text:
    Railroad Waterproofing Corp., Appellant, v. Memphis Supply, Inc., Defendant. Murdock Acceptance Corporation, Appellant and Respondent, v. Hempstead Motor Truck Sales Co., Inc., et al., Defendants, and Railroad Waterproofing Corp., Respondent and Appellant.
    Argued January 8, 1952;
    decided January 25, 1952.

      Benjamin Machinist for Railroad Waterproofing Corp.

      David F. Sussman for Murdock Acceptance Corporation.
   Per Curiam.

We agree with the courts below as to the vacation of the order of attachment, and as to the dismissal, for lack of jurisdiction, of the complaint of Railroad Waterproofing Corp. against Memphis Supply, Inc., based upon the latter’s alleged misrepresentation. We do not agree with the Appellate Division that Railroad Waterproofing Corp. had a lien on the truck for the purchase price paid by reason of breach of warranty under sections 150 and 134 of the Personal Property Law, inasmuch as the conditional sales agreement contained a clause negativing warranties, express or implied, not “ endorsed hereon in writing.” Such a clause is valid, and the mere description of the truck as Year Model 1945 ” may not be construed as a warranty (Lumbrazo v. Woodruff, 256 N. Y. 92; Personal Property Law, § 152). It follows that no lien arose under said section 150. Moreover, even if Railroad Waterproofing Corp. had a lien, it was lost upon its surrendering possession of the truck in order to secure a writ of attachment (Personal Property Law, §§ 134, 135, 137). We think the determination of Special Term was correct.

Accordingly, the judgment of the Appellate Division should be modified by striking out the second decretal paragraph and reinstating in its place the second decretal paragraph of the Special Term judgment, and, as so modified, affirmed, with costs to Murdock Acceptance Corporation.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment accordingly. [See 303 N. Y. 1007.]


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of New York State Guernsey Breeders’ Co-Operative, Inc., Appellant, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents.
    Submitted January 7, 1952;
    decided January 25, 1952.

      Stewart F. Hancock for motion for leave to appeal and in opposition to motions to dismiss appeal.

      Robert G. Blabey, Donald L. Brush, Raymond F. Allen, T. Carl Nixon, Grantier Neville, Wilford A. Le Forestier, Clinton M. Horn, Dean P. Taylor and Joe Schapiro for motions to dismiss appeal and in opposition to motion for leave to appeal.
   Motion for leave to appeal granted. Motions to dismiss appeal taken as of right granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Michael Yonki, Appellant, v. City of New York, Respondent.
    Submitted January 14, 1952;
    decided January 25, 1952.

      Denis M. Hurley, Corporation Counsel (Seymour B. Quel of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant serves and files an undertaking on appeal and pays $10 costs within ten days, in which events motion denied. As to that phase of the motion which seeks dismissal for failure to prosecute, see rules 1 and 6 of the Rules of the Court of Appeals.


text:
    The People of the State of New York, Respondent, v. Bernard Stein, Appellant.
    Submitted February 28, 1952;
    decided March 4, 1952.
   Motion for reargument denied. All concur except Conway, J., who dissents and votes to grant reargument. [See 302 N. Y. 915, 941; 303 N. Y. 627, 791.]


text:
    Meadow Brook National Bank of Freeport, Respondent, v. Louis Ferkin, Appellant.
    Submitted January 16, 1952;
    decided March 6, 1952.

      Louis Ferkin, in person, and Harry E. Kreindler for appellant.

      Sidney Friedman for respondent.
   Judgment of Appellate Division reversed and order of Special Term affirmed, with costs in this court and in the Appellate Division. The record before us presents questions of law, which turn upon questions of fact, which should be determined only upon a record made on a full trial of the case. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Fuld and Froessel, JJ. Dissenting: Dye, J.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Argued November 19, 1951;
    decided March 6, 1952.

      Peter L. F. Sabbatino, Edward J. Fontana, Sidney Neubauer and Joseph W. Campanella for Calman Cooper, appellant.

      Philip J. O’Brien, Jr., John J. Duff and Philip J. O’Brien for Harry A. Stein, appellant.

      J. Bertram Wegman, I. Maurice Wormser, Richard J. Burke and Myron L. Shapiro for Nathan Wissner, appellant.

      George M. Fanelli, District Attorney (John C. Marbach and John J. O’Brien of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 303 N. Y. 982.]


text:
    Abram Moody et al., Appellants, v. Seabro Corp., Inc., et al., Respondents.
    Argued January 14, 1952;
    decided March 6, 1952.

      James C. Danzilo and John L. Danzilo for appellants.

      John J. Donohue for Seabro Corp., respondent.

      David L. Glickman and Fred J. Munder for Suffolk County and another, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Arbitration between Newspaper and Mail Deliverers’ Union of New York and Vicinity, Respondent, and Newark Newsdealers Supply Company, Inc., Appellant.
    Argued January 8, 1952;
    decided March 6, 1952.

      Julius Kass and Richard L. Halpern for appellant.

      Samuel Duker for respondent.
   Order affirmed, with costs. Question certified not answered. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Nick Cost et al., Appellants. Nicholas Benetos et al., Respondents.
    Argued December 4, 1951;
    decided March 6, 1952.

      Isidor Unger for appellants.
    No appearance for respondents.
   Appeal dismissed, upon the ground that the contempt order was nonfinal in respect of both appellants. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Probate of the Will of Richard M. Schell, Deceased. Alice S. Porcher, Appellant; Bank of New York & Fifth Avenue Bank, Individually and as Executor of and Trustee under the Will of Richard M. Schell, Deceased, et al., Respondents.
    Argued January 15, 1952;
    decided March 6, 1952.

      Glenn L. Buck for appellant.

      Thomas B. Fenlon for Bank of New York & Fifth Avenue Bank and others, respondents.

      Stanley Gray Horan for New York City Mission Society, respondent.

      Conrad Saxe Keyes for Florence S. Virgin, respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Ronald H. Farah, an Infant, by Frances Farah, His Guardian ad Litem, Appellant, v. Henry Farah, Respondent.
    Argued January 9, 1952;
    decided March 13, 1952.

      Bernard Kaufman and Bernard Pensak for appellant.

      Edward Friedman, John J. Sullivan, Eugene J. Finnegan and Gabriel E. Torre for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 303 N. Y. 1004.]


text:
    Maria Wyatt, Respondent, v. Ruth O. Wyatt, Appellant.
    Submitted January 24, 1952;
    decided March 13, 1952.

      Harry T. Thurschwell for appellant.

      Louis Gorman for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Self Service Super Market, Inc., Respondent, v. Benjamin Harris, Appellant, and Nathan Tessler et al., as Copartners, et al., Undertenants.
    Argued January 10, 1952;
    decided March 13, 1952.

      Karl Propper for appellant.

      Louis Susman and Herbert A. Lane for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Michael Sullivan, Appellant, against Albert Williams, as Commissioner of the Department of Correction of the City of New York, Respondent.
    Submitted January 22, 1952;
    decided March 13, 1952.

      Jacob Schechner for appellant.

      Denis M. Hurley, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Minnie Hindus, Appellant, v. Lester M. Newburger et al., as Copartners, Defendants, and Florence Slutsky, Individually and as Executrix of Samuel Slutsky, Deceased, Respondent.
    Argued January 16, 1952;
    decided March 13, 1952.

      Joseph S. Catalano and William J. Woods for appellant.

      Douglas E. Mathewson and James A. Smyth for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Puld and Froessel, JJ.


text:
    In the Matter of George Mihale et al., Respondents, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued January 22, 1952;
    decided March 13, 1952.

      Alvin McKinley Sylvester and William Hoppen for appellants.

      Louis J. Lefkowitz and Hyman D. Siegel for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Charles Dabkowski, Respondent, against Bethlehem Steel Company, Appellant. Workmen’s Compensation Board, Respondent.
    Argued January 23, 1952;
    decided March 13, 1952.

      Solon J. Stone and Alexander C. Cordes for appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of William Aloe et al., Copartners Doing Business under the Name of William Aloe Coal Company, Appellants, against Clarence E. Dassler, as Building Inspector of the City of New Rochelle, Respondent.
    Argued January 17, 1952;
    decided March 13, 1952.

      John J. Dillon for appellants.

      Aaron Simmons, Corporation Counsel (John A. Bodmer of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Leonard M. Wolper, Appellant.
    Argued January 22, 1952;
    decided March 13, 1952.

      Fred Forman for appellant.

