text:
    In the Matter of the Claim of Carrie B. Bennett, Respondent, against Marine Works, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued March 4, 1937;
    decided April 20, 1937.

      James P. Allen, Jr., Ralph W. Nolan and John P. Smith for appellants.
    The accident did not arise out of and in the course of the employment. (Matter of Heitz v. Ruppert, 218 N. Y. 148; Matter of Chetney v. Manning Co., 273 N. Y. -; Matter of Kowalek v. New York Cons. R. R. Co., 229 N. Y. 489.)

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.
    The accidental injuries resulting in the death of the employee arose out of and in the course of his employment. (Matter of Theyken v. Diplomat Products, Inc., 243 App. Div. 822; 268 N. Y. 658; Matter of Gibbs v. Macy & Co., 214 App. Div. 335; 242 N. Y. 551; Matter of Harby v. Marwell Bros., Inc., 203 App. Div. 525; 235 N. Y. 504; Matter of Goater v. D’Olier, 198 App. Div. 959; Matter of Crowell v. American Fruit Growers, Inc., 253 N. Y. 543; Matter of Jakeway v. Bauer Co., 218 App. Div. 302; Matter of Harvey v. Bakers & Consumers Compressed Yeast Co., 244 App. Div. 838.)
   Finch, J.

Frank C. Bennett, the husband of the claimant, was employed by the defendant, the Marine Works, Inc., as an outside salesman, estimator and supervisor of repairs. His work involved visiting ships at docks in New York, Philadelphia and other cities. The company paid Bennett’s traveling and entertainment expenses, but he paid for his own commutation ticket on the Lackawanna Railroad between East Orange, where he lived, and New York city, where the employer’s office was located. He had no regular hours of employment, and did not have to report to the office of the employer before commencing work. When he reported to the office he normally would take a train which left East Orange after eight A. M. On the morning of the accident he left his home planning to take a train which was to leave shortly after seven a. m. and go directly to a ship docked in Brooklyn to supervise the installation of a food chopper. At the East Orange railroad station he was struck and killed by a train. The Industrial Board found that he was in the course of his employment at the time of the accident, and granted an award. The Appellate Division has affirmed unanimously.

The appellants contend that the deceased did not enter into the course of his employment until he deviated from the usual route which he would take in going to the New York office, or, at least, until he reached the New York city station of the Lackawanna Railroad.

The rule that employees do not enter into the course of their employment until they reach the premises or the entrance to the premises of their employer of necessity has been subject to exceptions. Distinction has been made between employees whose work is done on the premises, or so-called' inside employees, and outside employees, whose work is of such nature that they have no fixed place in which their work is done. Examples of the latter are traveling salesmen, collectors and solicitors. Naturally, such employees spend considerable of their time in traveling from customer to customer. When injured in so doing, it cannot be said that they are not in the course of their employment. Following the liberal approach in dealing with this branch of the law, the decisions have gone further and have held that employment begins when travel from home towards the first customer commences. So such employees, if they are not required to report first to the office of their employer, are held to be within the course of their employment from the time they leave their home, or the place where they passed the night, with the intention of going directly to visit a customer.

In Harby v. Marwell Bros., Inc. (203 App. Div. 525; affd., 235 N. Y. 504), it was held that a traveling salesman, who was injured on the way from his home to the station, was in the course of his employment. Similarly, awards have been affirmed where a salesman was killed while on the way from his home to telephone to a prospective customer (Matter of Ryan v. Cole, Inc., 266 N. Y. 561), and where a salesman was killed en route from his home to his office with a package belonging to his employer. (Matter of Harvey v. Bakers & Consumers C. Y. Co., 244 App. Div. 838; leave to appeal denied, 268 N. Y. 725.) Compensation also has been granted in the converse situation where salesmen were on their way home from visiting customers, or from the office of their employer. (Matter of Theyken v. Diplomat Products, Inc., 268 N. Y. 658. Cf. Matter of Fronce v. Prosperity Co., 255 N. Y. 613; Matter of Faulkner v. Stratton-Amsterdam Corp., 245 N. Y. 542.)

Inside employees are held to be in the course of their employment while on the way to work if they have been instructed by the employer to perform an errand before reporting at the office or factory, but such employees would not seem to enter into the course of their employment until they deviate in the performance of such an errand from the usual route followed in going to the place of employment. (Matter of Schwimmer v. Hammerman & Kaminsky, 262 N. Y. 104. See Matter of Marks v. Gray, 251 N. Y. 90; Matter of Carroll v. Verway Printing Co., 254 N. Y. 598.) The rule for inside employees cannot be applied fairly to outside employees who have no fixed place of employment to which they report daily, and accidental injuries to such employees are compensable if they occur after they start out with the intention of going directly to the place where they will engage in their work, unless the accident occurs before they leave their home. (Matter of Turner v. Cathedral Pub. Co., 268 N. Y. 656; Matter of Tafft v. Stafford, 266 N. Y. 555.)

In Matter of Freudenfeld v. Stein & Co. (271 N. Y. 548), relied upon by the appellants, the claimant was injured while going from his home to New York city. On conflicting testimony as to where he planned to go upon arriving in New York city, the Industrial Board made findings that he was not within the course of his employment at the time of the accident, and since there was some evidence to support such findings, the Appellate Division and this court affirmed. In Matter of Chetney v. Manning Co. (273 N. Y. 82) the Industrial Board denied an award on the ground that the claimant was not in the course of his employment since the accident occurred while the claimant was making a trip in his own personal interests. This court set aside a reversal by the Appellate Division (246 App. Div. 870) since the findings of fact of the Industrial Board had some support in the evidence and, therefore, were binding upon the Appellate Division.

In the case at bar the Industrial Board has found in favor of the claimant. The deceased was an outside employee, with no fixed place of employment, his work taking him to docks in New York city, Bhiladelphia and other cities. He did not report to the office of the employer before commencing work. Under such circumstances, we cannot disturb the finding of the Industrial Board that he was within the course of his employment at the time of the accident, which occurred while he was en route from his home to a dock in Brooklyn.

The order should be affirmed, with costs.

Crane, Ch. J., Lehman, O’Brien, Htibbs, Lottghran and Rippey, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Fox Film Corporation, Appellant, v. Jack W. Springer et al., Doing Business under the Firm Name of Springer & Cocalis, Respondents.
    Argued March 17, 1937;
    decided April 20, 1937.

      Louis Nizer and Robert S. Benjamin for appellant.

      William D. Whitney, Bruce Bromley, Albert R. Connelly and John H. Morse for respondents.
   Lehman, J.

The plaintiff corporation is engaged in business as a distributor of motion pictures. The defendants operate a circuit or chain of theatres. In 1934 the plaintiff entered into a written contract with the defendants whereby, among other things, the defendants agreed to display fifty-eight films released by the plaintiff for distribution and to pay for each picture a fixed license fee. In addition the contract provided: “ On six pictures allocated by Fox, Fox is to received [sic] 50% overage after the theatre has received as 50% profit what Fox receives as film rental. Expenses are to be on the basis of 1/10 week days, 2/10 Saturday, and 3/10 Sunday. These 6 pictures are to be played 3 or 4 days for week ends depending on the house policy.” The plaintiff has brought an action to recover moneys alleged to be due from the defendants upon two pictures “ allocated ” by the plaintiff, pursuant to this clause of the contract. The complaint has been dismissed on the ground that the contract requires “ accountings upon six pictures as one group,” and consequently no recovery can be had in this action, based upon failure to pay “ overage ” on separate pictures.

The plaintiff admits that the fixed license fee on each picture, denominated in the complaint as the “ minimum guaranteed license fee,” has been paid. The defendants do not dispute that they have paid to the plaintiff no part of the profits or of the “ overage ” derived from the display of any of the pictures “ allocated ” by the plaintiff. The controversy between the parties is upon the narrow question of whether “ overage ” is to be calculated upon all six pictures as a group so that the amount due can be determined only by an accounting, upon which losses sustained in the display of one picture might be offset against profits derived from display of another, or whether the plaintiff is entitled to a share of the profits derived from the display of each picture as soon as the display of that picture is completed.

The contract between the parties consists, physically, of a printed form of the plaintiff company and typewritten clauses, in part inserted in the printed form and in part attached thereto. We have quoted in full the clause upon which the plaintiff’s claim is based. Though the parties disagree as to whether under that clause “ overage ” is payable upon each separate picture or upon the six pictures regarded as a group, they agree that the clause means that the defendants must pay to the plaintiff the excess of one-half of the gross receipts derived from exhibition of these pictures, either separately or as a group, after deducting the expenses of the production and one-half of the minimum guaranteed license fee upon those pictures. The parties who made the contract presumably understood the meaning of the words they used. In this clause and, indeed, throughout the contract in both its typewritten and its printed clauses, words and phrases are used which may be understood by those engaged in the business or art of motion picture production, distribution and exhibition, but which convey no meaning to those who are not initiated into the mysteries of the craft. We accept the meaning which the parties agree the words were intended to have. We, are without guide in arriving at the construction of the words where there is disagreement between the parties as to the meaning they were intended to convey.

