Another.
    Argued June 8, 1937;
    decided July 13, 1937.

      Daniel Mungall and Edwin C. Markel for appellant.

      Ralph Stout, Edgar F. Hazleton and Harry S. Austin for respondents.
   In each case: judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Adelbert Ayers, Respondent, v. Village of Herkimer, Appellant.
    Argued June 8, 1937;
    decided July 13, 1937.

      Francis J. Moore for appellant.

      Fred J. O’Donnell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Rafael Aversa, Appellant, v. James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents, and Edmond B. Butler et al., Constituting the Board of the Emergency Relief Bureau of the City of New York, Appellants and Respondents, Impleaded with Another.
    Argued June 8, 1937;
    decided July 13, 1937.

      Osmond K. Fraenkel and Herman E. Cooper for plaintiff, appellant.

      Paul Windels, Corporation Counsel (Jeremiah M. Evarts, Robert H. Schaffer and Charles F. Murphy of counsel), for Municipal Civil Service Commission, respondent.

      H. Eliot Kaplan and Kenneth M. Spence for Civil Service Reform Association, amicus curiæ.

   Order affirmed, with' costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loúghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Silas Mason Company, Inc., Respondent, v. The City of New York, Appellant.
    Argued June 8, 1937;
    decided July 13, 1937.

      Paul Windels, Corporation Counsel (John G. Clancy and Paxton Blair of counsel), for appellant.

      Emil N. Baar and Arthur Block for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loeghran, Finch and Ripp-ey, JJ. Taking no part: O’Brien, J.


text:
    Richard L. Whalen et al., Respondents, v. Alvah G. Strong et al., Appellants, Impleaded with Another.
    Argued June 8, 1937;
    decided July 13, 1937.

      T. Carl Nixon, E. W. Middleton, Raymond Bentley and Arthur L. Stern for Alvah G. Strong et al,,. appellants.

      Kenneth B. Keating and Henry L. Crittenden for Robert Reilly, appellant.

      John J. Reilly for Asa D. McBride, appellant.

      Jacob L. Rubenstein and Samuel Levy for respondents.
   Judgment affirmed, with costs; no opinion. (See 275 N. Y. 541.)

Concur: Crane, Ch. J., Htjbbs, Loxjghran, Finch and Rippey, JJ. Taking no part: Lehman and O’Brien, JJ.


text:
    Rosina Violano et al., as Administrators of the Estate of Michael Violano, Deceased, Appellants, v. Maryland Casualty Company, Respondent.
    Argued June 9, 1957;
    decided July 13, 1937.

      Jay Leo Rothschild, Nathan Weinstein and Isidore L. Weishar for appellants.

      George J. Stacy, James J. Manoney and Frederick L. Thielmann for respondent.
   Judgment affirmed, with costs; no opinion.

Concur : Crane, Ch. J., Hobbs, Loügíiran, Finch and Rippey, JJ. Taking no part: Lehman and O’Brien, JJ.


text:
    The People of the State of New York, Respondent, v. George L. Smith, Appellant.
    Argued June 9, 1937;
    decided July 13, 1937.

      Daniel J. O’Mara, District Attorney (Harry L. Rosenthal of counsel), for respondent-.
   Judgment affirmed on authority of People v. Gangloff (272 N. Y. 643). No opinion.

Concur: Crane, Ch. J., Híjbbb, Loughran, Finch and Rippey, JJ. Taking no part! Lehman and O’Brien, JJ.


text:
    Willard E. Noyes, Appellant, v. Irving Trust Company, as Trustee in Bankruptcy of McLellan Stores Company, Respondent.
    Argued June 9, 1937;
    decided July 13, 1937.

      Simon Goldman and Herbert Brody for appellant.

      Inzer B. Wyatt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: Lehman and O’Brien, JJ.


text:
    The People of the State of New York, Respondent, v. John McGuire, Appellant.
    Argued June 9, 1937;
    decided July 13, 1937.

      Warren H. Mayell and Robert J. Fitzsimmons for appellant.

      William Copeland Dodge, District Attorney (Aiken A. Pope of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: Lehman and O’Brien, JJ.


text:
    United States Hotel Co., Inc., Respondent, v. City of Saratoga Springs et al., Appellants.
    Argued June 9, 1937;
    decided July 13, 1937.

      Theodore A. Knapp and Francis E. Dorsey for appellants.

      John A. Slade for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: Lehman and O’Brien, JJ.


text:
    John P. Parsons, Respondent, Impleaded with Another, v. Liberty National Bank and Trust Company, Appellant.
    Argued June 8, 1937;
    decided July 13, 1937.

      William O. Robertson and Louis J. Felstiner for appellant.

      Ernest J. Ellenwood for respondent.
   Judgment affirmed, with costs; no opinion. (See 275 N. Y. 543.)

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Nick Angerosa et al., Respondents, v. The White Company, Appellant.
    Argued June 10, 1937;
    decided July 13, 1937.

      William R. Lee for appellant.

      Bartle Gorman and Stephen L. Waskiewicz for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Lotjghran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Sally S. Lindsay, Respondent, v. Morton H. Fry et al., Copartners Doing Business under the Name of Scholle Brothers, Appellants.
    Argued June 11, 1937;
    decided July 13, 1937.

      George H. Richards and Matthew Hale for appellants.

      H. H. Nordlinger, Harold Riegelman and David B. Lefkowitz for respondent.
   Judgment affirmed, with costs; ho opinion.

Concur: Crane, Ch, «!,, Lehman, Hübbs# LqüghráN# Finch and RIpPey# JJ. Taking ho part: O’Brien, J.


text:
    Seglin Construction Company, Inc., et al., Respondents, v. The State of New York, Appellant.
    (Claim No. 22029.)
    Argued June 11, 1937;
    decided July 13, 1937.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Leon M. Layden of counsel), for appellant.

      William Brennan, Jr., for Seglin Construction Company, Inc., et al., respondents.

      Charles B. Sullivan and Benjamin McClung for A. E. Norton, Inc., respondent.
   On appeal from judgment: judgment affirmed, with costs.

On appeal from order: order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    James Breeze, as Administrator of the Estate of Robert Breeze, Deceased, Appellant, v. City of New York et al., Respondents.
    Submitted June 11, 1937;
    decided July 13, 1937.

      John F. Finn, Jr., for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Ralph W. Thomas of counsel), for City of New York, respondent.

      Michael Halperin and Robert Morris for Katherine Lavine, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, Hubbs, Loughran, Finch and Rippey, JJ. Taking no part: O’Brien, J.


text:
    Sadie Malkoon, Appellant, v. North River Insurance Company of the City of New York, Respondent.
    Submitted June 11, 1937;
    decided July 13, 1937.

      Salvador J. Capecelatro for appellant.

      Edward L. O’Donnell for respondent.
   Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

Concur: Crane, Oh. J., Lehman, Hubbs, Loughran, Finch and RippEy, JJ. Taking no part: O’Bríen, J.


text:
    In the Matter of the Rehabilitation of New York Title and Mortgage Company. Louis H. Pink, Superintendent of Insurance, as Liquidator of New York Title and Mortgage Company, Appellant; Mortgage Commission of the State of New York et al., Respondents.
    Submitted May 17, 1937;
    decided July 13, 1937.
   Motion for reargument denied, without costs. (See 274 N. Y. 556.)


text:
    In the Matter of Lawyers Mortgage Company. Louis H. Pink, Superintendent of Insurance, as Rehabilitator of Lawyers Mortgage Company, Appellant; Mortgage Commission of the State of New York et al., Respondents.
    Submitted May 17, 1937;
    decided July 13, 1937.
   Motion for reargument denied, without costs. (See 272 N. Y. 554.)


text:
    In the Matter of the Claim of Clyde H. Whitmyre et al., Respondents, against International Business Machines Corporation et al., Appellants.
    Submitted June 7, 1937;
    decided July 13, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 61.)


text:
    Fred J. Smith et al., Respondents, v. American Automobile Fire Insurance Company, Defendant, and American Automobile Insurance Company, Appellant.
    Submitted July 13, 1937;
    decided July 13, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 626.)


text:
    Nathan N. Stark, Respondent, v. Title Guarantee and Trust Company, Appellant.
    Submitted July 13, 1937;
    decided July 13, 1937.