      William H. Emerson, Corporation Counsel (James H. Boomer of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    George Stern, Respondent, v. Pesti Magyar Kereskedelmi Bank, Appellant.
    Argued January 23, 1952;
    decided March 13, 1952.

      Benjamin Busch and Otto C. Sommerich for appellant.

      Lester Samuels, Milton C. Weisman, Abraham Shapiro and Richard L. Sapiro for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Sophie D. Cohen et al., as Surviving Executors of William W. Cohen, Deceased, Appellants and Respondents, v. Carita Noda et al., Respondents and Appellants; Japan Cotton & Silk Trading Co., Inc., et al., Respondents, et al., Defendants.
    Argued January 17, 1952;
    decided March 13, 1952.

      Meyer Kraushaar for appellants and respondents.

      James E. Bennet, Jr., and Helen F. Tuohy for Carita Noda and another, respondents and appellants.

      Joseph Leary Delaney, Edwin A. Tennant, Jr., and Lee Feltman for Japan Cotton & Silk Trading Co., Inc., respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Catherine Carney, Respondent, against General Cable Corporation, Appellant. Workmen’s Compensation Board, Respondent.
    Argued January 23, 1952;
    decided March 13, 1952.

      Morgan F. Bisselle and Warren C. Tucker for appellant.

      Bartle Gorman for Catherine Carney, respondent.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum, Wendell P. Brown and Harry Pastor of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Louis Girardi, Appellant.
    Argued January 22, 1952;
    decided March 13, 1952.

      Sydney Rosenthal and Keal Kaufman for appellant.

      T. Vincent Quinn, District Attorney (Benjamin J. Jacobson of counsel), for respondent.
   Judgment affirmed. Appeal from order denying a new trial on the ground of newly discovered evidence dismissed, since such an order in a noncapital case is not reviewable by this court (People v. Luciano, 275 N. Y. 547). This is without prejudice to a new motion by defendant, if he be so advised, by way of coram nobis, to make the same contentions as in his previous motion for a new trial, as to the merits or effect of which contentions this court takes no position at this time. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Junious T. Cherry, Respondent, against Bethlehem Steel Company, Appellant. Workmen’s Compensation Board, Respondent.
    Argued January 23, 1952;
    decided March 13, 1952.

      Solon J. Stone for appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen's Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fold and Froessel. JJ.


text:
    Adeline Reich, Respondent, v. William Rosenblatt, Appellant.
    Argued January 16, 1952;
    decided March 13, 1952.

      Alexander Pfeiffer for appellant.

      Samuel D. Reidel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ. Taking no part: Fuld, J.


text:
    Beacon Lunch, Inc., Respondent, v. Alexander Weber, Appellant.
    Argued January 18, 1952;
    decided March 13, 1952.

      Morris A. Marks, George E. Netter, Helen M. Wolfsohn, M. Albert Bendes and A. Joseph Geist for appellant.

      Harry Lesser and Samuel Lesser for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Accounting of Continental Bank & Trust Company of New York, as Trustee of an Express Trust Made by Roberta F. Frank to Said Trustee, Respondent. Crosby Field et al., Appellants.
    Argued January 22, 1952;
    decided March 13, 1952.

      William G. Chambers and Archibald H. Cashion for appellants.

      Frank J. Podesta and John W. Kelly for respondent.
   Order aErmed, with costs to the respondent; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Edward Mokski, Respondent, against Bethlehem Steel Company, Appellant. Workmen’s Compensation Board, Respondent.
    Argued January 23, 1952;
    decided March 13, 1952.

      Solon J. Stone and Alexander C. Cordes for appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    David G. Crofut, Respondent, v. State of New York, Appellant. Anita M. Crofut, Respondent, v. State of New York, Appellant.
    (Motion No. 1889.) (Motion No. 1890.)
    Argued January 24, 1952;
    decided March 13, 1952.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for appellant.

      Julian V. D. Orton for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Froessel, JJ.


text:
    In the Matter of Dinah R. Rosenblatt, an Attorney, Appellant. Erie County Bar Association, Respondent.
    Submitted January 7, 1952;
    decided March 13, 1952.

      J. Clement Johnston for motion.

      Samuel M. Fleischman opposed.
   Motion granted and appeal dismissed upon the ground that no substantial constitutional question is involved.


text:
    In the Matter of Carmine Pizza, Appellant, against John A. Lyons, as New York State Commissioner of Correction, et al., Respondents.
    Submitted March 3, 1952;
    decided March 13, 1952.
   Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by the addition of the following: A question under the Federal Constitution was presented and necessarily passed upon by this court, viz., whether the construction which the courts of this State placed upon section 2 of chapter 70 of the Laws of 1936, amending section 212 of the Correction Law, and of section 1 of chapter 631 of the Laws of 1948, amending sections 235, 236 and 241 of the Correction Law, violated the provisions of section 10 of article I of the Constitution of the United States, prohibiting ex post facto laws. This court held that those statutes did not violate the constitutional prohibition against ex post facto laws. [See 303 N. Y. 736.]


text:
    Orange County Trust Company, Plaintiff, v. Merchants Acceptance Corporation, Respondent, and Middletown Auto Distributors, Inc., Defendant and Third-Party Plaintiff. James H. Wilcox et al., Doing Business as Wilcox Used Cars, Third-Party Defendants-Appellants.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Mark N. Turner for motion.

      Mandeville, Buck, Teeter and Harpending opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that, as to third-party defendants Wilcox, the judgment does not finally determine the action within the meaning of the Constitution.


text:
    Robert W. Thompson, Doing Business as Robert W. Thompson Company, Respondent, v. Trinity Operating Company, Inc., Appellant.
    Submitted March 3, 1952;
    decided March 13, 1952.
   Motion for an order vacating the prior order of this court dated January 17, 1952, denied. An appeal lies of right to this court from a judgment of the Appellate Division (1) reversing an order of the Supreme Court setting aside a verdict and granting a new trial, and (2) reinstating such verdict. (Civ. Prac. Act, § 588, subd. 1, cl. [c], added by L. 1942, ch. 297; see Baillargeon v. Jacques, 299 N. Y. 792; Matter of Active Fabrics Corp. [Rosedale Fabrics], 299 N. Y. 678; Cohen and Karger, Powers of the New York Court of Appeals [1952], § 49.) [See 303 N. Y. 801.]


text:
    Jamalie Shohfi, Respondent, v. Essa Shohfi et al., Appellants.
    Submitted March 3, 1952;
    decided March 13, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 370.]


text:
    In the Matter of Ray Sales Co., Inc., Respondent. Celka Store Fixture Co., Inc., Appellant.
    Submitted March 3, 1952;
    decided March 13, 1952.

      David Haar for motion.

      Murray Zeiger opposed.
   Motion denied, without costs, upon the condition that within ten days the appellant submit to a Judge of the Court of Appeals for approval an undertaking for costs.


text:
    Edna von R. Blair, Appellant, v. C. Chester Du Mond, as Commissioner of Agriculture and Markets, et al., Respondents.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Sherman S. Rogers for motion.
    No one opposed.
   Motion granted.


text:
    James Hallas, Appellant, v. North River Insurance Company of New York, Respondent. James Hallas, Appellant, v. Cosmopolitan Mutual Fire Insurance Company of New York, Respondent.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Samuel A. Berger for motion to dismiss appeal.

      Frederick W. Scholem and Hyman Goldman for motion for leave to prosecute appeals as a poor person and in opposition to motion to dismiss appeal.
   Motion to dismiss appeals denied.

Motion for leave to prosecute appeals as a poor person granted.


text:
    Village of Great Neck Estates, Respondent, v. Robert J. Rose, Appellant, et al., Defendants.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Edward S. Bentley and Robert T. Aller for motion.

      Irving L. Spanier opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    Carol A. Napiearlski, an Infant, by Helen Napiearlski, Her Guardian ad Litem, Appellant, v. De Witt Pickering, Respondent. Frank Napiearlski, Appellant, v. De Witt Pickering, Respondent.
    Submitted March 3, 1952;
    decided March 13, 1952.

      William F. Knapp for motion.
    No one opposed.
   Motion denied, without costs.


text:
    In the Matter of Merritt B. Schuyler, Appellant, against Frederick A. Moran, as Chairman of the New York State Board of Parole, et al., Respondents.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Nathaniel L. Goldstein, Attorney-General (William S. Elder Jr., of counsel), for motion.