Terms in common use in a business or art may acquire a definite meaning understood by those who use them in connection with that business or art. In construing contracts the courts endeavor to arrive at the meaning intended by the parties. The courts endeavor to apply the definitions accepted by both parties though such definitions may be unknown to lexicographers. The parties may if they choose use their own special dictionaries, but when they ask the uninitiated to construe their contracts they must furnish them with the dictionaries they have used.

They have not done so in this case. We are told by the appellant that clauses in the printed form must be read with the typewritten “ overage ” clause and that when these clauses are read together the conclusion is inevitable that the parties intended that “ overage should be calculated and paid on each motion picture separately. We are told by the respondent that the printed clauses apply only to payments of the fixed license fees and were never intended to refer to payments stipulated under the “ overage ” clause and that the construction placed upon that clause by the courts below is fair and equitable. The parties have used language understood, we must assume, by those cognizant of the special or technical meaning of words used in the profession or art of the parties. In that language we are illiterate. It may be that, after explanation of the meaning of the terms used throughout the contract, the contract would clearly show whether the parties intended that overage ” on each picture should be paid as soon as the display of that picture is completed, or intended that payment should await an accounting in regard to all six pictures. To find out that intent from the language used the court must place itself in the position of the parties when they made the contract. It must be informed of the meaning of the language as generally understood in that business, in the light of the customs and practices of the business. It must be made literate in a language in which it is now unschooled.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Richard C. Robinson, Appellant.

      Argued March 9, 1937;
    decided April 20, 1937.

      John W. Hollis and Alman W. Burrell for appellant.

      Arthur G. Adams, District Attorney, for respondent.
   Lehman, J.

Prior to September, 1934, the defendant, as the managing partner of a firm consisting of his wife and himself, was engaged, in the city of Ithaca, with branch offices in other places, in the business of buying and selling securities on commission and for the account of his firm. A client, Mrs. Juanita B. Bates, intrusted to him possession of certificates for 857 shares of stock which she had previously purchased upon the advice of the defendant and through the medium of the defendant’s firm. In August, 1934, she authorized the defendant to sell the stock. Pursuant to her directions the stock was sold. About that time the defendant organized a corporation to conduct the business previously carried on by the defendant’s firm. The proceeds of the sale of Mrs. Bates’ stock were retained and used by the corporation in its business. In October, 1935, the Attorney-General obtained a temporary injunction restraining the corporation from continuing business. A receiver of the corporation was appointed. Thereafter upon the complaint of Mrs. Bates the defendant was indicted upon a charge of larceny of her stock or of its proceeds. At the trial of the indictment, he was convicted of larceny in the- first degree.

The complaining witness testified that she directed the plaintiff to use the proceeds of the sale of her stock for the purchase of 540 shares of Empire Capital Corporation Class A stock. The defendant testified that the complaining witness authorized him to use the proceeds for the purchase of 41 shares of the preferred stock of the corporation which he was then forming to conduct his business. A certificate for 41 shares of such stock was filled out but never delivered to the complaining witness. The defendant claims that he retained the certificate in his possession at the request of the complaining witness and for her convenience. The complaining witness thereafter received each quarter a check for a dividend of $82- and gave a receipt for such dividends. The complaining witness testified that she believed that the checks represented dividends upon the Empire Capital Corporation stock which she claims she directed the defendant to purchase for her account. The testimony of the defendant, if accepted, would lead to the conclusion that the checks represented quarterly dividends of two per cent upon 41 shares of the preferred stock of the Robinson corporation, which issued the check, and that the complaining witness in giving receipts for the quarterly dividend checks for $82 was apprised of that fact.

Careful scrutiny of the record reveals some inconsistencies and improbabilities in the testimony both of the complaining witness and of the defendant. The jury had the task of searching out the truth, and the task in this case was certainly not easy. Its verdict of guilty is conclusive, if no errors at the trial tended to deprive the defendant of his right to a fair trial before an unbiased jury passing upon competent testimony. Without further analysis of the testimony, we, therefore, proceed to consider some of the alleged errors.

The defendant was called upon to meet the single charge of larceny of specific stock or its proceeds. It may be that at a trial in the city of Ithaca, the members of the jury may have known that the business of the defendant in that city had been closed by a temporary injunction obtained by the Attorney-General of the State and that a receiver was in possession of the business. Probably, too, any effort to keep out of the record incidental allusions to these facts would have been a futile gesture; they were too closely connected with the complaint against the defendant. Nevertheless, allusion to such facts might tend to becloud the issue upon which the defendant had a right to be heard and prejudice the accused in his defense. He could not upon this trial present proof in vindication of the honesty of his general business career or in challenge of the justice of the order which resulted in closing his business; yet knowledge that he was charged by the State not merely with the specific crime for which he was on trial but also with a general course of dishonest practices and even crimes, would almost inevitably influence the judgment of the jurors in their consideration of the evidence of the guilt of the specific crime. In such circumstances it was the duty of the District Attorney, as well as the court, to be vigilant in excluding at the trial, so far as they could, all prejudicial reference to matters which were extraneous to the charge and which could not become the subject of inquiry at the trial.

Mrs. Bates, the complainant, was the first witness for the prosecution. On her direct examination she was asked whether she ever knew of the defendant’s claim that she was the owner of R. C. Robinson Securities stock until she came into the office of the corporation after it was closed.” That reference to the closing of the office was perhaps not improper and may even have been necessary for the development of a connected story. The defendant’s counsel made no objection to it and on cross-examination of the same witness, he himself asked the question, “You say you were down at Mr. Robinson’s office after the office was closed?” and then followed up that question with other questions intended to bring out that at that time she had given to the receiver of the corporation a memorandum of her claim against the defendant inconsistent with her complaint before the grand jury or her testimony at the trial. Incidentally, she voluntarily interjected a statement that I think Mr. Shea was around there.” Then the following questions were asked by the defendant’s counsel and answered by the complaining witness: “ Q. Was he employed by Mr. Robinson? A. No, sir. He was investigating things I guess. Q. When did you see Mr. Shea first? A. I did not talk with him but I later learned he was there. Q. When did you first talk with Mr. Abramson? A. When he came to my house and asked me to discuss the matter with him.”

Thereafter the District Attorney called as witnesses Mr. John D. Shea, an accountant retained by the office of the Attorney-General to make an investigation of the affairs of the defendant’s corporation, and Bernard Abramson, an attorney at law holding the position of senior securities accountant in the civil service of the State of New York and attached to the Department of Law, Bureau of Securities. Mr. Shea has, so far as appears, no personal knowledge concerning any matter relevant to the charge against the defendant. He was not questioned concerning such matters. He was questioned concerning the result of his investigation of the affairs of the corporation. He was asked: “ Will you state what you discovered in reference to the books of the R. C. Robinson Corporation by this check-up?” and when objection to that question was sustained he was asked: Can you point out any irregular thing you discovered?” These questions were patently improper. The trial judge sustained objections to all such questions and thus prevented the witness from giving some incompetent evidence, but he could not prevent the District Attorney from posing questions which suggested to the jury that the accountant was ready to point out “ irregular things ” discovered in his investigation; nor could the trial judge prevent the witness from injecting a statement that an injunction had been granted by the court, though he struck out the statement upon the motion of the defendant.

The District Attorney defends the questions put and the answers elicited, on the plea that the cross-examination of Mrs. Bates by the defendant’s attorney had opened wide the door for the admission of evidence concerning the closing of the defendant’s business and the investigation of its affairs. We have set forth verbatim that part of the cross-examination upon which the District Attorney rests his contention. No analysis or argument is needed to show that it presents no justification for the introduction of the evidence which the District Attorney sought to elicit. The cross-examination by defendant’s counsel referred to the closing of the office and the appointment of a receiver merely for the purpose of fixing the time and showing the nature of the statement of the complaining witness made to the receiver which tended to impeach her credibility. The questions were not calculated to elicit information as to the circumstances under which the office was closed and the receiver appointed or as to the result of the investigation of defendant’s business. They did not in any manner open the door for the introduction of evidence on such extraneous matters. In the heat and excitement of a trial a District Attorney may easily be led by excess of zeal to ask questions which are incompetent. The fault may be slight and usually by correct rulings the trial judge can protect the accused from harm. Upon the examination of the witness Shea, the trial judge ruled correctly upon every objection and though he could not by his rulings give complete protection to the defendant, probably the defendant was not seriously prejudiced by questions asked or statements interjected upon that examination.