      Raymond J. Schosberg for motion.

      Richard S. Holmes opposed.
   Motion to dismiss appeal denied on condition that appellant’s brief is served and filed by August 25, 1937.


text:
    In the Matter of the Claim of Theressia C. Love, Respondent, against Thatcher Manufacturing Company, Employer, and State Insurance Fund, Appellant. State Industrial Board, Respondent.
    Submitted July 13, 1937;
    decided July 13, 1937.

      John E. Sullivan for motion.

      Walter D. Smith opposed.
   Motion granted and appeal dismissed, with costs and ten dollars cost of motion.


text:
    In the Matter of Francis E. de Paolo, Appellant, against The Department of Health of the City of New York, Respondent.
    Submitted July 13, 1937;
    decided September 28, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for motion.
    No one opposed:
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of New York State Electric and Gas Corporation et al., Appellants, against Public Service Commission of the State of New York et al., Respondents.
    Submitted July 13, 1937;
    decided September 28, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 591.)


text:
    Walter N. Smith, Appellant, v. F. H. LaGuardia, as Mayor of the City of New York, et al., Respondents.
    Submitted July 13, 1937;
    decided September 28, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for motion.

      Walter N. Smith, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Colonial Discount Co., Inc., Appellant, v. Robert E. Rumens, Respondent.
    Submitted July 13, 1937;
    decided September 28, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements, (See 274 N. Y. 612.)


text:
    Hessian Hills Country Club, Inc., et al., Appellants, v. Home Insurance Company, Respondent. Hessian Hills Country Club, Inc., et al., Appellants, v. Hartford Fire Insurance Company et al., Respondents.
    Submitted July 13, 1937;
    decided September 28, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 562.)


text:
    In the Matter of the Will of William Carroll, Deceased. Ralph C. Carroll, Jr., et al., Infants, by Benjamin F. Schreiber, as Special Guardian, et al., Appellants; Paul A. Curtis, Respondent.
    Submitted July 13, 1937;
    decided September 28, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 288.)


text:
    In the Matter of August Luchow, Inc., Respondent, against Frank J. Taylor, as Comptroller of the City of New York, Appellant.
    Argued June 10, 1937;
    decided October 5, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair, Sol Charles Levine and Edmund B. Hennefeld of counsel), for appellant.

      Arnold J. Bernstein and Arthur H. Schwartz for respondent.
   Order affirmed, with costs; no opinion.

Concur: O’Brien, Hubbs, Loughran and Rippey, JJ. Dissenting: Crane, Ch. J., Lehman and Finch, JJ.


text:
    Otto A. Trumm, Appellant, v. The City of Long Beach, Respondent.
    Submitted October 4, 1937;
    decided October 5, 1937.

      Thomas A, Saulsbury for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    International Harvester Company of America, Inc., Respondent, v. James P. Whelan et al., Respondents, and Bethlehem Steel Corporation et al., Appellants.
    Submitted July 13, 1937;
    decided October 5, 1937.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 162.)


text:
    Marcel M. Holzer, Respondent, v. Deutsche Reichsbahn Gesellschaft et al., Defendants. Schenker & Co., Inc., Appellant.
    Submitted July 13, 1937;
    decided October 5, 1937.

      Meyer Grouf for motion,

      William A. Marden opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Florence Newborn, Appellant, against Joseph M. Feely, Individually and as Surrogate of the County of Monroe, et al., Respondents, Impleaded with Others.
    Argued September 27, 1937;
    decided October 5, 1937.

      Arthur V. D. Chamberlain for motion.

      Franklin H. Smith opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion.


text:
    John F. Pitz, Sr., Respondent, v. James J. Munro, as Receiver for Richmond National Bank of New York, Appellant, Impleaded with Another.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 473.)


text:
    Richard L. Whalen et al., Respondents, v. Alvah G. Strong et al., Appellants, Impleaded with Another.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 516.)


text:
    Walter N. Smith, Appellant, v. F. H. LaGuardia, as Mayor of the City of New York, et al., Respondents.
    Submitted September 27, 1937;
    decided October 5, 1937.

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for motion.

      Walter N. Smith, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars.costs of motion.


text:
    Eugene Szold, Appellant, v. Outlet Embroidery Supply Co., Inc., Respondent.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion to amend remittitur granted- Return of remittitur- requested and when returned it will be amended by adding thereto the following: “Upon the appeal herein the plaintiff contended that sections 13 to 13-j of the Workmen’s Compensation Raw of the State of New York (Consolidated Laws, chap. 67) contravened the Fourteenth Amendment of the Federal Constitution in the aspects discussed in the opinion of the court (274 N. Y. 271). Such questions were presented and necessarily passed upon but not sustained by the court.” (See 274 N. Y. 271.)


text:
    Eugene A. Perkins, Respondent, v. Guaranty Trust Company of New York, Defendant, and Idonah S. Perkins, Appellant.
    Submitted September 27, 1937 ;
    decided October 5, 1937.
   Motion for reargument granted to the extent of the third counterclaim not previously presented to this court. (See 274 N. Y. 250.)


text:
    Edmund J. Robbins, Respondent, v. John L. Abrew et al., Defendants, and Barney Davis et al., Appellants.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars, costs and necessary printing disbursements. (See 275 N. Y. 233.)


text:
    James A. McGraw, Respondent, v. George Selkis et al., Appellants, Impleaded with Others.
    Argued September 27, 1937;
    decided October 5, 1937.

      Patrick J. Keniry for motion.

      James Heffernan, opposed.
   Motion denied, with ten dollars Costs and necessary printing disbursements.


text:
    John P. Parsons, Respondent, Impleaded with Another, v. Liberty National Bank and Trust Company, Appellant.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 522.)


text:
    Edwin B. Moore, Appellant, v. United States Cremation Company, Ltd., Respondent.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 105.)


text:
    Joseph Lewis, Appellant, v. The Board of Education of the City of New York, Respondent.
    Submitted September 27, 1937;
    decided October 5, 1937.

      Paul Windels, Corporation Counsel (Nicholas Bucci of counsel), for motion.

      Joseph Wheless opposed.
   Motion denied, with leave to renew upon the argument.


text:
    Charles J. Fisher, Jr., an Infant, by Mary E. Fisher, His Guardian ad Litem, Respondent, v. Samuel P. Bartley et al., Appellants.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 469.)


text:
    Dime Savings Bank of Brooklyn, Appellant, v. Beckey Altman, Respondent, Impleaded with Others.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 275 N. Y. 62.)


text:
    Syril Liedeker et al., Appellants, v. Sears, Roebuck & Co., Inc., Respondent, Impleaded with Another.
    Submitted September 27, 1937;
    decided October 5, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 274 N. Y. 631.)


text:
    Elizabeth F. Vilkomerson, Appellant, v. Tri-State Investors Corporation et al., Respondents.
    Submitted September 27, 1937;
    decided October 5, 1937.

      Samuel Meyers for motion.

      Robert H. Elder opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless undertaking is filed and served before November 15, 1937, in which event the motion is denied.


text:
    John Kriss, Respondent, v. Mary Kriss, Individually and as Administratrix of the Estate of Andrew Kriss, Deceased, Appellant, Impleaded with Others.
    Submitted September 27, 1937;
    decided October 5, 1937.

      James A. Nolan for motion.
    No one opposed.
   Motion granted.


text:
    In the Matter of Albert F. Volgenau, Appellant, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Submitted September 27, 1937;
    decided October 5, 1937.

      Albert F. Volgenau, in person, for motion.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri of counsel), in accord with motion.
   Motion granted.


text:
    The People of the State of New York, Respondent, v. Charles Luciano, Thomas Pennochio, David Betillo, James Frederico, Abraham Wahrman and Ralph Liguori, Appellants.
    Submitted October 4, 1937;
    decided October 6, 1937.

      William Copeland Dodge, District Attorney (Thomas E. Dewey and Stanley H. Fuld of counsel), for motion.