      Merritt B. Schuyler, in person, opposed.
   Motion granted and appeal dismissed.


text:
    Thomas J. Brennan, as President of Lackawanna Lodge No. 715, Brotherhood of Railroad Trainmen, et al., Appellants and Respondents, v. Delaware, Lackawanna & Western Railroad Company, Respondent, and George C. Slade, as General Chairman of General Adjustment Committee of Said Railroad of Switchmen’s Union of North America, et al., Respondents and Appellants, et al., Defendants.
    Submitted March 3, 1952;
    decided March 13, 1952.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by the addition of the following: Questions under the Federal Constitution were presented and necessarily passed upon by this court, viz., whether the decision of the Appellate Division of the Supreme Court — affirmed by this court — violated any of the rights of the plaintiffs guaranteed by section 1 of the Fourteenth Amendment to, or article VI of, the Constitution of the United States. This court held that the aforesaid determination did not violate any of the rights of the plaintiffs guaranteed by such provisions of the Federal Constitution. [See 303 N. Y. 411.]


text:
    In the Matter of the Arbitration between Walter D. Binger et al., Respondents, and Charles J. Thatcher, Appellant.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Charles J. Thatcher, in person, for motion for leave to appeal.

      John F. X. Finn for motion to dismiss appeal.
   Motion for leave to appeal denied on the ground that an appeal lies as of right.

Cross motion to dismiss the appeal denied on the ground that an appeal as of right was taken within the time prescribed by the provisions of paragraph (a) of subdivision 5 of section 592 of the Civil Practice Act.


text:
    Erie County Water Authority, Respondent, v. Western New York Water Company et al., Appellants, et al., Defendants.
    Submitted March 3, 1952;
    decided March 13, 1952.

      Laurence J. Olmsted and Melvin L. Bong for motion.

      Reid S. Moule opposed.
   Motion denied, with $10 costs.


text:
    B. M. Heede, Inc., Respondent, v. Frederic P. Roberts et al., Copartners Doing Business under the Name of Robert & Company, et al., Appellants.
    Submitted March 3, 1952;
    decided March 13, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 385.]


text:
    International Diesel Electric Company, Incorporated, Appellant, v. Solomon Marchak, Defendant. Andrew R. L. McNaughton, Respondent.
    Argued February 28, 1952;
    decided March 14, 1952.

      Hyman I. Fischbach for appellant.

      Borris M. Komar for respondent.
   Appeal dismissed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Walter Gauger, Appellant, v. G. L. F. Waterloo Farm Products Cooperative, Inc., Respondent.
    Argued February 29, 1952;
    decided March 14, 1952.

      M. Maurice Chacchia for appellant.

      Albert E. Bond and James M. Ryan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    John Murphy, Respondent, v. Peterson Cipher Code Corp., Appellant, et al., Defendants.
    Argued January 24, 1952;
    decided March 14, 1952.

      John P. Carson, Daniel Miner and Paul D. Carrigg for appellant.

      Rubin Baron for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that the jury was not clearly instructed that the written statement by the plaintiff’s witness Bowman could not serve as affirmative evidence of substantive facts stated therein but only, as a means of impeachment, to prove that he had made a prior statement inconsistent with his testimony upon the trial. (Matter of Roge v. Valentine, 280 N. Y. 268, 276-277; Civ. Prac. Act, § 343-a.) No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Metropole Somerset Cafe, Inc., Appellant, against John F. O’Connell et al., Constituting the New York State Liquor Authority, Respondents.
    Argued January 24, 1952;
    decided March 14, 1952.

      Sidney G. Kingsley and Sidney Harris for appellant.

      Alvin McKinley Sylvester and William Hoppen for respondents.
   Order of Appellate Division reversed, determination of State Liquor Authority annulled, and a new hearing ordered, with costs to abide the event, on the ground that the appellant was deprived of a fair opportunity to cross-examine the witness Dennis. No opinion. ,

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Accounting of Central Hanover Bank and Trust Company, as Trustee under the Will of Mary J. Westerfield, Deceased, Respondent. Washington Irving Levy, Special Guardian for John R. Westerfield, Jr., and Another, Infants, Appellant.
    Argued February 28, 1952;
    decided March 14, 1952.

      Washington Irving Levy, appellant in person.

      Arthur W. Siegrist, Albert B. Maginnes and Frederic S. Nathan for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Froessel, JJ.


text:
    Jean Garson, as Administratrix of the Estate of Elliot Garson, Deceased, Appellant, v. R. H. Macy & Co., Inc., et al., Respondents.
    Argued February 28, 1952;
    decided March 14, 1952.

      Sidney E. Alper and J. Stanley Cohen for appellant.

      William L. Shumate for R. H. Macy & Co., Inc., respondent.

      John J. Stewart and John P. Smith for Gem Crib and Cradle Company, respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Esther Leventhal, Appellant and Respondent, v. Cinema Realty & Leasing Corp., Respondent, and Jean Jacobs, Doing Business as Jeannes at 8 West 170th Street, Bronx, New York, Appellant.
    Submitted February 29, 1952;
    decided March 14, 1952.

      I. Ben Greenman for plaintiff, appellant and respondent.

      Williams E. Lyons for defendant, appellant.

      Patrick E. Gibbons and Raymond J. Scully for defendant, respondent.
   On appeal by plaintiff and defendant Jacobs from the judgment of the Appellate Division (1) reversing the order of the Supreme Court denying the motion of defendant Cinema to dismiss plaintiff’s complaint, and (2) dismissing defendant Jacob’s cross complaint against defendant Cinema: Judgment affirmed, with costs to defendant Cinema. Appeal by defendant Jacobs from so much of the judgment of the Appellate Division as affirms the order of the Supreme Court denying her motion to dismiss the complaint, dismissed as nonfinal, without costs. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    N. R. M. Garage Corp., Respondent, v. Morris Feig Garage Corp., Appellant. (Two proceedings.)
    Argued January 15, 1952;
    decided March 14, 1952.

      Samuel Shapiro and Isidore Cohen for appellant.

      Benjamin Mosher and George H. Colin for Cities Service Oil Company, amicus curiæ, in support of appellant’s position.

      Elmer J. Hoare, Sidney G. Madenberg and Francis O. Mayer for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Raphael Moscarelli, Appellant.
    Argued January 24, 1952;
    decided March 14, 1952.

      Edward H. Levine and Arnold D. Roseman for appellant.

      Miles F. McDonald, District Attorney (Frank Di Lalla of counsel), for respondent.
   Judgments reversed and information dismissed on the ground that the evidence is insufficient in law to warrant a finding of guilt beyond a "reasonable doubt. (People v. Richardson, 287 N. Y. 563; People v. Carpenito, 292 N. Y. 498.) No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Joseph E. MacFarland, Appellant, against Town of North Hempstead, Respondent.
    Argued February 29, 1952;
    decided March 14, 1952.

      Harry Pfeffer for appellant.

      Walter L. Glenney for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Froessel, JJ.


text:
    In the Matter of the Estate of Andrew J. Jones, Deceased. Myra J. Harris, as Executrix of Andrew J. Jones, Deceased, Appellant; Andrew J. Jones et al., Respondents.
    Argued February 28, 1952;
    decided March 14, 1952.

      Harry K. Morton for appellant.

      Albert E. Hollis and Nicholas J. Changose for respondents.
   Appeal dismissed, with costs, upon the ground that the judgment ” and order appealed from do not finally determine the proceeding within the meaning of the Constitution. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Tilo Roofing Company, Inc., Respondent, v. William R. Hanly, Appellant.
    Argued March 3, 1952;
    decided March 14, 1952.

      John M. Wilson for appellant.

      Walter A. Swan for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Franklin C. Humbert, Appellant and Respondent, v. State of New York, Respondent and Appellant.
    (Claim No. 29771.)
    Argued February 28, 1952;
    decided March 14, 1952.

      Daniel F. Mathews for appellant and respondent.

      Nathaniel L. Goldstein, Attorney-General (Ronald E. Coleman and Wendell P. Brown of counsel), for respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Mary R. Desimone, as Administratrix of the Estate of Carmen Desimone, Deceased, Plaintiff, v. C. J. Burgess Co. et al., Defendants. Celanese Corporation of America, Defendant and Third-Party Plaintiff-Appellant, v. Central City Roofing Co., Inc., Third-Party Defendant-Respondent.
    Argued March 3, 1952;
    decided March 14, 1952.

      William B. Mangin for appellant.

      Martin F. Kendrick and Laurence E. Sovik for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Consolidated Service Stations, Inc., Appellant, v. Cities Service Oil Company et al., Respondents.
    Argued March 4, 1952;
    decided March, 14, 1952.

      Hyman Grill and Henry A. Panoff for appellant.