More serious harm resulted from the examination of the witness Abramson. As we have pointed out, he is an attorney, appointed senior securities accountant after passing a civil service examination and attached to the Department of Law. A jury might reasonably be impressed by his qualifications and give weight to his opinions. He was asked: Did you examine the books of the Robinson corporation] with reference to the Juanita B. Bates account?” To that question he gave the answer, That was one of the various larcenies uncovered.” Promptly the attorney for the defendant moved for a mistrial and to have the statement striken out. The trial judge refused to grant a mistrial, but stated: Gentlemen of the jury, the answer not coming by reason of any question of the District Attorney, I shall instruct you gentlemen to disregard the statement made from the witness stand as to what the investigation revealed as an expression of opinion on his part only, and not evidence, and nothing with which you have anything to do, and that you confine your deliberations and thought with the questions that appear on the transaction of Mrs. Bates.”

The Appellate Division found errors in the record but affirmed the judgment under section 542 of the Code of Criminal Procedure. In commenting on the statement volunteered by the witness Abramson, the court said: These tactics are to be severely condemned on the part of a civil service employee of the State of New York, testifying in a court of justice, and especially when that particular witness happens to be an attorney and counselor at law.” (249 App. Div. 913.) We agree with the Appellate Division in its criticism of the witness, and after study of the record we are constrained to the conclusion that the right of the defendant to a fair trial was so prejudiced that the failure of the trial judge to grant the motion for a mistrial constitutes error which cannot be disregarded under section 542.

An accused is entitled to a fair trial. Our rules of law are intended to guarantee to him that right and to afford him protection agamst its invasion. Invasion of that right by erroneous ruling of a trial judge may be corrected by appeal; invasion of the right by misconduct of an attorney or witness or by the word or act of any other person, which does not constitute an error of law reviewable upon appeal, can be corrected only by motion for a mistrial. Ordinarily the granting or denial of the motion rests within the sound discretion of the judge to whom the motion is addressed. Presiding at the trial, hearing the statement of the witness upon which the claim of prejudice is based, he is in a better position to determine whether for the protection of the accused a halt should be called upon the pending trial and a new trial ordered. Denial of the motion constitutes no legal error unless it conclusively appears that the accused has been irretrievably prejudiced by what has occurred at the pending trial.

Certainly the rights of the defendant in this case have been irretrievably prejudiced if the jury was influenced by the statement of the witness that the matter for which the defendant was on trial was merely “ one of the various larcenies uncovered ” by the investigation made at the instance of the Attorney-General by the senior accountant attached to his staff. If the jury had been permitted to consider that testimony and had not been admonished to disregard it, the conclusion would be ineluctable that the jury would naturally be influenced by that statement. The decisive question in this case then is reduced to this: Can it be said reasonably that the admonition of the court removed the influence which otherwise the statement of the witness would naturally have had?

The incompetent questions put to the witness Shea concerning “ irregularities ” uncovered by Shea’s “ investigation ” must have, at least, given to the jurors a suspicion that such irregularities existed even though the trial judge sustained objections to the questions. The minds of the jurors were thus prepared for the revelation that there were not only irregularities but “ various larcenies uncovered.” Admonition to disregard evidence which is stricken out is easy to give and hard to follow. Judges trained by years of experience to base decision solely upon competent evidence contained in the record are not always completely confident of their ability to disregard and remain uninfluenced by information, or even impressions, conveyed to them dehors the record. The trial judge could not by admonition cause the jurors to forget what they had been told nor could he eradicate the impression that the defendant by objections was successfully excluding proof that the defendant habitually committed larceny. It is impossible to say that it did not influence the verdict.

We have said recently: “ We must give to any defendant the right to be tried for the crime with which he is charged, and upon evidence proving or tending to prove that crime, uninfluenced by irrelevant facts and circumstances which tend to prejudice or mislead the jury. Issues must be left clear, not smothered or in a haze.” (People v. Posner, 273 N. Y. 184, 190, opinion by Crane, Ch. J.) Without fault of the trial judge, through the impulsive or perverse statement of a witness, the defendant has been deprived of the right which we have said we must give to any defendant. When that occurred there was no room for the exercise of discretion by the trial judge. In moving for a mistrial under these circumstances, the defendant was vindicating a right, not asking for a favor.

At the new trial the District Attorney will doubtless again offer in evidence the stub of check No. 2928 with its notation “ 540 Empire.” The notation is not a record of any act, transaction, occurrence or event * * * made in the regular course of any business ” which is admissible in evidence under section 374-a of the Civil Practice Act. If made by direction of the defendant or with his knowledge it would be persuasive evidence of guilt. If made without his knowledge it has no probative force. We need not now determine whether there is in this record any evidence that it was made by the defendant’s direction. Doubtless upon a new trial that point will be made clearer.

The judgments should be reversed and a new trial ordered.

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

Judgments reversed, etc.


text:
    The City of New York, Appellant, v. Thomas E. Murray, Jr., as Receiver of Interborough Rapid Transit Company et al., Respondents.
    Argued March 10, 1937;
    decided April 20, 1937.

      Paul Windels, Corporation Counsel (Joseph L. Weiner and Herman Horowitz of counsel), for appellant.

      J. Osgood Nichols and Charles Franklin for respondents.
    Chapter 431 of the Laws of 1926 specifically requires the city “ to provide ” for the relocation of and “ to place underground ” the power cables. (Matter of Central Hudson G. & El. Corp. v. Morgenthau, 234 App. Div. 530; 259 N. Y. 569; Ware v. Gay, 28 Mass. 106; Manhattan Ry. Co. v. Mayor of City of New York, 89 Hun, 429; Mayor of City of New York v. Manhattan Ry. Co., 143 N. Y. 1.)
   Lehman, J.

The Legislature, by chapter 431 of the Laws of 1926, has authorized the city of New York, “ acting by its board of estimate and apportionment and with the approval of the transit commission,” to acquire by condemnation the right to remove the structure and appurtenances, constituting what is known as the Thirty-fourth Street spur, of the elevated railway line owned by the Manhattan Railway Company and leased to the Interborough Rapid Transit Company. Expressly excluded from the authority to condemn are rights, easements, franchises, elevated railroad structures, tracks, stations, platforms, stairways and appurtenances * * * which the transit commission may determine necessary for the maintenance and operation of the Second and Third Avenue elevated railroad systems.” The statute, in section 2, makes provision for the removal, by the President of the borough of Manhattan, of the structure and appurtenances condemned by the city, but again there is express exception in the statute of the property, rights, easements and franchises of the Second and Third Avenue Elevated Railroad System as now constructed or modified, pursuant to this act.”

The order of the Transit Commission, approving the city's exercise of authority to condemn the elevated railway structure, provides that this approval shall not be deemed to extend to the condemnation of the right to remove the four stairways at the four corners of Third Avenue and 34th Street, two stairways, one each on the northwest and southeast corners of Second Avenue and 34th Street, the substation located at Nos. 237-241 East 34th Street, and the power cables leading from it to the Second and Third Avenue elevated structures, which said power cables are to be relocated in subsurface duct lines, and the structures and platforms at Third Avenue and at Second Avenue necessary for the support and service of the respective main line tracks, which are hereby determined necessary for the maintenance and operation of the Second and Third Avenue Elevated Railroad Systems.” The President of the borough of Manhattan has notified Interborough Rapid Transit Company and Manhattan Railway Company of his intention to demolish the condemned railway structure and that the companies are required to remove the power cables from the structure and to place them in subsurface ducts. The companies refused, claiming that the duty to move and relocate the cables is imposed, under the statute, upon the city. Then the parties submitted the controversy to the Appellate Division upon an agreed statement of facts. That court has determined that the statute places upon the city the duty to remove the cables and to relocate them.

The power cables remain the property of the railway companies after removal and relocation. They are not appropriated by the city because the Transit Commission has determined, pursuant to the terms of the statute, that they are necessary for the maintenance and operation ” of the elevated railway system. The Legislature did not overlook the fact that the removal of structures condemned by the city, under authority conferred by the statute, might necessitate alteration in structures not condemned and relocation of power cables necessary for the operation of the railway system. In section 4 of the statute, authorizing the condemnation, the Legislature made provision for the alteration of structures and the relocation of power cables made necessary by the removal of the condemned structures. Any duty which may have been imposed by the Legislature upon the city in connectian with such alteration or relocation must be found in the language of that section.