      Martin Conboy, David Asch, F. W. H. Adams, Moses Polakoff, George Morton Levy, Samuel Hassen, Joseph Selman and Lorenzo C. Carlino opposed.
   Motion to eliminate the supplemental record and to dismiss appeal granted to this extent: Motion to eliminate from the record on appeal all proceedings upon the motion for a new trial upon the ground of newly-discovered evidence is granted. This court has no power to review the discretionary order made on such motion except in cases of murder in the first degree.


text:
    In the Matter of Grade Crossing and Terminal Station Commission of City of Buffalo, Respondent, Relative to Grade Crossing of Clinton Street. City of Buffalo, Appellant; Delaware, Lackawanna and Western Railroad Company, Respondent.
    Argued September 27, 1937;
    decided October 12, 1937.

      Gregory U. Harmon, Corporation Counsel (Jeremiah J. Hurley of counsel), for appellant.

      Louis L. Babcock for Delaware, Lackawanna and Western Railroad Company, respondent.

      DeWitt Clinton, II, and DeWitt Clinton for Grade Crossing and Terminal Station Commission of the City of Buffalo, respondent.
   Order affirmed, with costs. First question certified not answered. Second question certified answered in the negative. Third question certified answered in the affirmative. No opinion.

' Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Thomas F. O’Keeffe, Respondent, against James E. Finegan et al., as Commissioners of the Municipal Civil Service Commission of the City of New York, et al., Appellants, and S. Howard Cohen et al., as Commissioners of the Board of Elections of the City of New York, Respondents, Impleaded with Another.
    Argued September 27, 1937;
    decided October 12, 1937.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Robert H. Schaffer of counsel), for appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for Board of Elections of the City of New York, respondent.

      Irving H. Saypol and Leo Kotler for petitioner, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of George W. Criss, Respondent, against James E. Finegan et al., as Commissioners of the Municipal Civil Service Commission of the City of New York, et al., Appellants, and S. Howard Cohen et al., as Commissioners of the Board of Elections of the City of New York, Respondents, Impleaded with Another.
    Argued September 27, 1937;
    decided October 12, 1937.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Robert H. Schaffer of counsel), for appellants.

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for Board of Elections of City of New York, respondent.

      Irving H. Saypol and Leo Kotler for petitioner, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ.


text:
    In the Matter of Calvary Presbyterian Church, Appellant, against State Liquor Authority et al., Respondents.
    Argued September 27, 1937;
    decided October 12, 1937.

      Robert J. Lansdowne for appellant.

      Monroe I. Katcher, II, and William H. Ticho for State Liquor Authority et al., respondents.

      Samuel E. Chasin and Benjamin Franklin for Philip Amigone, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Ripfey, JJ.


text:
    In the Matter of Anna Curry, Respondent, against John Curry, Appellant.
    Argued September 27, 1937;
    decided October 12, 1937.

      Francis X. Nicastro and John F. Hughes for appellant.

      Paul Windels, Corporation Counsel (James Hall Prothero, Paxton Blair, Arthur Bainbridge Hoff and Elizabeth Rogers Horan of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of James F. Laverty, Appellant, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued September 27, 1937;
    decided October 12, 1937.

      Robert L. Callahan and Joseph J. Reiher for appellant.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Robert H. Schaffer of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Accounting of Manufacturers and Traders Trust Company et al., as Executors of John E. Johnson, Deceased, Respondents; William R. Emblidge, as Trustee in Bankruptcy of John Johnson Construction Company, Appellant.
    Argued September 28, 1937;
    decided October 12, 1937.

      Howard T. Saperston and Daniel N. McNaughton for appellant.

      James C. Sweeney for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., O’Brien, Loitghran, Finch and Rippey, JJ. Lehman and Htjbbs, JJ., dissent on the ground that there is no evidence the withdrawals were intended as dividends.


text:
    In the Matter of Max G. Neuhauser, Appellant, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate and Apportionment of the City of New York, et al., Respondents.
    Argued September 28, 1937;
    decided October 12, 1937.

      Alfred J. Talley for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Jeremiah M. Evarts of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O'Brien, Hubbs, Loughran, Finch and Bippey, JJ.


text:
    Margaret W. Donald, Appellant, v. City of New York et al., Respondents, Impleaded with Others.
    Submitted September 28, 1937;
    decided October 12, 1937.

      John J. O’Connell for appellant.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., and Paxton Blair of counsel), for city of New York, respondent.

      Copal Mintz and Hyman Korn for Charles A. Buckley, respondent.

      Murray D. Welch for Ætna Casualty and Surety Company et al., impleaded defendants.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of the Commissioner of Taxation and Finance, Respondent, against Oceanic Service Corporation et al., Appellants. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      Sydney Weitzer for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Seymour P. Gould, Respondent, against Champeney and Turk, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      John E. Leach and Noel S. Symons for appellants.

      Joseph A. Marion and Manly Fleischmann for claimant, respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Anna Voelker, Respondent, against Jos. Rosenberg’s Sons et al., Appellants. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      Jeremiah F. Connor and William E. Lowther for appellants.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Chi J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Margaret Donohue, against Yonkers Sash Weight Corporation et al., Respondents. State Industrial Board, Appellant.
    Argued September 28, 1937;
    decided October 12, 1937.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for appellant.

      Jeremiah F. Connor for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Florence J. Magill, Appellant, against Cunard White Star Limited, Respondent. State Industrial Board, Respondent.
    Submitted September 28, 1937;
    decided October 12, 1937.

      Jeremiah F. Connor for appellant.

      Thaddeus G. Cowell for Cunard White Star Limited, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Laura A. Sullivan, Respondent, against Laura Valentine et al., Appellants. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      Ellwood Thomas and Benjamin E. Messler for appellants.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of James O’Brien, Respondent, against Shore Road Hospital et al., Appellants. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      Harry Wareham and Frank L. Ward for appellants.

      William M. Steinberg for claimant, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Joseph P. Crowley against Yonkers Herald Publishing Company et al., Respondents. State Industrial Board, Appellant.
    Argued September 28 1937;
    decided October 12, 1937.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin of counsel), for appellant.

      Jeremiah F. Connor and William Butler for respondents.
   Order affirmed, with costs against State Industrial Board. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of George W. Tipton against Lang’s Bakery, Inc., et al., Respondents. State Industrial Board, Appellant.
    Argued September 28, 1937;
    decided October 12, 1937.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel) for appellant.

      William M. Fay for respondents.
   Order affirmed, with costs against State Industrial Board. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Patrick J. Fallon against New York Color and Chemical Company et al., Respondents. State Industrial Board, Appellant.
    Submitted September 28, 1937;
    decided October 12, 1937.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for appellant.

      Herbert F. Hastings, Jr., F. G. Mann and Everett F. Warrington for respondents.
   Order affirmed, with costs against State Industrial Board. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Dominick D’Adamo, Respondent, against Dominick D’Adamo, Defendant, and Travelers Insurance Company, Appellant. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      William B. Davis and E. C. Sherwood for appellant.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of John J. DeCicco, Respondent, against Rubel Corporation et al., Appellants. State Industrial Board, Respondent.
    Argued September 28, 1937;
    decided October 12, 1937.

      William B. Davis and E. C. Sherwood for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.

      Paul J. Carr for claimant, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Pinch and Rippey, JJ.


text:
    In the Matter of the Claim of Emory L. Eurbin against Prudential Insurance Company of America et al., Respondents. State Industrial Board, Appellant.
    Argued September 28, 1937;
    decided October 12, 1937.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for appellant.

      William B. Davis and E. C. Sherwood for respondents.
   Order affirmed, with costs against the State Industrial Board. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien Hubbs Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of The Commissioner of Taxation and Finance against Brookshire Construction Co., Inc., et al., Respondents. State Industrial Board, Appellant.
    Argued September 28, 1937;
    decided October 12, 1937.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for appellant.

      William S. Sinclair and James J. Mahoney for respondents.
   Order affirmed, with costs against the State Industrial Board. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Bruce A. Hood, Appellant, against E. Frederick Eilert et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents. Horace M. Gray, Intervener, Respondent.
    Argued October 7, 1937;
    decided October 12, 1937.

      William A. Walsh and William J. Wallin for appellant.

      Leonard G. McAneny, Corporation Counsel (Morris L. Rosenwasser and John J. Broderick of counsel), for William H. McCabe, as City Clerk of the City of Yonkers, respondent.

      Laurence Arnold Tanzer and Arthur Carter Hume for Horace M. Gray, intervener, respondent.
   Order affirmed, without costs. We determine solely the question of the method of submission. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Pinch and Rippey, JJ.


text:
    Agnes E. Hoard, Respondent, v. Florida B. Luther, Individually and as Executrix of John J. L. Friederich, Deceased, et al., Appellants.
    Submitted October 4, 1937;
    decided October 12, 1937.