      Benjamin Mosher and George H. Colin for respondents.
   Order of Appellate Division reversed and that of Appellate Term affirmed, with costs in this court and in the Appellate Division on the authority of N. R. M. Garage Corp. v. Feig Garage Corp. (supra, p. 922), decided herewith. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Field and Froessel, JJ.


text:
    Consolidated Service Stations, Inc., Respondent, v. Cities Service Oil Company, Appellant.
    Argued March 4, 1952;
    decided March 14, 1952.

      Benjamin Mosher and George H. Colin for appellant.

      Hyman Grill and Henry A. Panoff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Stephen J. Peirano, Appellant and Repondent, v. Augustus Sbarboro, Respondent and Appellant.
    Submitted March 10, 1952;
    decided March 14, 1952.

      Andrew Sbarboro for motion.

      Monroe J. Cahn opposed.
   Motion denied and plaintiff’s appeal dismissed upon his stipulation,


text:
    Josh Ferguson, as Administrator of the Estate of Herman Newton, Deceased, Respondent, v. City of New York et al., Appellants.
    Argued March 10, 1952;
    decided April 17, 1952.

      Denis M. Hurley, Corporation Counsel (Alfred Weinstein and Seymour B. Quel of counsel), for appellants.

      Samuel Korb for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Fred Arnold, Appellant, v. Thomas A. Twomey et al., Respondents.
    Argued March 6, 1952;
    decided April 17, 1952.

      Emanuel Redfield for appellant.

      Denis M. Hurley, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for respondents.
   Order affirmed, with costs. Questions certified answered in the negative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Emanuel De Maio, Appellant.
    Argued March 3, 1952;
    decided April 17, 1952.

      Patrick F. Dempsey and N. Henry Lindenauer for appellant.

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Jack Goldstein et al., Appellants, against Joseph A. McNamara et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Argued March 12, 1952;
    decided April 17, 1952.

      Leopold V. Rossi for appellants.

      Denis M. Hurley, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York ex rel. James McCreery Realty Corp., Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Submitted February 29, 1952;
    decided April 17, 1952.

      Patrick A. Bolger and Robert J. Bolger for appellant.

      Denis M. Hurley, Corporation Counsel (Edith I. Spivack and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Frank M. Swacker, Appellant, v. Hugh F. O’Donnell, Respondent.
    Argued March 5, 1952;
    decided April 17, 1952.

      Samuel M. Lane and Claus Motulsky for appellant.

      William Francis Corson and Daniel F. Cohalan, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Hana Spicehandler, Appellant, v. City of New York, Defendant, and William Cohen, Respondent.
    Argued March 10, 1952;
    decided April 17, 1952.

      Louis L. Friedman for appellant.

      Francis J. Healy and Frederick Mellor for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Bernard A. Smith, Jr., et al., as Executors and Trustees under the Will of Bernard A. Smith, Deceased, Appellants, v. Zurich General Accident & Liability Insurance Company, Limited, Respondent.
    Argued March 5, 1952;
    decided April 17, 1952.

      George A. Raftery, Arthur F. Driscoll and Edward J. Toner for appellants.

      Sidney A. Schwartz and Edward Ash for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Edward M. Garlock, Appellant and Respondent, v. Pantepec Oil Company, C. A., Respondent and Appellant.
    Argued March 7, 1952;
    decided April 17, 1952.

      Edward M. Garlock, appellant and respondent in person.

      Joseph A. McManus and Walter R. Barry for respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Henry R. Winthrop, Respondent, against Spencer E. Bates et al., Constituting the Tax Commission of the State of New York, Appellants.
    Argued March 14, 1952;
    decided April 17, 1952.

      Nathaniel L. Goldstein, Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for appellants.

      F. Walter Bliss for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Rosalie A. Luongo, an Infant, by Rose Luongo, Her Guardian ad Litem, Appellant, v. City of Geneva, Respondent.
    Argued February 29, 1952;
    decided April 17, 1952.

      M. Maurice Chacchia for appellant.

      James M. Ryan for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Dye, Fuld and Froessel, JJ. Dissenting: Desmond, J.


text:
    Frank E. Nash, Doing Business under the Name of Frank E. Nash Fence Company, Appellant, v. Frank Mennan, as President of Local 580 of the International Association of Bridge, Structural and Ornamental Iron Workers, et al., Respondents.
    Argued March 3, 1952;
    decided April 17, 1952.

      Garry J. Fury for appellant.

      Harold Stern for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 304 N. Y. 594.]


text:
    Dunbar Camps, Inc., Appellant and Respondent, v. Sol Amster et al., Respondents and Appellants, et al., Defendants.
    Argued March 4, 1952;
    decided April 17, 1952.

      Benjamin Heller and Martin H. Selman for appellant and respondent.

      Gabriel B. Schwartz and Ira Koenig for respondents and appellants.
   On appeal by plaintiff: Judgment affirmed, with costs. Appeal by defendants dismissed upon the ground that the order sought to be reviewed does not finally determine the action within the meaning of the Constitution. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of John R. Duncan, Respondent, against Odora Company et al., Appellants, and Aggregate Trust Fund, State Insurance Fund, Respondent. Workmen’s Compensation Board, Respondent.
    Argued March 13, 1952;
    decided April 17, 1952.

      S. Chandler Fraser for appellants.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Arbitration between Sun Rubber Company, Appellant, and New York Creditmen’s Adjustment Bureau, Inc., Respondent.
    Argued March 10, 1952;
    decided April 17, 1952.

      Kenneth W. Greenawalt, Martin A. Schenck and John H. Barber for appellant.

      George M. Aronwald and Abraham H. Geffner for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Margaret Bealer, Respondent, against Town of Amherst et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued March 13, 1952;
    decided April 17, 1952.

      Frank C. Roberts for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Joseph Louis Paonessa, Appellant.
    Argued March 12, 1952;
    decided April 17, 1952.

      Stephen Bienieck for appellant.

      Raymond C. Baratta, District Attorney (James E. Carroll, Jr., of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 304 N. Y. 560.]


text:
    Time, Incorporated, Appellant, v. Life Color Laboratory, Inc., Respondent.
    Argued March 3, 1952;
    decided April 17, 1952.

      Harold R. Medina, Jr., and Albert Rosenblum for appellant.

      Andrew Eckel and Richard T. Graham for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Donald S. Bayley et al., Respondents, against William B. Adams et al., Constituting the Zoning Board of Appeals of the Town of Bedford, et al., Respondents, and Empire Sand & Stone Corporation, Appellant.
    Argued March 4, 1952;
    decided April 17, 1952.

      John J. Dillon, Menahem Stim and Roy M. Cohn for appellant.

      Joseph Henry Esser for Donald S. Bayley and others, petitioners-respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York ex rel. Roxy Theatre, Inc., Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued March 5, 1952;
    decided April 17, 1952.

      William W. Owens and Robert E. Frisch for appellant.

      Denis M. Hurley, Corporation Counsel (Edith I. Spivack and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    City Bank Farmers Trust Company, as Trustee under Two Deeds of Trust, Dated August 15, 1919, Made by William W. Astor, Appellant, v. J & J Slater, Inc., Respondent.
    Argued March 6, 1952;
    decided April 17, 1952.

      Elmer J. Hoare for appellant.

      Edmond B. Butter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Evelyn D. Kehoe, Respondent, against London Guarantee & Accident Insurance Co., et al., Appellants. Workmen's Compensation Board, Respondent.
    Argued March 13, 1952;
    decided April 17, 1952.

      Neile F. Towner and Julian B. Erway for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Mattydale Shopping Center, Inc., Appellant, v. State of New York, Respondent.
    (Claim No. 29991.)
    Argued March 4, 1952;
    decided April 17, 1952.

      Martin Lippman, Emanuel Greenberg and William Jay Lippman for appellant.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for respondent.
   Judgment of the Appellate Division reversed, and that of the Court of Claims affirmed, with costs in this court and in the Appellate Division, upon the ground that the finding of the Court of Claims in respect of the value of the appropriated property is in accordance with the weight of the evidence. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    John J. Harvey et al., Surviving Partners Doing Business under the Name of John J. Harvey Company, Appellants and Respondents, v. State of New York, Respondent and Appellant.
    (Claim No. 30277.)
    Argued March 6, 1952;
    decided April 17, 1952.

      J. Walter Augar for appellants and respondents.

      Francis J. Maloney for Siegfried Construction Co., Inc., amicus curiæ, in support of appellants’ position.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Sanford R. Cowan et al., Appellants and Respondents, v. Residential Builders of Russell Gardens, Inc., Respondent and Appellant.
    Submitted April 7, 1952;
    decided April 18, 1952.