That section provides that: The board of estimate and apportionment shall have authority, subject to the approval of the transit commission, to determine whether the condemnation and removal of the elevated railroad structure under authority of this act will render it necessary to strengthen or provide new supports to the elevated railroad structure not condemned, to relocate or modify stairways, approaches, supports and station facilities and to provide for the relocation of and where necessary to place underground the existing power cables for purposes similar to those for which they are now used or the necessary alternative power transmission, and if said board shall determine that the removal of the elevated railroad structure condemned pursuant to the provisions of this act will render it necessary to strengthen or provide new supports; to relocate or modify stairways, approaches, supports and station facilities and to provide for the relocation of and where necessary to place underground existing power cables for purposes similar to those for which they are now used, said board, subject to the approval of the transit commission, shall approve plans therefor and said plans, when approved by said board and by said transit commission shall be authority for the construction and maintenance of the new structures and supports shown thereon; but the approval of such plans shall not be prerequisite to the right to condemn hereby granted nor shall such approval be binding upon the court in determining, for the purposes of estimating the damages, the changes, alterations or improvements to the elevated railroad structures not condemned, made necessary by the removal of the elevated railroad structures condemned.”

It is said that under the wording of the section, the city is required “ to provide ” for the relocation of and to place underground ” power cables. The statute authorizes the Board of Estimate and Apportionment, subject to the approval of the Transit Commission, “ to determine whether the condemnation and removal of the elevated railroad structure under authority of this act will render it necessary * * * to provide for the relocation of and where necessary to place underground the existing power cables for purposes similar to those for which they are now used.” If said Board shall determine that the removal of the elevated railroad structure * * * will render it necessary * * * to provide for the relocation of and where necessary to place underground existing power cables,” then the duty is imposed upon the Board, not to relocate and place underground the existing power cables, but only to approve plans therefor; and such plans, when approved by the Board and by the Transit Commission, then become authority for the construction and maintenance of the new structures and supports shown thereon.

Only by ruthless excision of the words “ to provide for the relocation of and where necessary to place underground the existing power cables ” from the context in which the words are twice used can this section be construed as imposing upon the city the duty or even the authority to do the work itself. The purpose of the section is clear. It is solely to provide for approval by the Board of Estimate and the Transit Commission of plans for changes in existing railway structures as a condition precedent to “ the construction and maintenance of the new structures and supports shown thereon.” Construe-, tian as well as maintenance of railroad property remains both the duty and the right of the railroad company. Nothing contained in section 4 of the statute removes the limitation upon the right or duty, conferred by section 2 upon the President of the borough of Manhattan to take possession of and to remove railroad structures from the streets excepting “ property, rights, easements and franchises of the Second and Third Avenue Elevated Railroad System as now constructed or modified, pursuant to this act.”

Any doubt which might possibly exist as to this construction of the statute is removed by the final clause of section 4. There the Legislature has recognized that the cost of changes in structures not condemned by the removal of structures condemned should be included in estimating damages caused by the condemnation, yet that the approved plans for the construction of new structures may include elements which are not in fact changes, alterations or improvements * * * made necessary by the removal of the * * * structures condemned.” For that reason it has provided that the approval of such plans shall not be binding upon the court in * * * estimating the damages.” Under the construction urged by the respondents, that provision would have little if any practical effect.

For these reasons the judgment of the Appellate Division should be reversed, without costs, and judgment directed in favor of the plaintiff declaring that defendants are required “ to cause the said power lines to be relocated and are to bear the cost and expense thereof in the first instance, the ultimate disposition of such cost and expense to be determined in the condemnation proceeding.”

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

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. John H. Becker, Appellant.
    Argued November 23, 1936;
    decided December 31, 1936.

      Harry Gittleson and Sol. A. Klein for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Judgments reversed and new trial ordered. The inconsistencies in the People’s evidence and the unexplained omissions are so unsatisfactory that we are of the opinion that the defendant has not been proved guilty beyond a reasonable doubt. No opinion.

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


text:
    Camille Geary, Respondent, v. John R. Geary, Appellant. Caruthers Ewing, as Receiver, Respondent.
    Argued November 16, 1936;
    decided December 31, 1936.

      Carroll G. Walter and James Lee Kauffman for appellant.

      Edward D. Bolton for Caruthers Ewing, as receiver, respondent.
   Appeal dismissed, with costs, on the ground that the order is interlocutory. No opinion.

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


text:
    New York Title and Mortgage Company, by George S. Van Schaick, as Superintendent of Insurance, Appellant and Respondent, v. Irving Trust Company, Respondent and Appellant.
    Argued November 16, 1936;
    decided December 31, 1936.

      Lawrence S. Greenbaum, Theodore S. Jaffin and Benjamin Kaplan for plaintiff, appellant and respondent.

      William A. Onderdonk, Henry T. Hall and Paul E. Mead for defendant, respondent and appellant.
   Order affirmed, without costs. On plaintiff’s appeal, question certified answered in the negative. On defendant’s appeal, questions certified answered in the affirmative. No opinion.

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


text:
    Blair S. Williams et al., Copartners under the Firm Name of Rhoades, Williams & Company, Appellants, v. The State of New York, Respondent.
    (Claim No. 23664.)
    Submitted November 20, 1936;
    decided December 31, 1936.

      Francis N. Bangs for appellants.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden and Caleb Candee Brown, Jr., of counsel), for respondent.
   Judgment affirmed, with costs, on the authority of Vaughan v. State of New York (212 N. Y. 102).

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


text:
    Willard U. Taylor, Individually and as Surviving Partner of the Firm of MacFarland, Taylor & Costello, Respondent, v. Public Industrials Corporation, Appellant.
    Argued November 23, 1936;
    decided December 31, 1936.

      R. Randolph Hicks for appellant.

      Stephen Callaghan and Ernest A. Fintel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Nicholas Malavassi, Appellant. The People of the State of New York, Respondent, v. Joseph Romano, Appellant. The People of the State of New York, Respondent, v. George Stoddard, Jr., Appellant.
    Submitted November 23, 1936;
    decided December 31, 1936.

      Louis Baron and Henry Klauber for appellants.

      Thomas J. Walsh, District Attorney (Thomas K. Hall of counsel), for respondent.
   In each case, order affirmed; no opinion.

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


text:
    Israel M. Coleman, Respondent, v. Cating Rope Works, Inc., et al., Appellants.
    Submitted November 23, 1936;
    decided December 31, 1936.

      Samuel J. Worms and Philip Frank for Cating Rope Works, Inc., et al., appellants.
    . David Gorfinkel and Ulysses S. Adler for E. Rabinowe & Co., appellant.

      Lowen E. Ginn and Stephen Holden for respondent.
   Appeal dismissed, with costs, on the ground the order is not final. No opinion.

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


text:
    The People of the State of New York ex rel. Cooper Union for the Advancement of Science and Art, Respondent, v. James J. Sexton et al., Constituting the Board of Taxes and Assessments of the City of New York, Appellants.
    Argued November 23, 1936;
    decided December 31, 1936.

      Paul Windels, Corporation Counsel (William C. Chanler and William S. Gaud, Jr., of counsel), for appellants.

      John W. Davis, Tom Garrett, James A. Sweet and Edward C. McLean for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Mary V. Love, as Administratrix of the Estate of Timothy A. Love, Appellant, v. The Baltimore and Ohio Railroad Company, Respondent.
    Argued November 24, 1936;
    decided December 31, 1936.

      John Van Voorhis for appellant.

      William C. Combs for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and new trial granted, with costs to abide the event. We are of the opinion that the evidence presented a question of fact for the jury. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Alfred Volckmann, Appellant.
    Argued November 24, 1936;
    decided December 31, 1936.

      Clermonte G. Tennant for appellant.

      John C. Welsh, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Janet C. McIntosh, an Infant, by Drew W. McIntosh, Her Guardian ad Litem, Respondent, v. County of Jefferson et al., Appellants. Drew W. McIntosh, Respondent, v. County of Jefferson et al., Appellants. Edith B. McIntosh, Respondent, v. County of Jefferson et al., Appellants. Elizabeth J. McIntosh, an Infant, by Drew W. McIntosh, her Guardian ad Litem, Respondent, v. County of Jefferson et al., Appellants.
    Argued November 24, 1936;
    decided December 31, 1936.

      John H. O'Brien for County of Jefferson, appellant.

      Ellsworth J. Carter for Town of Clayton, appellant.

      Melvin F. Kinkley and Norman F. Ward for respondents.
   In each case, order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Royal Italian Government, Appellant, v. International Committee of Young Men’s Christian Associations, Respondent.
    Argued November 24, 1936;
    decided December 31, 1936.

      Borris M. Komar for appellant.