      William T. Plumb for motion.

      Heiby W. Ungerer opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Merton B. Sullivan et al., Appellants, against James E. Finegan, Individually and as President of the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Submitted October 4, 1937;
    decided October 12, 1937.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that the affirmance by the court is without costs. (See 275 N. Y.479.)


text:
    Herbert Smithers, Appellant, v. Warren Leslie, Respondent.
    Submitted October 4, 1937;
    decided October 12, 1937.

      Edgar A. Martin for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files and serves undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    Robert L. Reidy, Appellant, v. City of Syracuse et al., Defendants, and Carl P. Wright, as President of the Common Council of the City of Syracuse, et al., Respondents.
    Argued October 13, 1937;
    decided October 14, 1937.

      Harry Treinin for appellant.

      James C. Tormey, Corporation Counsel (John F, Hmiel of counsel), for respondents.
   Appeal dismissed, without costs. Motion for leave to appeal denied, without costs. No opinion.

Concur: Crane, Ch. J., Lehman, O'Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Mildred Graves et al., Respondents, against Tide Water Oil Sales Company et al., Appellants. State Industrial Board, Respondent.
    Argued September 29, 1937;
    decided October 19, 1937.

      John J. Connors, Jr., for appellants.

      Paul L. Boyce and John W. Miller for claimants, respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Maria Chila, Respondent, against New York Central Railroad Company, Appellant. State Industrial Board, Respondent.
    Argued September 29, 1937;
    decided October 19, 1937.

      Robert E. Whalen for appellant.

      Rowland H. Long, Horace Valenstein and David D. Glanz for claimant, respondent.
   Order affirmed, with costs; and question certified answered in the affirmative. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Francis Nowicki, Appellant, against Lewis J. Valentine, as Police Commissioner of the Police Department of the City of New York, Respondent.
    Argued September 29, 1937;
    decided October 19, 1937.

      Osmond K. Fraenkel and Samuel S. Leibowitz for appellant.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Henry J. Shields of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Lotjghran and Finch, JJ. Dissenting: Rippey, J.


text:
    The People of the State of New York ex rel. Ida W. Schick, Appellant, v. Rolland B. Marvin, as Mayor of the City of Syracuse, et al., Respondents.
    Argued September 29, 1937;
    decided October 19, 1937.

      James F. Brazell, Frank J. Cregg, Jr., and Thomas J. Lowery for appellant.

      James C. Tormey, Corporation Counsel (John F. Hmiel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York ex rel. Syracuse Trust Company, as Trustee, etc., Respondent, against William M. Remmer et al., as Assessors of the City of Utica et al., Appellants.
    Argued September 29, 1937;
    decided October 19, 1937.

      Bartle Gorman, Corporation Counsel (M. Francis Malone and Daniel B. Myers of counsel), for appellants.

      William H. Harding for respondent.
   Order affirmed, with costs, on the ground that the courts below were justified in construing the stipulation, in view of the course of the trial, as a stipulation that the property in question was assessed at sixty-six per centum of its value. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Estate of Horace E. Wadsworth, Deceased. Lee McCanliss et al., Copartners Composing the Firm of McCanliss, Coutant & Hinch, Appellants; Dorothy P. White, as General Guardian of Mary E. Wadsworth, an Infant, et al., Respondents.
    Argued September 29, 1937;
    decided October 19, 1937.

      Lee McCanliss for appellants.

      Kenneth B. Keating for Dorothy P. White, as general guardian, respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Lottghran, Finch and Rippey, JJ.


text:
    In the Matter of Ira Fink, Appellant, against James E. Finegan et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued September 30, 1937;
    decided October 19, 1937.

      Arthur G. Syran for appellant.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri, Paxton Blair and Robert H. Schaffer of counsel), for respondents.
   Order of Appellate Division and that of the Special Term reversed, and a peremptory order of mandamus compelling re-examination in accordance with Matter of Fink v. Finegan (270 N. Y. 356) and Matter of Sloat v. Board of Examiners (274 N. Y. 367), granted, with costs to the appellant in all courts. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ.


text:
    In the Matter of the Will of Myron H. Bennett, Deceased. Charles C. Congdon, as Executor of Mary A. Ward, Deceased, Appellant; Jennie B. Brasser, as Administratrix with the Will Annexed of Myron H. Bennett, Deceased, Respondent.
    Argued September 30, 1937;
    decided October 19, 1937.

      Charles C. Congdon, in person, for appellant.

      Charles T. Ennis for respondent.
   Order affirmed, with costs to parties appearing by separate attorneys and filing briefs payable out of the estate. No opinion.

■ Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York ex rel. Frank C. Schlitt, Respondent, v. William A. Adams, as Warden of Tombs Prison, Defendant, and The People of the State of New York, Appellant.
    Submitted September 30, 1937;
    decided October 19, 1937.

      William Copeland Dodge, District Attorney (Erwin N. Schapira of counsel), for appellant.

      Norbert Ruttenberg and Nathan Siegel, Jr., for respondent.
   Order of Appellate Division and that of the Special Term reversed, the writ dismissed and relator remanded to custody on the ground that there was sufficient evidence to give the magistrate jurisdiction. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rifpey, JJ.


text:
    Lawrence E. Kirwin, Respondent, v. Common School District No. 9 of the Town of Islip et al., Appellants.
    Argued September 30, 1937;
    decided October 19, 1937.

      David N. Lewis and Asa B. Kellogg for appellants.

      Frank P. Nohowel and Paul E. DeFere for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran and Rippey, JJ. Dissenting: Hubbs and Pinch, JJ.


text:
    In the Matter of Samuel H. Kornbluth, Respondent, against William G. Rice et al., Constituting the New York State Civil Service Commission et al., Appellants.
    Argued September 30, 1937;
    decided October 19, 1937.

      Joseph M. Proskauer and A. Michael Katz for Harry Roistacher, appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Patrick H. Clune of counsel), for State Civil Service Commission, appellant.

      J. Alvin Van Bergh for Meyer Jacobs et al., amici curiæ.

      Roy P. Monohan and Francis L. Field for respondent.

      George R. Fearon for Disabled American Veterans of the World War, Department of New York, amicus curiæ.

   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O'Brien, HubbSj Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York ex rel. John U. Troy, Appellant, against Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    Argued September 30, 1937;
    decided October 19, 1937.

      Clarence W. Nutt and Rolland L. Nutt for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J.,- Lehman, O’Brien, Hubbs, Loeghran, Finch and Rippey, JJ.


text:
    In the Matter of the Construction of the Will of Sarah M. Anderson, Deceased. Richard Tryon, Appellant; Grace A. Daley, Respondent.
    Argued September 30, 1937;
    decided October 19, 1937.

      Mortimer A. Federspiel and Stacy D. Behe for appellant.

      W. Alfred Brim for respondent.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hhbbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of McNeel Marble Company, Appellant, against Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    Argued September 30, 1937;
    decided October 19, 1937.

      Eugene J. Steiner for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Will of William McIntyre, Deceased. Fifth Avenue Bank of New York, as Trustee, Respondent; Willis McIntyre, Appellant.
    Argued September 28, 1937;
    decided October 19, 1937.

      Edwin M. Bourke for appellant.

      Walter Jeffreys Carlin, Pallister Hamilton Feely and Frederick H. Patterson for respondent.
   Order affirmed, without costs; nó opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Accounting of James F. Nugent, as Executor of Joseph Fox, Deceased. James F. Nugent, as Executor, et al., Appellants; Mortimer May, as Special Guardian for Helen G. Fox, an Incompetent Person, et al., Respondents.
    Argued October 1, 1937;
    decided October 19, 1937.

      Walter H. Pickett for Ætna Casualty and Surety Company, appellant.

      Mortimer May, as special guardian, respondent.
   Order affirmed, with costs to respondent payable out of the estate of Joseph Fox, deceased, etc., and question certified answered in the affirmative. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Herbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Accounting of Jacob Gross, as Executor of Sarah Snopek, Appellant; Nathan Snopek, Respondent. Seymour Mork, as Special Guardian for Infants, Appellant.
    Submitted October 1, 1937;
    decided October 19, 1937.