      Walter D. Grant for motion.

      Myron Kommel opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days from the date of this order plaintiffs serve and file the required undertaking on appeal and pay $10 costs, in which events motion denied. Motion for an order directing plaintiffs to pay half the costs of printing the record on appeal denied.


text:
    Katherine Z. Fry, Respondent, v. Samuel E. Fry, Appellant.
    Submitted April 7, 1952;
    decided April 18, 1952.

      William A. Kirk for motion.

      Henry L. Bayles opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days from the date of this order appellant serves and files the required undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    Sol Kass et al., Respondents, v. Ralph Kaplan et al., Appellants.
    Submitted April 7, 1952;
    decided April 18, 1952.

      Harry C. Brenner for motion.

      James Dempsey opposed.
   Motion denied.


text:
    Edwin R. La Vin, Respondent, v. Russell C. La Vin et al., Defendants, and Sanford Hotel Corp., Appellant.
    Submitted April 7, 1952;
    decided April 18, 1952.

      Meyer Kraushaar for motion.

      Leo E. Sherman and Irving I. Hartman opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of the Arbitration between Stern, Morgenthau & Co., Inc., Appellant, and J. A. Kirsch Co., Respondent.
    Submitted April 7, 1952;
    decided April 18, 1952.

      Albert N. Perretta and Alexander P. Blanck for motion.

      Leonard Feldman opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted April 7, 1952;
    decided April 18, 1952.
   Motion to amend remittitur granted, in part, as indicated. Return of remittitur requested and, when returned, it will be amended by the addition of the following: Questions under the Federal Constitution were presented and necessarily passed upon by this court, viz.: (1) whether the admission in evidence of the confession of the defendant Cooper violated his rights under the Fourteenth Amendment to the Constitution of the United States; (2) whether the admission in evidence of the confession and the prior and subsequent oral statements of the defendant Stein violated his rights under the Fourteenth Amendment of the Constitution of the United States; (3) whether the admission in evidence of the confessions of the defendants Cooper and Stein violated the rights of the defendant Wissner under the Fourteenth Amendment of the Constitution of the United States; (4) whether the refusal to sever the trial of the defendant Wissner from that of the defendants Cooper and Stein violated the rights of the defendant Wissner under the Fourteenth Amendment of the Constitution of the United States; (5) whether the refusal of the Trial Judge to delete from the confessions of defendants Cooper and Stein all references therein made to the defendant Wissner as a participant in the crime violated the rights of the defendant Wissner under the Fourteenth Amendment of the Constitution of the United States. The Court of Appeals held that the rights of the defendants under the Fourteenth Amendment of the Constitution of the United States had not been violated or denied. [See 303 N. Y. 856.]


text:
    In the Matter of the Application of the Grand Jury of the County of Kings. Bartholomew Nicastro, Appellant; Raymon H. Chadeayne, Foreman of Said Grand Jury, Respondent.
    Argued March 13, 1952;
    decided April 23, 1952.

      Sydney Rosenthal and Keal Kaufman for appellant.

      Miles F. McDonald, District Attorney (Aaron E. Koota and Julius Helfand of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Armand Denis et al., Appellants, v. R. J. Reynolds Tobacco Company et al., Respondents, et al., Defendants.
    Argued April 7, 1952;
    decided April 23, 1952.

      Harold J. Sherman for appellants.

      Gerald J. Dunworth for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of Purcell Robbins, Respondent, against George A. Frohlich et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted March 11, 1952;
    decided April 23, 1952.

      Bernard F. Farley for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order of Appellate Division and award of Workmen’s Compensation Board reversed and claim dismissed, without costs, upon the ground that there is no substantial evidence to sustain the finding that the employee’s death resulted from an accidental injury suffered while he was engaged upon his work. No opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Fuld and Froessel, JJ. Conway and Dye, JJ., dissent upon the ground that there is ample evidence to support the finding of the Workmen’s Compensation Board that there was a causal relationship between the employee’s accident and his death.


text:
    In the Matter of William E. Leonard, as Acting Commissioner of Correction of the State of New York, Appellant, against Frank W. Barnes, as Acting County Judge of the County Court of Broome County, et al., Respondents.
    Argued April 15, 1952;
    decided April 23, 1952.

      Nathaniel L. Goldstein, Attorney-General (Herman N. Harcourt and Wendell P. Brown of counsel), for appellant.

      Frank W. Barnes, respondent in person.

      Harry S. Travis for Paul L. Hayner, respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Odessa F. Howard, Respondent, v. Handler Bros. & Winell, Inc., Appellant.
    Argued March 11, 1952;
    decided April 23, 1952.

      John M. Aherne and John J. Martin for appellant.

      Samuel D. Pressman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Probate of the Will of Rose Moskowitz, Deceased. Julius S. Moskowitz, Respondent; Annette Rich, Appellant.
    Argued April 14, 1952;
    decided April 23, 1952.

      Milton I. Newman and Emil N. Baar for appellant.

      Alex Rubin and Daniel Ginsberg for respondent.
   Order affirmed, with costs to both parties payable out of the estate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 304 N. Y. 593.]


text:
    Erna Schlesinger, Appellant, v. Italian Line, “Italia” Societa Anonima di Navigazione of Genoa, Respondent.
    Submitted March 6, 1952;
    decided April 23, 1952.

      Benjamin H. Siff and Jack Flamhaft for appellant.

      Peter Keber for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Campo Corporation et al., Appellants, against Benjamin F. Feinberg et al., Constituting the Public Service Commission of the State of New York, et al., Respondents.
    Argued March 11, 1952;
    decided April 23, 1952.

      Morway Picket and Harold J. Treanor for Campo Corporation and others, appellants.

      Charles G. Blakeslee and John J. Donohue for 219 West 81 St. Corporation, appellant.

      Lawrence E. Walsh, Counsel (George H. Kenney, Samuel R. Madison, Arthur Brooks and Frank C. Bowers of counsel), for Public Service Commission, respondent.

      Cameron R. MacRae, Jacob H. Goetz and Arthur L. Webber for Consolidated Edison Company of New York, Inc., respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Abraham W. Burack et al., Appellants, v. City of Mount Vernon, Respondent.
    Argued April 16, 1952;
    decided April 23, 1952.

      J. Henry Esser for appellants.

      Harry Zimmerman, Corporation Counsel (William Macy of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Cristina de B. Patino, Respondent, v. Antenor Patino, Appellant.
    Argued March 13, 1952;
    decided April 23, 1952.

      Lee McCanliss and William L. Lynch for appellant.

      J. Harlin O’Connell and William Russell Bogert for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Foessel, JJ.


text:
    In the Matter of the Construction of the Will of Jessie E. Grantham, Deceased. Esther Margulies, as Executrix of Jessie E. Grantham, Deceased, et al., Appellants; Charles A. Lott, as Executor of Ethal M. Lott, Deceased, Respondent.
    Argued April 15, 1952;
    decided April 23, 1952.

      David H. Moses, David Coral and Robert E. Rew, Jr., for Esther Margulies, appellant.

      Lawrence G. Williams and Natalie Couch Williams for Ethal Outwater, appellant.

      Kenneth H. Guild and Henry F. Werker for respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Herman Drucker, Plaintiff, v. Public Service Interstate Transportation Company et al., Defendants. Anthony Corpolongo, Appellant, v. Public Service Interstate Transportation Company et al., Respondents.
    Submitted April 7, 1952;
    decided April 23, 1952.

      Hyman Herman and Oliver J. Harper for motion.

      John G. Coleman and Philip J. O’Brien opposed.
   Motion denied, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right.


text:
    The People of the State of New York ex rel. Joseph D. McGoldrick, as State Rent Administrator, Respondent, against Christopher West et al., Appellants.
    Submitted April 7, 1952;
    decided April 23, 1952.

      Sidney Roffman for motion.

      Robert H. Schaffer and Henry S. Halprin opposed.
   Motion dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. [See 304 N. Y. 645.]


text:
    Ronald H. Farah, an Infant, by Frances Farah, His Guardian ad Litem, Appellant, v. Henry Farah, Respondent.
    Submitted April 21, 1952;
    decided April 23, 1952.
   Motion to amend remittitur denied, with $10 costs. [See 303 N. Y. 865.]


text:
    Richard A. Jackson, Appellant, v. Symington Gould Corporation et al., Respondents, et al., Defendants. Richard A. Jackson, Jr., an Infant, by Richard A. Jackson, His Guardian ad Litem, Appellant, v. Symington Gould Corporation et al., Respondents, et al., Defendants. Arlen Jackson, an Infant, by Richard A. Jackson, His Guardian ad Litem, Appellant, v. Symington Gould Corporation et al., Respondents, et al., Defendants.
    Submitted April 21, 1952;
    decided April 23, 1952.