      Raymond M. White and Harry A. Bostrom for respondent.
   Judgment affirmed, with costs; no opinion. (See 273 N. Y. 509.)

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


text:
    Selena L. Bloch et al., as Executors of Bert K. Bloch, Deceased, Respondents, v. Frankfort Distillery, Incorporated, Appellant.
    Argued November 25, 1936;
    decided December 31, 1936.

      Peter F. McAllister and Frank A. Clary for appellant.

      S. John Block for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crake, Ch. J., Lehman, O’Brien, Hijbbs, Crouch, Loughran and Finch, JJ.


text:
    John Stelbuszeski, Respondent, v. Benjamin B. Wesley, Appellant.
    Submitted November 30, 1936;
    decided December 31, 1936.

      Philip Silver and Benjamin B. Wesley (in person) for appellant.

      Francis A. McAnaney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Irving U. Scott, Appellant, v. Henry A. Palmer, Respondent.
    Argued November 30, 1936;
    decided December 31, 1936.

      H. C. Stratton and Ralph W. France for appellant.

      Willard R. Pratt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Florence Richmond, an Infant, by Richard Richmond, Her Guardian ad Litem, et al., Respondents, v. Benjamin Krasne et al., Copartners Doing Business under the Firm Name of Krasne Bros., Appellants, Impleaded with Others.
    Argued November 30, 1936;
    decided December 31, 1936.

      Clarence S. Zipp, J. Austin Lyons and William J. Ahearn for appellants.

      Thomas J. Milan, Robert X. Kuzmier and Richard C. Cotter for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hitbbs, Crouch, Loughran and Finch, JJ.


text:
    Thomas J. Roche, Respondent, v. United States Fidelity and Guaranty Company, Appellant.
    Argued December 1, 1936;
    decided December 31, 1936.

      William Dike Reed for appellant.

      Milton Pinkus for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J.. Lehman, O’Brien, IIubbs, Crouch, Loughran and Finch, JJ.


text:
    The People of the State of New York, Appellant, v. Samuel Shafer, Respondent.
    Argued December 1, 1936;
    decided December 31, 1936.

      Daniel J. O’Mara, District Attorney (Harry L. Rosenthal of counsel), for appellant.

      Jacob Ark and John M. Keating for respondent.
   Judgment affirmed; no opinion:

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


text:
    Carrie Robinson, Respondent, v. Cruikshank Holding Corporation, Appellant, Impleaded with Another.
    Submitted December 2, 1936;
    decided December 31, 1936.

      David M. Engelson and Hyman M. Resnick for appellant.

      Harry E. Kreindler and Philip A. Levey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Cora B. Caudwell, Respondent v. Village of Hamburg, Appellant.
    Argued December 2, 1936;
    decided December 31, 1936.

      R. Foster Piper and Thomas Penney, Jr., for appellant.

      Robert W. McNulty for respondent.
   Judgments modified in accordance with opinion in Ferguson v. Village of Hamburg (272 N. Y. 234) decided herewith, and as so modified affirmed, without costs. No opinion.

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


text:
    Charles Burkle, Respondent, v. William B. Boothby, Appellant.
    Argued December 2, 1936;
    decided December 31, 1936.

      Luther Ira Webster for appellant.

      David B. Sugarman and Walter H. Puiziger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick L. Thompson. Appellant, v. Fifth Avenue Bank of New York, as Executor of Horace J. Brookes, Deceased, et al., Respondents.
    Argued December 2, 1936;
    decided December 31, 1936.

      Warner F. Thompson, James P. Ronaghan, John Kirkland Clark, Edward T. Welch and George F. Thompson for appellant.

      Frederick N. Van Zandt and H. A. Cushing for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Glenwood Cafeteria, Inc., Respondent; v. Christian G. Allers, Appellant.
    Submitted December 3, 1936;
    decided December 31, 1936.

      Nathan M. Cherey, Morris M. Goldknopf and Thomas F. Haggerty for appellant.

      Israel Harkavy and Irwin N. Wilpon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hobbs, Crouch, Loughran and Finch, JJ.


text:
    Herman C. Cort, Appellant, v. Clarence A. Smith, Individually and as County Manager and as Director of Finance of the County of Monroe, et al., Respondents.
    Argued December 3, 1936;
    decided December 31, 1936.

      Samuel Levy for appellant.

      Harry Rosenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. David Greenberg, Appellant.
    Argued December 3, 1936;
    decided December 31, 1936.

      Charles Belous for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and James Hurley of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Louis H. Pink, as Superintendent of Insurance of the State of New York, Appellant, v. Investors Syndicate Title and Guaranty Company, Respondent.
    Argued December 3, 1936;
    decided December 31, 1936.

      John J. Bennett, Jr., Attorney-General (Paul R. Taylor and Henry Epstein of counsel), for appellant.

      Frank L. Wiswall for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, O’Brien, Hubbs, Crotjgh, Lough-ran and Finch, JJ. Not voting: Crane, Ch. J.


author: Crane, Ch. J.

text:
    John Hoenig, Respondent, v. Central Stamping Company, Appellant.
    Submitted December 4, 1936;
    decided December 31, 1936.

      H. Preston Coursen for appellant.

      David T. Sutton for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, O’Brien, Hubbs, Crouch, Lough-ran and Finch, JJ. Crane, Ch. J., dissents in the following opinion:

Crane, Ch. J.

(dissenting). This proposed decision carries the doctrine of MacPherson v. Buick Motor Co. (217 N. Y. 382) entirely too far.

It would make the manufacturer of every coffee pot or dishpan liable for the consequences of a broken handle, no matter how far removed the injured person might be from the original purchaser. There must be a limit somewhere. There must be something more than a possibility of danger, at least a probability. An exploding coffee urn or glass jar or breaking wheel will almost certainly cause serious injury. The manufacturer alone can guard against such defects. Not so with handles to receptacles which may be safely used.

This coffee urn was so heavy when filled that the plaintiff himself says that they first lifted it upon the stove and then filled it with hot water from the pail. Nowhere does he explain why it could not have been left upon the gas stove and coffee served from there or poured out into other receptacles. If it went in from a pail at one end, there is no reason stated why it could not come out in a pail at the other end. Instead of that the plaintiff, knowing it was too heavy to lift when filled, attempted to remove it from the stove after the contents had been . heated. This is his testimony. There is nothing in the evidence to show that coffee urns of this weight were usually carried around by the handles or that the manufacturer had any reason to suppose that they would be when filled with boiling substance.

For these reasons I do not think that the plaintiff made out a case, and that his complaint should be dismissed.


text:
    The People of the State of New York ex rel. Joseph Temple, Appellant, v. Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted December 4, 1936;
    decided December 31, 1936.

      Joseph Temple, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Cooley Trading Company, Inc., Respondent, v. Samuel R. Goetz, Appellant.
    Submitted December 4, 1936;
    decided December 31, 1936.

      Frank G. Raichle for appellant.

      E. C. Schlenker for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William R. White, as Superintendent of Banks of the State of New York, Appellant, v. Pearl Adler et al., Defendants, and Samuel Ungerleider et al., Copartners Doing Business under the Firm Name of Samuel Ungerleider & Company, Respondents.
    Argued December 4, 1936;
    decided December 31, 1936.

      Harold N. Cohen, Edward Feldman, Isadore H. Cohen and Carl J. Austrian for appellant.

      Mortimer S. Gordon and Herman Keller for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Pinch, JJ.7


text:
    Charles Mueller, Respondent, v. Ellsworth Fosby, Appellant.
    Argued December 4, 1936;
    decided December 31, 1936.

      Kenneth J. Dugan and P. C. Dugan for appellant.

      Ernest B. Morris for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Giallella, Appellant.
    Argued December 4, 1936;
    decided December 31, 1936.

      Cyril J. Kavanagh and Robert E. Miller for appellant.

      Walter C. Newcomb, District Attorney (David F. Doyle of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Henry, Jr., Appellant.
    Argued December 4, 1936;
    decided December 31, 1936.

      W. Bartlett Sumner for appellant.

      Walter C. Newcomb, District Attorney (David F. Doyle of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York ex rel. Adams Electric Light Company, Appellant, v. Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Submitted December 4, 1936;
    decided December 31, 1936.


text:
    Louis L. Cage, as Executor of Isaac Wiseman, Deceased, Respondent, v. Fannie Rosenberg, Appellant.
    Submitted January 4, 1937;
    decided January 12, 1937.

      Edwin R. Wolff for motion.

      Moses H. Rothman opposed.
   Motion denied, with leave to renew upon argument.


text:
    International Harvester Company of America, Inc., Appellant and Respondent, v. James P. Whelan et al., Respondents, and Bethlehem Steel Corporation et al., Respondents and Appellants.
    Argued January 4, 1937;
    decided January 12, 1937.