      Nat. C. Helman for Jacob Gross, as executor, appellant.

      Seymour Mork, as special guardian, appellant.

      Paul Abrams and Oscar Levine for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippey, JJ.


text:
    Clara R. Brahdy, Appellant, v. Board of Education of the City of New York, Respondent.
    Submitted October 1, 1937;
    decided October 19, 1937.

      Herman E. Cooper for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Arthur Bainbridge Hoff of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Crossing of James Street in City of Oneida over the Tracks of the New York Central Railroad. New York Central Railroad Company, Appellant; City of Oneida, Respondent.
    Argued October 1, 1937;
    decided October 19, 1937.

      C. D. Phillips for appellant.

      Frank R. Nemeti, City Attorney, for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York ex rel. Vincent De Stefano, Appellant, v. Lewis E. Lawes, as Warden of Sing Sing Prison, Respondent.
    Argued October 1, 1937;
    decided October 19, 1937.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune of counsel), for respondent.

      Vincent De Stefano, in person, for appellant.
   Appeal dismissed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Httbbs, Loughran. Finch and Rippey, JJ.


text:
    City of Schenectady, Respondent, v. James P. Kalteux, Appellant.
    Submitted October 1, 1937;
    decided October 19, 1937.

      James E. O’Loughlin for appellant.

      Thomas W. Wallace, Corporation Counsel, for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J-, Lehman, O’Brien, Htjbbs, Lquqbran, Finch and Rirpby, JJ.


text:
    The People of the State of New York ex rel. Samuel L. Geiselman, Appellant, against William Hunt, as Warden of Attica Prison, Respondent.
    Argued October 4, 1937;
    decided October 19, 1937.

      A. Stanley Copeland for appellant.

      John J. Bennett, Jr., Attorney-General (James P. Cotter of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rifpey, JJ.


text:
    In the Matter of Herbert R. Ebenstein, Appellant, against Louis H. Pink, as Superintendent of Insurance of the State of New York, Respondent.
    Argued October 4, 1937;
    decided October 19, 1937.

      Samuel R. Gerstein and Abraham W. Sereysky for appellant.

      John J. Bennett, Jr., Attorney-General (Paul R. Taylor and Henry Epstein of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran, Finch and Rippey, JJ.


text:
    In the Matter of the Accounting of Manufacturers Trust Company, as Substituted Trustee under the Will of Gertrude S. Baxter, Deceased, Appellant. John P. O'Brien, as Special Guardian of John W. Scully, an Infant, et al., Respondents.
    Argued October 5, 1937;
    decided October 19, 1937.

      Leonard G. Bisco and William J. Granger for appellant.

      John P. O’Brien, as special guardian, respondent.
   Order affirmed, with costs; no opinion.

Concur: O’Brien, Loughran, Finch and Rippey, JJ. Dissenting: Lehman and Hubbs, JJ. Taking no part: Crane, Ch. J.


text:
    In the Matter of Wong Wah Yew et al., on Behalf of Themselves and Other Stockholders of Mun Hey Publishing Co., Inc., Respondents, against Mun Hey Publishing Co., Inc., Appellant.
    Argued October 5, 1937;
    decided October 19, 1937.

      Joseph K. Guerin and Saul S. Myers for appellant.

      Louis J. Naftalison and Joseph A. Sarafite for respondents.
   Orders reversed and motion denied, with costs in all courts, on the ground that the papers show a denial of jurisdictional facts which requires the denial of the motion for a peremptory order of mandamus. (See Matter of Durr v. Paragon Trading Carp., 270 N. Y. 464.) No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Liquidation of the General Indemnity Corporation of America. Superintendent of Insurance of the State of New York, as Liquidator, Respondent; Industrial Commissioner of the State of New York, Appellant.
    Argued October 5, 1937;
    decided October 19, 1937.

      John J. Bennett, Jr., Attorney-General (Paul Balsam, Henry Epstein and Joseph A. McLaughlin of counsel), for appellant.

      Irvin Waldman and Alfred G. Bennett for respondent.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htibbs, Loughran and Finch, JJ. Dissenting: Rippey, J.


text:
    In the Matter of the Estate of Nathan Weiss, Deceased. State Tax Commission, Appellant; Joseph D. Weiss et al., as Executors of Nathan Weiss, Deceased, Respondents.
    Submitted October 5, 1937;
    decided October 19, 1937.

      Harry T. O’Brien, Jr., and Mortimer M. Kassell for appellant.

      Jacob Lichtenstein for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lottghran, Finch and Rippey, JJ.


text:
    The People of the State of New York ex rel. Anatole Lorraine, Appellant, against Lewis E. Lawes, as Warden of Sing Sing Prison, Respondent.
    Argued October 5, 1937;
    decided October 19, 1937.

      Edward T. Tighe for appellant.

      John J. Bennett, Jr., Attorney-General (Patrick H. Clune and Thomas H. McNamee of counsel), for respondent.
   Orders reversed, and matter remitted to the Court of General Sessions of the County of New York to determine upon a proper record whether relator was armed within the meaning of section 1944 of Penal Law at the time of the commission of the felony in question; and relator remanded for resentence. (People v. Caruso, 249 N. Y. 302; People v. Krennen, 264 N. Y. 108.) No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Httbbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York ex rel. Metropolitan Playhouses, Inc., Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Argued October 5, 1937;
    decided October 19, 1937.

      John J. Bennett, Jr., Attorney-General (Harry T. O’Brien, Jr., of counsel), for appellants.

      Samuel S. Allan, Milton C. Weisman and Edmund P. Silver for respondent.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    City of Johnstown, Appellant, v. John B. Wells et al., Defendants, and Merton J. Lesser et al., Respondents.
    Argued October 5, 1937;
    decided October 19, 1937.

      Alfred D. Dennison for appellant.

      Fayette E. Moyer and Sydney G. Rosenthal for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    The People of the State of New York, Respondent, v. Joseph Crauta, Appellant.
    Submitted October 6, 1937;
    decided October 19, 1937.

      Marks Wolff for appellant.

      William Copeland Dodge, District Attorney (LeRoy Mandle of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Ernest J. Pirman et al., Appellants and Respondents, v. Harold T. Confer et al., Respondents and Appellants.
    Submitted October 11, 1937;
    decided October 19, 1937.
   Return of remittitur requested and when returned it will be amended so as to provide that the judgment of the Appellate Division is further modified by reversing that portion thereof as awards costs to the defendants. When this court awarded costs in this court and in the Appellate Division to the plaintiffs, it intended to reverse the award of costs to the defendants in the Appellate Division. (See 273 N. Y. 357.)


text:
    Marian S. Honeyman, Appellant, v. Herbert G. Hanan, as Executor of Herbert W. Hanan, Deceased, Respondent.
    Submitted October 11, 1937;
    decided October 19, 1937.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “A question under the Federal Constitution was duly presented and necessarily passed upon by this court. The plaintiff contended that chapter 794 of the Laws of the State of New York, enacted in 1933, as amended (§§ 1083-a and 1083-b of the Civil Practice Act), impairs the obligations of contracts, and thus violates article 1, section 10, of the Constitution of the United States. This court held that such laws do not violate said provision of article 1, section 10, of the Constitution of the United States.” (See 275 N. Y. 382.)


text:
    Edna M. Penrose, as Administratrix of the Estate of George D. Penrose, Deceased, Respondent, v. Central New York Freightways, Inc., et al., Appellants.
    Submitted October 11, 1937;
    decided October 19, 1937.

      J. Stanley Carter and M. J. Conboy for motion.
    P. C. Dugan and Kenneth J. Dugan opposed.
   Motion denied, with ten dollars costs and necessary-printing disbursements, on the ground that the appeal lies as matter of right, the action of the Appellate Division being one of reversal. (See Dedunak v. N. Y. C. & H. R. R. R. Co., 224 N. Y. 715; Markiewicz v. Thompson, 246 N. Y. 235.


text:
    Doris M. Willcox, an Infant, by Bertram W. Willcox, Her Guardian ad Litem, Appellant, v. County of Erie, Respondent. Bertram W. Willcox, Appellant, v. County of Erie, Respondent.
    Submitted October 18, 1937;
    decided October 19, 1937.