      Melvin H. Zurett for motion to dismiss appeal.

      William L. Clay for cross motion.
   Motion to dismiss appeals denied.

Motion for leave to file an amended undertaking denied.


text:
    Sholiem Jollowsky, Respondent, v. George L. Shaw, Appellant.
    Submitted April 21, 1952;
    decided April 23, 1952.

      Frank Kreitzberg and Norman Annenberg for motion.

      Benjamin J. Taruskin opposed.
   Motion dismissed. (See Civ. Prac. Act, § 589, subd. 1, cl. [b]; subd. 2, cl. [b].)


text:
    Nathan Steinberg et al., Appellants and Respondents, v. Forest Hills Golf Range, Inc., et al., Respondents and Appellants.
    Submitted April 14, 1952;
    decided April 23, 1952.
   Motion for reargument or," in the alternative, for a new trial denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 577.]


text:
    The People of the State of New York, Respondent, v. Frank Gibbs, Appellant.
    Submitted March 3, 1952;
    decided April 23, 1952.
   Motion for reargument or, in the alternative, to amend remittitur denied. [See 303 N. Y. 804.]


text:
    David Barnaba et al., Appellants, v. Skenandoa Rayon Corporation et al., Respondents. (And 39 Other Similar Actions.)
    Submitted April 7, 1952;
    decided April 23, 1952.

      Anthony S. Falcone and Ernest E. De Rosa for motion.

      Willard R. Pratt for Skenandoa Rayon Corporation, respondent, opposed.

      James C. O’Shea and James T. Griffin for J. T. Baker Chemical Co., respondent, opposed.
   Motion dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Railroad Waterproofing Corp., Appellant, v. Memphis Supply, Inc., Defendant. Murdock Acceptance Corporation, Appellant and Respondent, v. Hempstead Motor Truck Sales Co., Inc., et al., Defendants, and Railroad Waterproofing Corp., Respondent and Appellant.
    Submitted April 7, 1952;
    decided April 23, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 849.]


text:
    Arlynne Macfadden, Appellant, v. Berwyn Macfadden, Respondent.
    Submitted April 7, 1952;
    decided April 23, 1952.

      Samuel Finkelstein for motion.

      Parnell J. T. Callahan opposed.
   Motion dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Clara Hammer, Respondent, v. George Hammer, Appellant.
    Submitted April 7, 1952;
    decided April 23, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 481.]


text:
    Salvatore Giordano, Respondent, v. Frank J. Quigan, Appellant. Salvatore Giordano, Respondent, v. Ralph Willis et al., Appellants.
    Submitted April 14, 1952;
    decided April 23, 1952.

      Archibald Palmer for motion.

      Jonas J. Shapiro opposed.
   Motion dismissed, with $10 costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of New York State Licensed Bail Agent’s Association, Inc., et al., Appellants, against John M. Murtagh, as Chief City Magistrate of the Magistrates’ Court of the City of New York, et al., Respondents.
    Submitted April 7, 1952;
    decided April 23, 1952.

      Lawrence Kovalsky, Frank R. Klein and David Goldstein for motion.

      Denis M. Hurley, Corporation Counsel (Seymour B. Quel and Anthony Curreri of counsel), opposed.
   Motion denied, with $10 costs and necessary printing disbursements.


author: Lewis, J.

text:
    David Alpert et al., Doing Business as Z. Alpert & Sons, Respondents, v. Admiration Knitwear Co., Inc., Appellant.
    Argued February 28, 1952;
    decided April 17, 1952.

      James F. Twohy for appellant.
    I. A contract, which includes a provision for arbitration in the event of a dispute, is no different from any other agreement and is, therefore, subject to the elementary laws of contract. (Matter of Zimmerman [Cohen], 236 N. Y. 15; Matter of Manufacturers Chemical Co. [Caswell, Strauss & Co.], 259 App. Div. 321.) II. The decision and order of the Appellate Division is contrary to law in that the court failed to consider the effect of the failure of respondents to comply with the condition precedent expressly stated in the contract. (Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, 297 N. Y. 519; Matter of Brookside Mills [Raybrook Textile Corp.], 276 App. Div. 357; Matter of Kahn [National City Bank], 284 N. Y. 515; Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467; Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], 300 N. Y. 262.) III. Respondents’ contention of bad faith is immaterial. IV. The question of good faith is not an issue under the facts. (Matter of Tuttman [Kattan, Talamas Export Corp.], 274 App. Div. 395; Heller & Henretig, Inc., v. 3620-168th St., Inc., 302 N. Y. 326.)

      Leo E. Sherman, William I. Alpert and Abraham Alpert for
    respondents.
    The reasons given by appellant for refusing to submit the controversy to arbitration raise questions on the merits “ arising out of or relating ” to the contract and are for the arbitrators. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Cantor, 261 N. Y. 6; Matter of Zimmerman [Cohen], 236 N. Y. 15; Matter of Manufacturers Chemical Co. [Caswell, Strauss & Co.], 259 App. Div. 321; Matter of Wenger Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199; Matter of Tuttman [Kattan, Talamas Export Corp.], 274 App. Div. 395; Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], 300 N. Y. 262; Matter of Graphite Metallizing Corp. [De Rosa], 271 App. Div. 839.)
   Lewis, J.

We are to determine whether in the commercial transaction which gave rise to this proceeding there remains between the parties an arbitrable dispute. That question is one of law. (Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], 300 N. Y. 262, 264.)

On May 12, 1950, the petitioners-respondents — to whom reference will be made as the purchasers — entered into a written contract for the purchase by them from the appellant — the seller — of a quantity of woolen material. The fact is of some importance that in preparing the written contract to contain a recital of terms upon which agreement had been reached, the purchasers chose one of their own contract forms formerly used by them in transactions where they were sellers. The adaptation was accomplished by one of the purchasers, who struck from the form their name as sellers and in place thereof wrote in the name of the appellant. It is thus made clear that, by adapting one of their own contract forms to the requirements of the agreement here involved, the purchasers were fully aware of the terms thereof and the purpose to be served thereby. It was also noted on the front of the agreement that the sale was to be F.O.B. at Philadelphia and that shipment was to be 11 at once ”.

Over the signatures of the two parties, which appear on the front of the single sheet upon which the contract was written, there was printed the following:

THE CONDITIONS OF SALE PRINTED ON THE BACK HEREOF ARE HEREBY MADE PART OF THIS CONTRACT.

“ The undersigned hereby orders the above goods upon terms as stated, including the terms and conditions printed on the bach of this contract and forming a part hereof

On the back of the contract were printed fifteen “ CONDITIONS OF SALE ”, among which is the following: “2. * * * if at any time, in the sole opinion of the Seller, the financial responsibility of the Purchaser shall become impaired or unsatisfactory to the Seller cash payments in advance of delivery may be required. Upon failure to pay any amount due to the Seller under this * * * contract, the Seller may at its option terminate this contract * * * as to further deliveries, and no forbearance or course of dealings shall affect this right of the seller. * * * ” (Emphasis supplied.)

Exercising the arbitrary right which the parties to the transaction, by their written agreement, had seen fit to accord to the seller, the following letter was8 sent to the purchasers by the seller under date of June 8, 1950:

“ ADMIRATION KNITWEAR CO., Inc.

347-5th Avenue

New York 16, New York

June 8th, 1950

Z. Alpert & Sons

220-4th Avenue

New York 3, New York

Gentlemen:

In reference to our contract of May 12th, 1950 it is my opinion that your financial responsibility is unsatisfactory under all the circumstances of this sale.

I am therefore demanding that you pay in advance of any shipment of the woolens that may come from Philadelphia. Will you kindly contact me immediately relative to a disposition of this matter as I am ready, willing "and able to deliver the goods upon payment.

Unless I hear from you relative to these arrangements on or before June 16th, 1950,1 shall deem the contract abandoned and will proceed to dispose of the goods in other channels.

Yours very truly,

(signed) David Schwartz

David Schwartz

President ”

Following failure by the purchasers to comply with the seller’s letter demanding cash payment in advance of shipment, the purchasers applied at Special Term for an order directing that the controversy, thus created between them and the seller, proceed to arbitration under the following condition ” in their contract:

“ 8. Any complaint, controversy or question which may arise with respect to this contract that cannot be settled by the parties thereto, shall be referred to arbitration in the following manner: * * *

(b) All other controversies arising out of or relating to this contract, or breach thereof, shall be settled by arbitration in accordance with the Buies, then obtaining of the American Arbitration Association, and judgment upon the award rendered may be entered in the highest court of the forum, State or Federal, having jurisdiction.”