      Joseph Day Lee in support of motion to dismiss appeal of plaintiff and in opposition to motion to dismiss appeal of defendant-appellant.

      Allen H. Pulsifer and Alfred D. Dennison in support of motion to dismiss appeal of defendant-appellant and in opposition to motion to dismiss appeal of plaintiff.
   Motion to dismiss appeal by plaintiff granted and appeal dismissed, with costs and ten dollars costs of motion.

Motion to dismiss appeal by defendant denied, with ten dollars costs.


text:
    Edwin V. Hellawell, as Receiver of the First National Bank of Hempstead, Respondent, v. Charles Baer et al., Defendants, and Carrie E. Pray, as Administratrix of the Estate of Elias J. Pray, Deceased, et al., Appellants.
    Submitted January 4, 1937;
    decided January 12, 1937.

      Perlie P. Fallon for motion.

      Ferdinand I. Haber opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, this not being a final order in a special proceeding.


text:
    Jacob Heiman, Appellant, v. Henry Bishop et al., Respondents, Impleaded with Others.
    Submitted January 4, 1937;
    decided January 12, 1937.
   Motion by Henry Bishop for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 83.)


text:
    In the Matter of the Claim of Frances Dingfeldt, Respondent, against Albee Godfrey Whale Creek Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted January 4, 1937;
    decided January 12, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 623.)


text:
    In the Matter of Albert F. Glassman, Respondent, against Arthur G. Fries, as County Auditor of Erie County, Appellant, Impleaded with Another.
    Submitted January 4, 1937;
    decided January 12, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 271 N. Y., 116.)


text:
    The People of the State of New York, Respondent, v. Abraham Wolfe, Appellant.
    Submitted January 4, 1937;
    decided January 12, 1937.
   Motion for reargument denied: The judgment affirmed the conviction of illegal parking in violation of article 2, section 4 (a), subdivision 15, of the New York City Zoning Resolution. (See 272 N. Y. 608.)


text:
    The People of the State of New York, Respondent, v. Josephine Concannon, Appellant.
    Submitted January 4, 1937;
    decided January 12, 1937.

      Thomas J. Walsh, District Attorney (Thomas K. Hall of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of the Will of Emma T. Gary, Deceased. Elma L. Quirin, as Ancillary Executrix of Eliza J. Brundage, Deceased, Appellant; Lewis Nixon, Sr., et al., as Executors of Emma T. Gary, Deceased, et al., Respondents.
    Submitted January 4, 1937;
    decided January 12, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 635.)


text:
    The People of the State of New York, Respondent, v. Alvah Hunter and George Fremmer, Appellants.
    Submitted January 4, 1937;
    decided January 12, 1937.

      Bernard W. Kearney, District Attorney, for motion.

      Alvah Hunter opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Jacob Shatter, Appellant, against Robert Moses, as Park Commissioner of the City of New York, Respondent.
    Submitted January 4, 1937;
    decided January 12, 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:
    The People of the State of New York, Respondent, v. Alfred Gangloff, Appellant.
    Submitted January 4, 1937;
    decided January 12, 1937.
   Motion for reargument denied. (See 272 N. Y. 643.)


text:
    Mendelson Bros. Factors, Inc., Appellant, v. Walter E. Sachs et al., Individually and Composing the Firm of Goldman Sachs and Company, Respondents, Impleaded with Others.
    Submitted January 11, 1937;
    decided January 12, 1937.

      Walter H. Pollak for motion.

      Alexander Slater opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion, unless appellant files undertaking on appeal -within ten days and pays ten dollars costs, in which event the motion is denied.


text:
    William W. Vaughan et al., Copartners under the Firm Name of Vaughan & Company, Appellants, v. The State of New York, Respondent.
    Decided January 12, 1937.
   The remittitur herein is hereby amended by adding thereto the following:

A question under the Federal Constitution was presented and necessarily passed upon by this court. The plaintifis-appellants contended that chapter 643 of the Laws of the State of New York, enacted in 1933, was repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States. This court held that chapter 643 of the Laws of the State of New York, enacted in 1933, was not repugnant to section 1 of the Fourteenth Amendment to the Constitution of the United States.” (See 272 N. Y. 102.)


text:
    In the Matter of the Accounting of the President and Directors of the Manhattan Company et al., as Executors of Marx Lissberger, Deceased, etc., Respondents. William R. White, Superintendent of Banks of the State of New York, as Liquidator of Mercantile Bank and Trust Company, Appellant.
    Argued January 4, 1937;
    decided January 19, 1937.

      David Asch and William J. Butler for appellant.

      James F. Donnelly and Samuel Michelman for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Robert W. Goelet, Respondent, against Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.
    Argued January 4, 1937;
    decided January 19, 1937.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Charles G. Weinstein of counsel), for appellant.

      Charles R. Barrett, John N. Regan and Edward G. Bathon for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Henry Phipps Estates, Respondent, against Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.
    Argued January 4, 1937;
    decided January 19, 1937.

      Paul Windels, Corporation Counsel (William S. Gaud, Jr., Paxton Blair and Charles C. Weinstein of counsel), for appellant.

      Joseph M. Proskauer and Theodore J. Miller for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Ft. Greene Associates, Inc., Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    Argued January 4, 1937;
    decided January 19, 1937.

      Michael Levine and Benjamin Millstein for appellant.

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

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


text:
    Rochester Trust and Safe Deposit Company, Appelant, v. Rodney S. Hatch et al., Respondents.
    Argued January 5, 1937;
    decided January 19, 1937.

      C. Vincent Wiser and John G. Shaw for appellant.

      James M. O’Reilly and Raymond Bentley for respondents.
   Orders reversed, with costs in all courts, and motion granted to the extent of strildng out the defenses pleaded to the separate causes of action for interest and taxes only on the authority of Johnson v. Meyer (242 App. Div. 798; affd., 268 N. Y. 701). Question certified answered in the affirmative. No opinion. (See 273 N. Y. 581.)

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


text:
    In the Matter of the Application of The City of New York, Respondent, Relative to Acquiring Title to Lands Required for the Opening and Extending of Brigham Street in the Borough of Brooklyn. 330 West 95th Street Corporation, Appellant.
    Submitted January 5, 1937;
    decided January 19, 1937.

      Ralph L. Baldwin for appellant.

      Paul Windels, Corporation Counsel (Reuben Levy, Paxton Blair and Joseph F. Mulqueen, Jr., of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Royal Italian Government, Appellant, v. International Committee of Young Men’s Christian Associations, Respondent.
    Submitted January 11, 1937;
    decided January 19, 1937.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 273 N. Y. 468.)


text:
    Mae M. Cope, Respondent, v. John Wanamaker of New York, Appellant.
    Submitted January 11, 1937;
    decided January 19, 1937.

      Benjamin Barondess for motion.

      David Cohen opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of Adam Goettel, Respondent, against Peter G. Ten Eyck, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Argued January 6, 1937;
    decided January 26, 1937.

      Milo R. Kniffen for appellant.

      Daniel F. Mathews for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Lucille Z. Alexander, Respondent, against Movietonews, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued January 6, 1937;
    decided January 26, 1937.

      F. A. W. Ireland Joy appellants.

      Herbert W. Haldenstein and Theodore W. Adler for claimant-respondent.

      John J. Bennett, Jr., Attorney-General (Leon Freedman of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion. (See 273 N. Y. 599.)

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


text:
    In the Matter of the Claim of Grace Talbot, Respondent, against Claude W. Kress at al., Appellants. State Industrial Board, Respondent.
    Submitted January 6, 1937;
    decided January 26, 1937.

      H. Dudley Bierau and William E. Lowther for appellants.

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

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


text:
    In the Matter of the Estate of Edward J. Gramm, Deceased. James F. Egan, Public Administrator of New York County, as Administrator of the Estate of Edward J. Gramm, Deceased, et al., Appellants; Walter Benson, Respondent.
    Argued January 7, 1937;
    decided January 26, 1937.

      Sidney B. Alexander amd Meyer Loebelson for John R. Gramm et al., appellants.

      Joseph T. Arenson and Joseph A. Cox for James F. Egan, as Public Administrator, appellant.

      Abraham Lillienthal and Irving A. Heimlich for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Zinna Griefer, Respondent, v. County of Sullivan et al., Appellants.
    Argued January 11, 1937;
    decided January 26, 1937.

      Nellie Childs Smith and John D. Lyons for appellants.

      Bernard Wiess for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael A. Crage, Appellant, v. City of Buffalo, Respondent.
    Argued January 11, 1937;
    decided January 26, 1937.

      Frank A. Miceli for appellant.