      Harold J. Adams for motion.
    No one opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion, unless appellants file and serve undertaking on appeal and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Al Rosen, Appellant.
    Argued October 5, 1937;
    decided October 22, 1937.

      George H. Rosen and Rose Silverstein for appellant.

      William Deckelman, District Attorney, for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Lohghran, Finch and Rippey, JJ.


text:
    The People of the State of New York, Respondent, v. Edward J. O’Connor, Appellant.
    Argued October 6, 1937;
    decided October 22, 1937.

      Daniel F. Nugent for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Judgments reversed and indictment dismissed on the ground there is no evidence of intent to commit a crime. No opinion.

Concur: Crake, Ch. J., Lehmak, O’Brien, Hubbs, Lottghran, Finch and Rippey, JJ.


text:
    The People of the State of New York, Respondent, v. Samuel K. Nester, Appellant.
    Argued October 6, 1937;
    decided October 22, 1937.

      Leland R. Yost for appellant.

      Nathan D. Lapham, District Attorney (Lyman B. Lewis of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, O’Brien, Hubbs and Finch, JJ. Dissenting: Crane, Ch. J., Loughran and Rippey, JJ., on the ground that the exclusion of the evidence of defendant’s good character was material error.


text:
    Charles G. Voke, Respondent, v. Raymond E. Archer, Appellant.
    Argued October 6, 1937;
    decided October 22, 1937.

      Henry Redman Dutcher and Leonard D. Marafioti for appellant.

      Kenneth B. Keating and John Pallace for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Margaret E. MacNair, Respondent, v. Commercial Travelers Mutual Accident Association of America, Appellant.
    Argued October 6, 1937;
    decided October 22, 1937.

      Henry C. Moses and Charles J. Nehrbas for appellant.

      Joshua D. Jones and Alfred H. Sarno for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ. .


text:
    A. Elting Brayton, as Receiver of Herkimer National Bank, Respondent, v. Rector, Church Wardens and Vestrymen of Christ Church, Herkimer, Appellant.
    Argued October 6, 1937;
    decided October 22, 1937.

      Michael D. Reilly, Dermot C. Reilly and William A. Glenn for appellant.

      James P. O’Donnell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Amelia J. Thompson, Respondent, v. Frank A. Palladino, Appellant. Stanley J. Thompson, Respondent, v. Frank A. Palladino, Appellant.
    Argued October 6, 1937;
    decided October 22, 1937.

      Merton D. Meeker for appellant.

      John J. Donohue and John M. Schneider for respondents.
   In each action, judgment affirmed, with costs; no opinion.

Concur: Grane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Hyman Garfinkel, as Administrator of the Estate of Jerome Garfinkel, Deceased, Appellant, v. Philan Corporation, Respondent.
    Submitted October 6, 1937;
    decided October 22, 1937.

      Julius Blumenfeld and Hilton E. Roberts for appellant.

      James G. Purdy, Arthur K. Wing and John H. Brogan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Turner Construction Company, Appellant and Respondent, v. Rockwood Sprinkler Company of Massachusetts, Respondent and Appellant, Impleaded with Another.
    Argued October 7, 1937;
    decided October 22, 1937.

      J. G. Fink and Harry N. French for plaintiff, appellant and respondent.

      Colley E. Williams and Forbes D. Shaw for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    C. & W. Construction Co., Inc., Respondent, v. Board of Education of City of New York, Appellant.
    Argued October 7, 1937;
    decided October 22, 1937.

      Paul Windels, Corporation Counsel (Oren Clive Herwitz, Paxton Blair and Nelson Rosenbaum of counsel), for appellant.
    I. J. Beaudrias for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs Loughran, Finch and Rippey, JJ.


text:
    Nicholas Budalich, Appellant, v. Baltimore and Ohio Railroad Company, Defendant, and Staten Island Rapid Transit Railway Company, Respondent.
    Argued October 19, 1937;
    decided October 22, 1937.

      Joseph P. Walsh for appellant.

      Harold R. Oakes and Robert Schwebel for respondent.
   Appeal withdrawn upon payment of costs in this court. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of the Claim of Nora Clarkson, Respondent, against J. J. Schmukler et al., Appellants. State Industrial Board, Respondent.
    Submitted October 18, 1937;
    decided October 22, 1937.

      Hector A. Robichon, William W. Dimmick and William J. MacArthur for motion.
    No one opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that appeal lies as of right.


text:
    In the Matter of Peter J. Devine, Appellant and Respondent, against Jacob W. Osmann, Respondent and Appellant, Impleaded with Others.
    Argued October 27, 1937;
    decided October 27, 1937.

      J. Irwin Shapiro for petitioner, appellant and respondent.

      Samuel Weiss for defendant, respondent and appellant.
   (Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Charles Belous, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued October 27, 1937;
    decided October 27, 1937.

      Charles Belous, in person, and Irving Lemov for appellant.

      Paul Windels, Corporation Counsel (Leonard M. Wallstein, Jr., of counsel), for respondents.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Kenneth F. Simpson, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents. Trades Union Party, Intervener, Respondent. In the Matter of Kenneth F. Simpson, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents. Anti-Communist Party, Intervener, Respondent.
    Argued October 27, 1937;
    decided October 27, 1937.

      Gabriel L. Kaplan and Henry G. Van Veen for petitioner-appellant.

      Walter M. Weis for City Fusion Party, intervener, in support of appellant.

      Paul Windels, Corporation Counsel (Leonard M. Wallstein, Jr., of counsel), for David B. Costuma, a member of the Board of Elections of the City of New York, in support of appellant.

      Irving H. Saypol and Leo Kotler for Trades Union Party, intervener, respondent.

      Frederic C. Bellinger for Anti-Communist Party, intervener, respondent.
   In each proceeding: Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran and Rippey, JJ. Dissenting: Hubbs and Finch, JJ.


text:
    In the Matter of Bernard McDonnell, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents, and Isidore Nagler et al., Appellants. American Labor Party, Intervener, Appellant.
    Argued October 27, 1937;
    decided October 27, 1937.

      Walter M. Weis for Isidore Nagler et al., appellants.

      Emil Schlesinger and Matthew M. Levy for American Labor Party, intervener, appellant.

      Paul Windels, Corporation Counsel (Robert H. Schaffer of counsel), for David B. Costuma, a member of the Board of Elections of the City of New York, in support of appellants.

      Walter A. Lynch for petitioner, respondent.

      John J. Bennett, Jr., Attorney-General, for S. Howard Cohen et al., as members of the Board of Elections of the City of New York, respondents.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    In the Matter of Isidore Nagler et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents. American Labor Party, Intervener, Appellant.
    Argued October 27, 1937;
    decided October 27, 1937.

      Walter M. Weis for Isidore Nagler et al., appellants.

      Emil Schlesinger and Matthew M. Levy for American Labor Party, intervener, appellant.

      Paul Windels, Corporation Counsel (Robert H. Schaffer of counsel), for David B. Costuma, a member of the Board of Elections of the City of New York, in support of appellants.

      Walter A. Lynch for Bernard McDonnell, respondent.

      John J. Bennett, Jr., Attorney-General, for S. Howard Cohen et al., as members of the Board of Elections of the City of New York, respondents.
   Order affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran, Finch and Rippet, JJ.


author: Per Curiam.

text:
    William H. Lowe, Respondent, v. Ozias R. Sheldon et al., Appellants, Impleaded with Others.
    Argued October 19, 1937;
    decided November 16, 1937.