At Special Term the order for which the purchasers applied was denied. At the Appellate Division the order of Special Term was reversed — two Justices dissenting — and an order was granted in accord with the purchasers’ original application. The case comes to us upon the seller’s appeal taken as of right.

We read the decisive “ condition ” numbered “ 2 ” of the contract (quoted supra) as a plain provision whereby the purchasers gave to the seller the absolute right to require “ cash payments in advance of delivery ” whenever, in its “ sole opinion ”, the financial responsibility of the purchasers became impaired or unsatisfactory to the Seller ”. In the exercise of that contract right the record shows that the seller, by its letter of June 8, 1950 — concededly received by the purchasers — demanded payment in advance of any shipment, the ground of such demand being that in the seller’s opinion the financial responsibility of the purchasers was unsatisfactory. Such letter also gave notice to the purchasers that the seller was then “ ready, willing and able ” to make delivery of the goods upon advance payment therefor; that the purchasers would have eight days within which to arrange for such payment, and that upon a failure by the purchasers within that time to comply with the seller’s demand, the contract would be deemed abandoned and the seller would make other disposition of the woolens.

Concluding, as we do, that the seller’s demand and notice to the purchaser, contained in its letter of June 8, 1950, was in accord with its right expressly provided by the contract, we think the case falls within the rule stated in Matter of General Elec. Co. (United Elec. Radio & Mach. Workers) (300 N. Y. 262, 264, supra): “ If, under the unambiguous terms of an agreement calling for arbitration, there has been no default, the court may not make an order compelling a party to proceed to arbitration (Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, affd. 297 N. Y. 519). Whether or not a bonafide dispute exists is a question of law (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199, 202-203). If there is no real ground of claim, the court may refuse to allow arbitration, although the alleged dispute may fall within the literal language of the arbitration agreement.”

The record before us does not support the suggestion that, in view of the contract phrase 6 £ ship at once ’ ’, the seller was in default on June 8, 1950, by reason of nondelivery. From a provision in the contract giving the seller an option of one week to repurchase, the inference may fairly be drawn that delivery would not be made before the expiration of that option. We also are informed by the reply affidavit filed at Special Term by the purchasers in support of their application, that in ££ the first part of June, I [Leon Alpert] * * * asked him [the seller’s president] to * * * ship the merchandise * * It thus appears that early in June the buyer still desired the seller to perform its obligation under the contract. In other words, the purchasers did not at that time —£ 1 the first part of June ” — consider the seller in default, nor had they elected to cancel the contract for that reason. As we have seen it was shortly thereafter — on June 8, 1950, still in the ££ first part of June ”— that the seller made his demand under the contract for payment in advance of delivery, with which the purchasers have failed to comply. In those circumstances, there is no support for the suggestion that the seller had breached the contract by its failure to deliver. On the contrary it was the purchasers ’ failure to tender payment — properly requested by the seller pursuant to the terms of the contract — which has resulted in the termination of the contract.

The assertion in the purchasers’ reply affidavit that their financial rating in the field of commerce is a good safe credit risk ” has not escaped our attention. It is, however, in our view, irrelevant in the light of the unequivocal language in the contract by which the purchasers gave the seller the absolute right “ at any time ” to require cash payment in advance of delivery of the woolens if “ in the sole opinion of the Seller, the financial responsibility of the Purchaser shall become * * * unsatisfactory to the Seller ”. (Emphasis supplied.)

Absent any showing of a tender by the purchasers pursuant to the seller’s demand, no conclusion is warranted by the record before us other than that, after June 16, 1950, the contract no longer was in existence. Accordingly, we agree with the court at Special Term that no issue remained which properly could be submitted for decision to arbitrators. (Matter of Kramer & Uchitelle, Inc., 288 N. Y. 467, 471; Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], supra; and see Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 297 N. Y. 519.)

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division.

Lotjghran, Oh. J., Conway, Dye, Fuld and Froessel, JJ., concur with Lewis, J.; Desmond, J., dissents for the reasons stated by the Appellate Division in its memorandum decision here, as amplified by its reference to the present case in Matter of Minkin (Halperin) (279 App. Div. 226, 230, 231).

Ordered accordingly.


author: Fboessel, J.

text:
    Lillian B. Hettich, Appellant, v. Ernest L. Hettich, Respondent.
    Argued January 10, 1952;
    decided April 17, 1952.

      Clifton F. Weidlich for appellant.
    I. Special Term was right in denying defendant’s motion for summary judgment on the ground of the law of the case, defendant having twice previously, without success, sought the same relief in the Supreme Court and in the Appellate Division. The Appellate Division erred in ignoring the basis of the decision below and in reconsidering defendant’s renewed motion for summary judgment, made without leave of court or presentation of any new facts long after defendant’s time to appeal from the original denial of his motion had expired. (New York Central R. R. Co. v. Beacon Milling Co., 184 Misc. 187; Ellis v. Central Hanover Bank & Trust Co., 198 Misc. 912.) II. The Appellate Division erred in disregarding defendant’s concession in open court that the 1932 agreement survived the Nevada divorce decree. (QueckBerner v. Macy, 240 N. Y. 341; Mann v. Simpson & Co., 286 N. Y. 450; Matter of Malloy, 278 N. Y. 429; Pines v. Beck, 300 N. Y. 181; Hine v. New York Elevated R. R. Co., 149 N. Y. 154.) III. Courts shall not brush aside or abrogate separation agreements intended to survive divorce, unless directly impeached by court action or mutually rescinded. (Galusha v. Galusha, 116 N. Y. 635; Goldman v. Goldman, 282 N. Y. 296; Lynn v. Lynn, 302 N. Y. 193; Clark v. Fosdick, 118 N. Y. 7; Weintraub v. Weintraub, 302 N. Y. 104; Hughes v. Cuming, 165 N. Y. 91.) IV. The Appellate Division reached its decision through reasoning predicated upon a legalistic " fiction " unrelated to the facts, contrary to the public policy of New York (Domestic Relations Law, § 51) and to the holding in Flood v. Thiesing (298 N. Y. 700). (Galusha v. Galusha, 116 N. Y. 635; Baird v. Erie R. R. Co., 210 N. Y. 225; Equitable Co-op. Foundry Co. v. Hersee, 103 N. Y. 25; Kyff v. Kyff, 286 N. Y. 71; Flood v. Thiesing, 273 App. Div. 548, 298 N. Y. 700; Jaeckel v. Jaeckel, 179 Misc. 994; Bell v. Bell, 171 Misc. 605.) V. Plaintiff’s motion for partial summary judgment should have been granted. No triable issue exists in connection with the 1935 agreement. VI. The Nevada decree did not in terms or by implication nullify the agreement in suit. (Lynn v. Lynn, 302 N. Y. 193; Aseltine v. Second Judicial Dist. Court, 57 Nev. 269; Coe v. Coe, 334 U. S. 378, 71 A. 2d 514 [Me.]; Holahan v. Holahan, 191 Misc. 47, 298 N. Y. 798; Welch v. Chapman, 296 Mass. 487; Schillander v. Schillander, 307 Mass. 96; Carey v. Mackie, 82 Me. 516.)

      George Trosk for respondent.
    I. The Nevada divorce decree constitutes a bar to so much of plaintiff’s claim as is for payments alleged to have accrued under the 1932 agreement on and after September 1, 1935, the date from which payments under the decree were duly made. Recovery for any period prior thereto is barred by the Statute of Limitations. (Fuller v. Helvering, 105 F. 2d 903, 310 U. S. 69; Lynn v. Lynn, 302 N. Y. 193; Tallinger v. Mandeville, 113 N. Y. 427; Manufacturers Trust Co. v. Gray, 278 N. Y. 380; Third Nat. Bank v. Guenther, 123 N. Y. 568; Matter of Chandler, 175 Misc. 1029; Bowman v.
      Bowman, 271 App. Div. 943; Gehring v. Gehring, 262 App. Div. 1065.) II. The parties were competent to abandon and rescind the 1932 agreement by mutual consent. The first affirmative defense of abandonment and rescission is, accordingly, sufficient in law. This defense raised issues of fact which, if not for the judgment in defendant’s favor, would require a trial. (Woods v. Bard, 285 N. Y. 11; Randolph v. Field, 165 App. Div. 279; Sockman v. Sockman, 252 App. Div. 914; Boehm v. Boehm, 262 App. Div. 104; McCreery v. Day, 119 N. Y. 1; Imperator Realty Co. v. Tull, 228 N. Y. 447; Harris v. Shorall, 230 N. Y. 343.) III. The 1935 agreement, though violative of section 51 of the Domestic Relations Law, is a bar to recovery by plaintiff under the 1932 agreement insofar as executed. Consequently, the defenses of waiver and performance during the period referred to in the complaint are sufficient in law. Defendant’s papers in support of these defenses raised issues of fact which, if not for the judgment in defendant’s favor, would require a trial. (Manufacturers Trust Co. v. Gray, 278 N. Y. 380; Third Nat. Bank v. Guenther, 123 N. Y. 568; Matter of Chandler, 175 Misc. 1029; Bowman v. Bowman, 271 App. Div. 943; Gehring v. Gehring, 262 App. Div. 1065; Tallinger v. Mandeville, 113 N. Y. 427.)
   Fboessel, J.