      Gregory U. Harmon, Corporation Counsel (Bart J. Shanahan of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George M. Clarke, Appellant, v. Stephen H. Gordon et al., Respondents, Impleaded with Others.
    Argued January 11, 1937;
    decided January 26, 1937.

      Ransom H. Gillett for appellant.

      John Bright and Abram F. Servin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Louis Dachis, Appellant.
    Argued January 11, 1937;
    decided January 26, 1937 .

      Mordecai Konowitz and Harry G. Anderson for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Harry Heckinger, Appellant.
    Argued January 11, 1937;
    decided January 26, 1937.

      David P. Siegel, Samuel Hassen and Bernard, Axler for appellant.

      Charles P. Sullivan, District Attorney (John H. W. Krogmann of counsel), for respondent.
   Judgments reversed and new trial ordered. There is no evidence in this record to justify the submission of this case to the jury. No opinion.

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


text:
    Lina Sternkopf, Respondent, v. August H. Hillers et al., Appellants, Impleaded with Others.
    Argued January 12, 1937;
    decided January 26, 1937.

      William G. Johnson and Arthur S. Johnson for appellants.

      Owen S. M. Tierney and Albert J. Saltier for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Annie Rosenthal, as Administratrix of the Estate of Max Rosenthal, Deceased, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued January 12, 1937;
    decided January 26, 1937.

      James D. Ewing for appellant.

      David Schneir and Leon Wasserman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Benjamin Lieberman, Appellant.
    Submitted January 12, 1937;
    decided January 26, 1937.

      Leo H. Klugherz, Harry Sokel and Richard Klugherz for appellant.

      George V. Dorsey, District Attorney, for respondent.
   Judgment affirmed under section 542 of the Code of Criminal Procedure; no opinion.

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


text:
    Charles J. Haas, Respondent, v. Home Indemnity Company, Appellant.
    Submitted. January 18, 1937;
    decided January 26, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 283.)


text:
    New Edgewood Lake Corporation, Appellant, v. Kingston Trust Company et al., Respondents.
    Submitted January 18, 1937;
    decided January 26, 1937.

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


text:
    J. Field Kennard, Respondent, v. Frederick W. Ritter, as Executor of Maxwell H. Elliott, Deceased, et al., Appellants, Impleaded with Another.
    Submitted January 18, 1937;
    decided January 26, 1937.

      Frederick W. Ritter for motion.

      George Dines opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    In the Matter of General Finance Corporation, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    Submitted January 18, 1937;
    decided January 26, 1937.

      Henry W. Killeen for motion.

      Gay H. Brown and Laurence J. Olmstead opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground the order is not a final order.


text:
    William E. Woollard, Appellant, v. Schaffer Stores Company, Inc., Respondent, Impleaded with Another.
    Submitted January 25, 1937;
    decided March 2, 1937.
   Motion for a reargument and to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 304.)


text:
    Marie Z. Hornkohl, Appellant, v. Board of Education of the City of New York et al., Respondents.
    Submitted January 25, 1937;
    decided March 2, 1937.

      Arthur C. Mandel for motion.

      Paul Windels, Corporation Counsel (Paxton Blair and Arthur Bainbridge Hoff of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    In the Matter of the Claim of Frances Dingfeldt, Respondent, against Albee Godfrey Whale Creek Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted March 1, 1937;
    decided March 2, 1937.
   This Court held that the Workmen’s Compensation Law of the State of New York applied, that the Federal Courts did not have exclusive jurisdiction to afford relief and that the accident did arise out of and in the course of the decedent’s employment.” (See 272 N. Y. 623.)


text:
    Catherine Fearon, Appellant, v. Charles Treanor, Respondent.
    Submitted January 25, 1937;
    decided March 3, 1937.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 272 N. Y. 268.)


text:
    First Trust and Deposit Company, Respondent, v. Louis L. Hurwitz et al., Appellants, Impleaded with Others.
    Argued March 1, 1937;
    decided March 3, 1937.

      H. Duane Bruce for motion.

      Benjamin E. Shove, opposed.
   Motion denied, with leave to renew on argument of case.


author: Per Curiam.

text:
    In the Matter of the Application of Nash M. Abloff to Examine Bar Examination Papers.
    Submitted March 1, 1937;
    decided March 4, 1937.
   Per Curiam.

The above applicant having applied through letter for permission to see the papers of other candidates at the bar examination given in October, 1934, the court unanimously denied the application.

It appears from his correspondence and the communication of the State Bar Examiners that the applicant has examined his own questions and answers, and as to these makes no request. He desires to examine the papers of others who took the examination with him for the purpose of comparison.

This cannot be done.

The motion should be denied.

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

Motion denied.


text:
    In the Matter of the Estate of Emma C. Rueff, Deceased. State Tax Commission, Appellant; Willis M. Staubus, as Ancillary Administrator of the Estate of Emma C. Rueff, Deceased, Respondent.
    Argued January 7, 1937;
    decided March 9, 1937.

      Seth T. Cole and Mortimer M. Kassell for appellant.

      Clarence W. Archibold for respondent.
   Appeal dismissed, with costs. A constitutional question is not solely presented. The case could have been, and was, decided upon the construction of a statute. (Civ. Prac. Act, § 588, subd. 1.) No opinion.

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


text:
    Frances A. Massey, Respondent, v. Globe and Rutgers Fire Insurance Company, Appellant.
    Argued January 7, 1937;
    decided March 9, 1937.

      Charles B. Hickox, Robert Kelly Prentice, Myron T. Townsend and Vernon S. Jones for appellant.

      Forrest E. Single and Loring R. Lecraw for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of George S. Shirk et al., as Temporary Administrators of the Estate of Ella V. von E. Wendel, Deceased, etc. The Presbyterian Hospital in the City of New York et al., Appellants; George S. Shirk et al., as Surviving Temporary Administrators of the Estate of Ella V. von E. Wendel, Deceased, et al., Respondents.
    Argued January 13, 1937;
    decided March 9, 1937.

      Ben A. Matthews for appellants.

      John Edmond Hewitt, Edward O. Werner and George Flint Warren, Jr., for respondents.
   Order affirmed, with costs payable out of the estate. No opinion.

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


text:
    Lucius H. Beers et al., Appellants, v. Abby S. Marshall et al., Respondents, and United States Trust Company of New York, Appellant.
    Argued January 14, 1937;
    decided March 9, 1937.

      Lucius H. Beers, Sherman Baldwin and Kenneth E. Ryan for plaintiffs, appellants, and for United States Trust Company of New York, defendant, appellant.

      L. S. Breckinridge, W. H. L. Edwards and J. W. Edwards for Abby S. Marshall, respondent.

      Charles L. Griffin, H. G. E. Borchert and Frederick L. Allen for Mutual Life Insurance Company of New York, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sarah E. Murnick, Doing Business under the Name of Wilmur Knitting Mills, Respondent, v. National-Ben Franklin Fire Insurance Company of Pittsburg et al., Appellants.
    Argued January 14, 1937;
    decided March 9, 1937.

      John L. Fletcher for appellants.

      Charles Abrams and Morris J. Helman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    125 West 45th Street Restaurant Corporation, Appellant, v. Framax Realty Corp., Defendant, and Barnet Klar et al., Respondents.
    Argued January 14, 1937;
    decided March 9, 1937.

      Joseph R. Apfel, Isadore Apfel and Abraham I. Last for appellant.

      Samuel W. Dorfman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Walter Meyer, Appellant.
    Submitted January 15, 1937;
    decided March 9, 1937.

      Leo J. Kennedy and Carlton A. Fisher for appellant.

      Walter C. Newcomb, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    Marie Woodward, Respondent, v. Oliver Vanier, as Executor of Anna W. Richardson, Deceased, Appellant.
    Argued January 18, 1937;
    decided March 9, 1937.

      H. C. Stratton and Charles D. Clinton for appellant.

      James B. Gitlitz and Peter J. Wacks for respondent.
   Judgment affirmed, with costs payable out of the estate; no opinion.

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


text:
    Emma B. Taber, Appellant, v. First Citizens Bank and Trust Company of Utica, as Executor of William I. Taber, Deceased, et al., Respondents, Impleaded with Another.
    Argued January 18, 1937;
    decided March 9, 1937.

      Warnick J. Kernan and E. Howard Ringrose for appellant.

      Gilbert R. Hughes for First Citizens Bank and Trust Company of Utica, as executor of William I. Taber, deceased, et al., respondents.

      S. W. Brennan for Samuel E. Taber, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Yonkers Railroad Company, Appellant, v. Herald Statesman, Inc., Respondent.
    Argued January 18, 1937;
    decided March 9, 1937.

      Alfred T. Damson and Victor McQuistion for appellant.