      Everett D. Mereness and Milo R. Kniffen for appellants.
    Respondent was not entitled to a personal notice of the tax sale or a personal notice to redeem. (Post v.
      Cowan, 236 App. Div. 26; Sheldon v. Russell, 91 Misc. Rep. 278; Dikeman v. Dikeman, 11 Paige, 484; Hennepin Improvement Co. v. Schuster, 66 Misc. Rep. 634; Mabie v. Fuller, 255 N. Y. 194; Levy v. Newman, 130 N. Y. 11; People v. Moynahan, 148 App. Div. 744; 205 N. Y. 590.) Respondent’s failure to serve notice required by section 139 of Tax Law, prior to amendment, lost his right of redemption. (People v. Moynahan, 148 App. Div. 744; 205 N. Y. 590; Levy v. Newman, 130 N. Y. 11; People v. Carnal, 6 N. Y. 463; Matter of Evergreens, 47 N. Y. 216; Stone v. Flower, 47 N. Y. 566; Amsbry v. Hinds, 48 N. Y. 57; Matter of Miller, 110 N. Y. 216; Walker v. Walker, 155 N. Y. 77; Matter of Andersen, 178 N. Y. 416; Fitzpatrick v. Bolan, 57 N. Y. 433; New York & Oswego Midland R. R. Co. v. Van Horn, 57 N. Y. 473; People v. O’Brien, 111 N. Y. 1; McCahill v. Hamilton, 20 Hun, 388; Reinhardt v. Fritzsche, 69 Hun, 565; Curtis v. Leavitt, 15 N. Y. 9; Dash v. Van Kleeck, 7 Johns. 477; Salters v. Tobias, 3 Paige, 338; Goillotel v. City of New York, 87 N. Y. 441; Dodin v. Dodin, 16 App. Div. 42; 162 N. Y. 635; Stevenson Brewing Co. v. Eastern Brewing Co., 22 App. Div. 523; 165 N. Y. 634.) The Appellate Division erred in the reversal of the judgment of the trial court. (Mabie v. Fuller, 255 N. Y. 194.)

      Sharon J. Mauhs for respondent.
    Since plaintiff was never served with the notice required by section 138 of the Tax Law (Cons. Laws, ch. 60), as amended, his right to redeem was never cut off. (Curtis v. Whitney, 80 U. S. 68; Vance v. Vance, 108 U. S. 514; Fourth Nat. Bank v. Francklyn, 120 U. S. 747; Hamilton Gas Light & Coke Co. v. Hamilton City, 146 U. S. 258; New Orleans Water Works Co. v. Louisiana, 185 U. S. 336; Diamond Glue v. United States Glue Co., 187 U. S. 611; Knoxville Water Co. v. Knoxville, 200 U. S. 22; Reitler v. Harris, 223 U. S. 437; Conley v. Barton, 260 U. S. 677; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; People ex rel. Pincus v. Adams, 274 N. Y. 447; Curtis v. Leavitt,
      15 N. Y. 9.) No contract obligation will be affected by legislation enacted after a tax sale where the county is the purchaser. (State v. Lawler, 53 N. D. 278; Allen v. Peterson, 38 Wash. 599; Sandys v. Robinson, 26 S. D. 281.)
   Per Curiam.

We are in agreement with the Appellate Division in the conclusion which it reached. We are of the opinion, however, that the amendment of section 139 of the Tax Law (Cons. Laws, ch. 60), under the facts of this case, effected a mere change of procedure and was, therefore, constitutional even between private parties. (Cf. Curtis v. Whitney, 80 U. S. 68; Conley v. Barton, 260 U. S. 677.)

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment affirmed, etc.


author: Crane, Ch. J.

text:
    The People of the State of New York, Appellant, v. Percy C. Reed et al., Respondents.

      Argued October 20, 1937;
    decided November 23, 1937.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for appellant.
    The People have the right to appeal to the Court of Appeals. (People v. Kevlon, 247 N. Y. 192; People v. Wolf, 247 N. Y. 189; People v. Zerillo, 200 N. Y. 443; People v. Wilson, 151 N. Y. 403; People v. Drayton, 168 N. Y. 10; People v. Ryan, 274 N. Y. 149.) The People have the right to appeal from the dismissal of the indictment. (People ex rel. Stabile
      v. Warden, 202 N. Y. 138; People v. Ledwon, 153 N. Y. 10; State v. Lee, 65 Conn. 265; People v. Merrill, 156 Misc. Rep. 637; People v. Smith, 172 N. Y. 210.)

      George Morton Levy and Charles R. Weeks for respondents.
    The People have no right to appeal to the Court of Appeals. (People v. Zerillo, 200 N. Y. 443; Webster v. Fall, 266 U. S. 507.) The Appellate Division properly-dismissed the appeal from the order of the County Court dismissing the indictment herein. (People v. Barber, 348 Ill. 40; United States v. Weissman, 266 U. S. 377; People v. Dundon, 113 App. Div. 369; People v. Herbert, 152 App. Div. 579; People ex rel. Newton v. Special Term, 193 App. Div. 463; People v. Grout, 166 App. Div. 220; People v. Merrill, 156 Misc. Rep. 637; People ex rel. Stabile v. Warden, 202 N. Y. 138; People ex rel. Meyer v. Warden, 269 N. Y. 426; People v. Ledwon, 153 N. Y. 10.)
   Crane, Ch. J.

The defendants were indicted for violating the gambling laws. Counts numbered one, two, three and six allege the violation of section 986 of the Penal Law. Count number four alleges violation of section 973; and count number five alleges violation of section 970 of the Penal Law. Section 986 of the Penal Law makes it a misdemeanor for a person: (1) to engage in pool selling or book-making at any time or place; (2) to keep or occupy any place upon public or private grounds with books and papers for the purpose of recording or registering bets or wagers upon the result of any trial or contest of skill of man or beast; (3) to receive or register in any manner whatsoever any money, bet or wagers by or for any other person or to sell pools upon any such result; (4) who, being the owner or occupant of any building or grounds, knowingly permits the same to be used or occupied for any of these purposes, or therein keeps or exhibits any device or apparatus for the purpose of recording bets upon any such result as above stated. This section says that such a person is guilty of a misdemeanor: “ except when another penalty is provided by law, and upon conviction is punishable by imprisonment in a penitentiary or county jail for a period of not more than one year.” Section 973 of the Penal Law makes it a misdemeanor for any corporation or individual to keep a room for gambling or for maldng wagers or bets depending upon lot or chance. Section 970 says that one is guilty of a misdemeanor who is the owner of a place or device or apparatus for gambling, or who allows the room or apparatus to be used for gambling, or engages as game-keeper or dealer in such a game where money or property is dependent upon the result. These latter two counts were said to be inconsistent with the others.

The trial judge seized upon these words: except when another penalty is provided by law,” and discharged these defendants, dismissing the indictment because, he said, sections 990 and 994 of the Penal Law provided another remedy. There is grave doubt about the correctness of this ruling. Section 990 says that a person who wins or loses at play the sum of twenty-five dollars or upwards within the space of twenty-four hours is punishable by a fine of not less than five times the value of the sum or loss to be recovered in a civil action; and section 994 provides that any person who shall pay or deliver any money upon the event of any wager, may sue for and recover the same of the winner or person to whom the same shall be paid, and of the stakeholder or other person in whose hands it is deposited. Forceful argument can be made that these provisions of sections 990 and 994 of limited and special application have not the effect of wiping out completely all the provisions and crimes specified in 986.

The trial judge, in giving this construction to these sections, has really repealed and wiped out most of the laws against gambling found in the Penal Law, and he has done it in a way which has prevented the courts from reviewing his decision. The attorney for the defendants was at least fair in making his motions to dismiss the indictment before testimony was taken so as to give, as he stated, the People a chance to appeal should the court rule against them. He said: “ I am making that motion in some parts slightly prematurely, so that on questions of law, unless this court is inclined to rule with the People, the District Attorney will have an appealable point if he cares to appeal as to any part of the law.”

The trial judge said at the end of the case: The law should be settled fearlessly, courageously, once and for all time as to what the various sections of the gambling law of this State mean and what their implication may be.” Again he said: “ Therefore it appears to me that this case resolves itself almost solely into a question of law.” The judge did not rule upon the motions made by the defendants’ counsel to dismiss the indictment at the beginning of the case or at the end of the People’s case, as he apparently was in grave doubt regarding the law. He did dismiss the indictment on the law at the end of the whole case, without submitting it to the jury. While the defendant under our criminal procedure is entitled to the benefit of every reasonable doubt on the facts, the People should be entitled to any reasonable doubt a trial judge may have upon the law for, if he makes a mistake on the law, the People have no opportunity or method of reviewing his ruling, as strange as it may seem to us in this enlightened day. The defendant, for a wrong ruling, may always appeal the case for review to a higher court; the People have no such privilege, except as hereinafter stated. The trial justices in criminal cases, therefore, should bear this in mind when ruling upon points of law.