In an action upon a separation agreement executed on July 1, 1932, whereunder defendant agreed to pay plaintiff on and after February 1, 1933, $75 per month during her lifetime (unless she remarried), she alleges the breach of that agreement by defendant from June 1, 1935, to September 1, 1949. We are not concerned with a second cause of action, as no appeal has been taken with respect to the disposition thereof below. The action was brought on October 5, 1949.

Defendant’s answer admits nonpayment of the amount sued for and sets forth four affirmative defenses: (1) that the agreement was mutually “ waived, abandoned, cancelled, and rescinded ” on May 26, 1935; (2) that for a valuable consideration plaintiff waived performance under said agreement during said period and made no demand therefor until September 28, 1949; (3) a partial defense alleges that the parties entered into an agreement on May 27, 1935, whereby defendant was released from all liability under the 1932 agreement from and after the entry of a decree of divorce, and such decree was entered in the State of Nevada on August 16, 1935, in favor of plaintiff upon defendant’s appearance; (4) a partial defense setting up the six-year Statute of Limitations.

Defendant moved for summary judgment on the basis of the third and fourth affirmative defenses, which motion was denied at Special Term but granted in the Appellate Division. The merits were not considered at Special Term, as the court adopted the view that the law of the case had been determined upon a prior appeal. The Appellate Division treated the merits, but in our opinion erred in granting summary judgment to defendant.

The fourth defense, insofar as applicable, is conclusive. Thus, the decisive issue here is whether or not defendant is entitled to summary judgment under the third defense. This in turn depends upon the effect, as disclosed in the record, of the 1935 agreement and the 1935 divorce in the State of Nevada. The 1932 agreement provided solely for the support of plaintiff during her lifetime or until her remarriage, which latter event has not taken place; if she had remarried, the payments were to cease on their son’s attaining his majority; it further provided that “ the disposition of any and all funds received by the [wife] under this agreement shall be in [her] sole discretion ”. It contained no other provision whatsoever for the support of the child, merely giving his custody to plaintiff. The 1935 agreement provided only for the support of the child until his majority (attained November 22, 1943), and it contained plaintiff’s express waiver of all rights to alimony or other support from and after the entry of a contemplated decree of divorce. Because it was entered into “as a fundamental part of their divorce action ’ ’ we held that agreement invalid ánd insufficient as a complete defense (301 N. Y. 447). On that appeal, however, the question of whether the illegal agreement would constitute a partial defense insofar as executed by the parties was left open, with leave to defendant to plead over, as was done.

To the extent that plaintiff received and accepted benefits under the void agreement, she would be precluded from asserting her rights under the 1932 agreement, for in such case the law leaves the parties to an illegal agreement where it finds them (Manufacturers Trust Co. v. Gray, 278 N. Y. 380, 386). However, plaintiff is not now asserting a claim which requires a showing of illegality (cf. Stone v. Freeman, 298 N. Y. 268; Flood v. Thiesing, 298 N. Y. 700; Flegenheimer v. Brogan, 284 N. Y. 268; Carmine v. Murphy, 285 N. Y. 413, 416) but disregards the void agreement as a nullity, in effect attacking it in order to prevent its further consummation. This she may always do, insofar as the invalid agreement is executory (Flood v. Thiesing, supra; Schley v. Andrews, 225 N. Y. 110). Here, it is defendant who affirmatively relies upon illegality and asks the courts to breathe life into the prohibited agreement even after the year 1943, when the parties were no longer rendering actual performance thereunder. This we think he may not do.

The wholly void 1935 agreement of itself does not infect "with invalidity the 1932 agreement nor does it constitute any obstacle to recovery under the earlier, valid agreement. In the year 1943, when their son came of age, the illegal agreement ceased, by its own terms, to require further active performance on either side. It would be paradoxical, to say the least, to hold that the law, which it violates, requires that it be operative for any purpose thereafter. Considerations of public policy require that if defendant is to rely upon that agreement as a defense, he can do so only to the extent that he can show continuing and mutual performance thereunder. This, of course, he cannot do, subsequent to the year 1943. Accordingly, it is our conclusion that from and after November 22, 1943, when their son came of age and plaintiff no longer received any benefits under the void agreement, she became entitled to enforce the 1932 agreement. That she did not actually do so until the year 1949, whatever her reasons for so delaying, presents no legal obstacle to her recovery (Van Nostrand v. Hofer, 275 App. Div. 819, motion for leave to appeal denied 300 N. Y. 764). Consequently, the 1935 agreement is not a defense for the period from 1943 to the commencement of this action.

Neither does the mere existence of the Nevada decree operate as a bar to plaintiff’s cause of action. In the first place, defendant has conceded in his brief below that neither of the agreements executed by the parties became “ merged in, or a part of, the Nevada decree ” and that concession, to say the least, is not without weight (see Mann v. Simpson & Co., 286 N. Y. 450, 459). Furthermore, the assumption by the Appellate Division that plaintiff elected to treat the 1932 agreement as terminated by asking for alimony ” in the Nevada action, that the manifest object of the Nevada decree was to supersede the separation agreement which she had terminated on account of his breach, and to make its own award for the support of herself and son ’ ’ is simply without basis in this record (278 App. Div. 518, 519, 520.) Nowhere does it appear that the wife asked for alimony, and no award was made for her ” support. All that appears in the record in connection with that action is the decree itself. So far as it discloses, the agreements were not before the court, nor did plaintiff make any request of that court for alimony or support for herself. The only provisions of the decree at all relevant relate solely to the support of the child. The entry of a decree of divorce alone is insufficient to vary or modify the contractual obligations of the parties, and on such a record as this it certainly cannot be said as a matter of law that the Nevada decree represents a change in the status of the parties under the contract in suit or operates to relieve defendant of his contractual obligations (Goldman v. Goldman, 282 N. Y. 296; Galusha v. Galusha, 116 N. Y. 635, 138 N. Y. 272; Flood v. Thiesing, supra; Van Nostrand v. Hofer, supra; Holahan v. Holahan, 298 N. Y. 798; see, also, Lynn v. Lynn, 302 N. Y. 193, 204). The law of Nevada does not appear to be otherwise (see Finley v. Finley, 65 Nev. 113, 117).

To affirm here, we would have to assume as a matter of law that plaintiff intended to surrender a valuable contractual right of support given to her exclusively by defendant in 1932, notwithstanding that it does not appear that she ever asked for alimony or other support for herself in the Nevada action. At best, only questions of fact are presented as to plaintiff’s intentions in this respect, and such questions may not be disposed" of on a motion for summary judgment (Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25). This is so particularly in this case, where neither the pleadings nor the minutes of the Nevada action are before us, nor is there other evidence demonstrating, even inconclusively, such intention. The bare decree in nowise reflects it. To say the least, the issues are of such nature and scope as to indicate the propriety of a trial thereof (Bollack v. Société Générale, 293 N. Y. 652).

Plaintiff has also brought up for review on this appeal an intermediate order made by the Appellate Division on the first appeal, insofar as said order denies her motion for partial summary judgment, in relation to the first and second affirmative defenses. We are satisfied that that motion presented questions of fact requiring a trial, and hence the intermediate order appealed from was correctly made.

The judgment of the Appellate Division should be reversed and the judgment and order of Special Term affirmed, with costs in this court and in the Appellate Division.

Lewis, Conway and Desmond, JJ., concur with Froessel, J.; Loughran, Ch. J., Dye and Fuld, JJ., dissent and vote to affirm.

Judgment accordingly.