      Joseph Reeback for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Catherine I. Cosgrove, as Administratrix of the Estate of Catherine Cosgrove, Deceased, Respondent, v. City of Newburgh, Appellant, Impleaded with Others.
    Argued January 18, 1937;
    decided March 9, 1937.

      Raphael A. Egan, Corporation Counsel, for appellant.

      Russell Wiggins for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, OBrien, Hubbs, Loughran, Finch and Rippey, JJ.


text:
    Laurence H. Rutland, Respondent, v. Henry F. Thurston, Appellant.
    Argued January 18, 1937;
    decided March 9, 1937.

      James J. Sullivan for appellant.

      J. Carl Fogle and Harry L. Gilrie for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Leon H. Rubin, Respondent, v. Edmund P. Cottle et al., Individually and as Executors of Octavius O. Cottle, Deceased, et al., Appellants, and City of Buffalo et al., Respondents.
    Argued January 19, 1937;
    decided March 9, 1937.

      Edmund P. Cottle for appellant.

      Gregory U. Harmon, Corporation Counsel (Bertha J. Strootman of counsel), for City of Buffalo, defendant, respondent.

      Richard A. Friedson for plaintiff, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Rankin Funeral Home, Inc., Respondent, v. Rhode Island Insurance Company, Appellant, Impleaded with Others. (Action Nos. 1 and 2.) Rankin Funeral Home, Inc., Respondent, v. United Firemen’s Insurance Company of Philadelphia, Appellent, Impleaded with Others. (Action No. 3.)
    Argued January 19, 1937;
    decided March 9, 1937.

      Harry Z. Harris for appellants.

      Heiby W. Ungerer for respondent.
   In each case, judgment affirmed, with costs; no opinion.

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


text:
    Agnes Parsons et al., Appellants, v. City of New York, Respondent.
    Argued January 19, 1937;
    decided March 9, 1937.

      Charles J. Buchner, John M. Wilson and Benjamin J. Murphy for appellants.

      Paul Windels, Corporation Counsel (Frederick vP. Bryan and Paxton Blair of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Harry Dowret, Respondent, v. Brooklyn and Queens Transit Corporation, Appellant.
    Submitted January 20, 1937;
    decided March 9, 1937.

      Andrew F. Van Thun, Jr., and George D. Yeomans for appellent.

      Thomas A. Shaw for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John J. O’Neill, Respondent, v. Seglin Construction Company, Inc., et al., Appellants, and Henry Ciafardoni et al., Respondents.
    Argued January 20, 1937;
    decided March 9, 1937.

      William F. McNulty, Harold R. Medina and John W. Jordan for Standard Accident Insurance Company, appellant.

      Harry J. Halperin for Seglin Construction Company, Inc., appellant.

      Samuel Gottlieb, Francis T. Nolan, Edward M. Swinburne and James J. Dooling for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Karl Sturz, Appellant and Respondent, v. Michael J. Leo, Respondent and Appellant.
    Argued January 20, 1937;
    decided March 9, 1937.

      Talbot M. Malcolm and Earl A. Darr for plaintiff, appellant and respondent.

      James C. Sweeney and James H. Cavanaugh for defendant, respondent and appellant.
   Judgment of the Appellate Division modified by striking out the items of $1,200 and $564.62, aggregating $1,764.62, with interest from July 1, 1932, and as thus modified affirmed, without costs. The Appellate Division had no power to increase a verdict reduced by stipulation of the plaintiff. Appeal by plaintiff dismissed, without costs. No opinion.

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


text:
    Henry Thies, Appellant, v. Reich Bros. Long Island Motor Freight, Inc., et al., Defendants, and Frederick Beers, Respondent.
    Argued January 20, 1937;
    decided March 9, 1937.

      Elvin N. Edwards and Harvey J. George for appellant.

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

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


text:
    Nathan Klein, Individually and as President of Local No. 52 of the International Association of Bridge, Structural and Ornamental Iron Workers, et al., Respondents, v. Paul J. Morrin, Individually and as President of the International Association of Bridge, Structural and Ornamental Iron Workers, et al., Defendants, and Joseph Boyen, Individually and as President of Local No. 447 of the International Association of Bridge, Structural and Ornamental Iron Workers, Appellant.
    Argued January 20, 1937;
    decided March 9, 1937.

      Harold Stern for appellant.

      Louis B. Boudin for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Catherine Nevins, as Administratrix of the Estate of William Nevins, Deceased, Respondent, v. Steeplechase Amusement Company, Inc., Appellant.
    Argued January 21, 1937;
    decided March 9, 1937.

      William B. Shelton for appellant.

      Thomas J. O’Neil and L. Daniel Danziger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Unexcelled Laundry System, Inc., Appellant, v. Otto Esemann, Respondent.
    Argued January 21, 1937;
    decided March 9, 1937.

      Charles Burston for appellant.

      Paul W. Hessel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William F. Bowen, as Administrator of the Estate of Leonard I. Long, Deceased, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    Argued January 22, 1937;
    decided March 9, 1937.

      J. Irwin Shapiro and Murray Rubien for appellant.

      H. S. Ogden for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William Lesser, Appellant, v. Holland Farms, Inc., Respondent.
    Submitted January 22, 1937;
    decided March 9, 1937.

      Jacquin Frank, Charles Glatzer and David M. Fink for appellant.

      Daniel Mungall and Edwin C. Markel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Franklin J. Kinsley, Appellant, v. Dominick Carravetta et al., Defendants, and Alexander Nicoll et al., Respondents.
    Argued January 22, 1937;
    decided March 9, 1937.

      Joseph C. Thomson, Allen B. Flouton and William Dike Reed for appellant.

      Francis L. Driscoll and Lorenz J. Brosnan for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edith Farr, as Administratrix of the Estate of Westley A. Farr, Deceased, Appellant, v. Frank E. Wright, Respondent.
    Argued January 22, 1937;
    decided March 9, 1937.

      J. Stanley Carter and M. James Conboy for appellant.

      Harold W. Turner for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground the evidence presented a question of fact for the jury. No opinion.

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


text:
    Halsted James et al., Appellants, v. South Side Estates, Inc., et al., Defendants, and William H. Door, Respondent.
    Submitted January 22, 1937;
    decided March 9, 1937.

      John S. Russell for appellants.

      Charles L. Sylvester and Sidney Kaminsky for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Best & Company, Inc., et al., Appellants, v. Village of Garden City et al., Respondents.
    Argued January 25, 1937;
    decided March 9, 1937.

      M. James Spitzer and Nathaniel D. Reich for appellants.

      George L. Hubbell, Jr., Daniel S. Murphy and John J. Gibson, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Wilma Rosenberg et al., Respondents, v. Commercial Travelers Mutual Accident Association of America, Appellant.
    Argued January 25, 1937;
    decided March 9, 1937.

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

      Joseph C. Salzman and David S. Romanov for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary I. Quigley, Appellant, v. Locomotive Engineers Mutual Life and Accident Insurance Association, Respondent.
    Argued January 26, 1937;
    decided March 9, 1937.

      James P. Donovan for appellant.

      Clarence E. Weisel and Robert H. Wendt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John J. O’Leary, Respondent, v. Loring Dam et al., Copartners under the Firm Name of Eastman, Dillon & Company, Appellants.
    Argued January 26, 1937;
    decided March 9, 1937.

      Francis S. Bensel and Thomas W. McDonald for appellants.

      Horatio W. Thomas for respondent.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts. No opinion.

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


text:
    Beatrice Sokol, Appellant, v. Dudley Harde et al., Copartners under the Firm Name of Harde and Sharp, Respondents.
    Argued January 26, 1937;
    decided March 9, 1937.

      George S. Mittendorf and Arnold Furst for appellant.

      Ira Skutch and George W. Phillips, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Max Storch et al., Appellants, v. Abram Greenfield, Respondent.
    Argued January 26, 1937;
    decided March 9, 1937.

      Max Ornstein for appellants.

      Irving G. Kennedy for respondent.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts. No opinion.

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


text:
    M. P. Moller, Inc., Appellant, v. Temple Israel of Washington Heights, Inc., et al., Respondents.
    Argued January 27, 1937;
    decided March 9, 1937.

      Ludwig M. Wilson and Francis A. Devin for appellant.

      John B. McGuire and Albert C. Kelly for Emigrant Industrial Savings Bank, respondent.

      Theodore Charnas, Emil Levitt and Abraham J. Gellinoff for Temple Israel of Washington Heights, Inc., et al., respondents.
   Judgment affirmed, with costs. Appeal from order denying new trial dismissed. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Lottghran, Einch and Rippet, JJ. Talcing no part: Htibbs, J.