The final disposition of this case was made by the trial judge in these words:

As a matter of law Section 986 provides that this action be a misdemeanor, but it also has a proviso except where another penalty is prescribed by law. This exception was added at the same time as Section 17 of the Racing Law and would seem to exempt these defendants from anything more than the penalties prescribed by Sections 990 and 994 of the Penal Law. * * *
“ I am granting this motion to dismiss the indictment against these defendants upon the grounds that these defendants for the acts charged in the indictment are not hable to prosecution under Section 986 as a criminal offense. I am not unmindful of the serious problem this matter has caused this county. These are my honest convictions based upon the law and the facts as they are presented in this matter. Doubtless power lies with the Legislature to amend and clarify these laws so that problems may not again arise.”

The court apparently overlooked the powers of appellate courts under our system of law — both the Appellate Division and the Court of Appeals — to clarify any doubts about the law that may exist in the minds of trial judges. The appellate courts, unfortunately, by the granting of these motions, are barred from review by our anomalous procedure. The motion to dismiss the indictment as not stating a crime under section 986 of the Penal Law, in other words, on the ground that section 986 was meaningless, and that the Legislature had performed a futile act in passing it, presented simply a question of law in the nature of a demurrer to the indictment. The judge reserved decision. The same ruling was made at the end of the People’s case, and, when finally the motion was decided in favor of the defendants in the language above stated, it is apparent, and for the purposes of this opinion we will assume that the judge, in dismissing the indictment, did so because it did not state a crime. Even though the judge was in error in these conclusions what can the appellate courts do about it? Apparently nothing, for reasons which we shall explain.

Appeal to the Appellate Division and to the Court of Appeals is entirely a matter of statute (People v. Zerillo, 200 N. Y. 443). There is no constitutional right to an appeal from a judgment of conviction or of an acquittal or from any ruling of the trial judge. An appeal is a matter of legislative control. Review by the United States Supreme Court of a trial in a State court which deprived a defendant of the equal protection of the laws or of due process is not prevented by failure of the State Legislature to provide an appeal to higher State courts. Nevertheless, as we are dealing solely with a review by the Appellate Division or the Court of Appeals of this State, we must turn to sections 518 and 519 of the Code of Criminal Procedure to see wherein appeals by the People are allowed. Upon a judgment for the defendants on a demurrer to the indictment an appeal may be taken by the People to an appellate court, including the Court of Appeals. (Code Crim. Proc. §§ 518, 519.)

If the defendants had demurred to the indictment in the first place the ruling that the judge made in this case, to the effect that the indictment did not state a crime, could have been reviewed by the Appellate Division and then by the Court of Appeals. A demurrer must be in writing, signed either by the defendant or his counsel and filed. It must distinctly specify the grounds of objection to the indictment or it may be disregarded. (Code Crim. Proc. § 324.) When, therefore, in sections 518 and 519 we find that an appeal may be taken to the appellate courts, first to the Appellate Division and then to the Court of Appeals, from a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, we must give to these words the meaning furnished by the Code of Criminal Procedure in the section referred to, section 324. There was no demurrer in this case, although the motion to dismiss the indictment in reality amounted to the same thing. Under section 331 of the Code of Criminal Procedure an objection that the indictment is insufficient may be taken at the trial under the plea of not guilty, or in arrest of judgment. So far as the language of our Code of Criminal Procedure is taken literally, a ruling of a trial judge dismissing an indictment for insufficiency is not the same as sustaining a demurrer thereto. Our procedure presents this remarkable situation: If a judge dismisses the indictment on motion, before a jury is called, there is no way to review his determination unless we stretch a point and say that such a motion amounts to a demurrer and is in writing when the clerk enters the motion in his minutes. Courts should_not be forced to this artificial interpretation. Likewise, if the case be called and a jury impaneled, and before any testimony is taken the judge of his own motion or upon motion of the defendant dismisses the indictment for insufficiency, there is no possible way of reviewing his decision. We have even become so sensitive to the rights of defendants as to encourage the claim that such a motion made after the drawing of a jury might, if granted, give rise subsequently to a plea of former jeopardy. (People ex rel. Stabile v. Warden, 202 N. Y. 138; People ex rel. Meyer v. Warden, 269 N. Y. 426, 429. See Appeals by the State in Criminal Cases by Justin Miller, 36 Yale Law Journal, p. 486.) Why there should be any constitutional objection in permitting the State to appeal from an order dismissing the indictment upon motion of the defendant after a jury has been impaneled when there is no constitutional objection in arresting judgment on such a motion and permitting an appeal therefrom may not be apparent. However, the question is not presented in this case. An opinion from this court passing upon the law as it is — as we find it in the Code of Criminal Procedure — does not call for or justify any suggestions as to what in our opinion the law should be. Sufficient that the profession should know what the law is upon given facts and what the limitations now are upon the right of appeal by the People.

The order granting the motion, therefore, made at the end of the case dismissing the indictment as being insufficient for the reasons stated, even though error, bars and forecloses the People from appealing to any of the appellate courts. The Appellate Division was, therefore, correct in dismissing the appeal.

Other provisions of sections 518 and 519 have no application to this case. Judgment may be arrested because the facts stated in the indictment do not constitute a crime. (Code Crim. Proc. §§ 331, 467; People v. Wiechers, 179 N. Y. 459, 462.) An appeal from an order of the court arresting judgment may now be taken by the People under section 518 and section 519. There was no judgment in this case and, therefore, no arrest of any judgment. Section 519 provides for an appeal to the Court of Appeals from a judgment affirming or reversing a judgment of conviction. There was no judgment of conviction.

The only remaining subdivison to be considered is subdivision 4 of section 518, which reads: In all cases where an appeal may be taken by the defendant, except where a verdict or judgment of not guilty has been rendered,” an appeal to an appellate court may be taken by the People. Chapter 337 of the Laws of 1927 added this subdivision which at the same time changed the wording of the introductory sentence so as to provide for an appeal “ to an appellate court ” instead of “to the appellate division of the supreme court.”

Confining our analysis of this section to the facts here we may ask: What appeal could be taken by the defendant from a denial of the motion to dismiss the indictment made at the end of the case? He could take no independent appeal from the decision on such a motion; it could only be reviewed by an appeal from the judgment of conviction; if an acquittal he would not need an appeal. I construe these words “ except where a verdict or judgment of not guilty has been rendered ” to mean that in such cases the People have no right to appeal at all. It is difficult to understand what appeal may be taken by a defendant except from a judgment of conviction. (Code Crim. Proc. § 517.) As the section by its terms merely gives the People the same sort of appeal enjoyed by a defendant we are unable to see that it gives anything, as the defendant can only appeal from a judgment of conviction. Whatever these words may mean, I am quite confident that they have no application to this case. In the absence of demurrer all rulings on motions come up with the judgment except those which are made after judgment, pursuant to sections 331 and 467. The defendant has no right to appeal from any incidental motions, with the exception possibly of motions to change the venue. (People v. Hyde, 149 App. Div. 131.) - -■!

If the Legislature by this act of 1927 intended to extend the right of the People to appeal, it should at least be stated clearly enough for the courts to give it meaning. We are unable to find wherein the extension has taken place or to what it applies. The right to appeal should not be left to inference or doubtful interpretation. The District Attorney suggests that this provision may have been intended to give the People the right to appeal from any ruling dismissing the indictment, or ending the case, which has not resulted in an actual acquittal by the jury upon the evidence. If this be the intent of the Legislature we fail to find it in these words, and hesitate to give a construction to them which in reason they do not bear. We must take these statutes dealing with crimes and procedure as they read, giving them a fair interpretation. Until the Legislature has seen fit to make the rights of the People on appeal more explicit and certain we must adhere to the practice as it has been, and rule that none of these provisions of sections 518 or 519 give to the People the right to appeal from the dismissal of the indictment in this case.

We may add that the direction of an acquittal upon the evidence as introduced at the trial'is not the question before us. The direction of such an acquittal or advice to the jury to acquit, resulting in a judgment of acquittal, is a practice which has been followed for many years. (People v. Ledwon, 153 N. Y. 10; People ex rel. Stabile v. Warden, 202 N. Y. 138, 152.) In the view we take of this case the judge did not direct an acquittal, but ruled on the motions to dismiss the indictments for insufficiency and not on the evidence as being insufficient to sustain a good indictment.

For the reasons here stated the order of the Appellate Division should be affirmed.

Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Bippey, J., concurs in result.

Order affirmed.