text:
    William C. Atwater & Company, Inc., Appellant and Respondent, v. Panama Rail Road Company, Respondent and Appellant.

      (Argued November 20, 1930;
    decided February 10, 1931.)

      Wilson W. Thompson and Edward M. Bassett for plaintiff, appellant and respondent.
    The court erred in refusing to dismiss defendant’s counterclaim. (Normandie Shirt Co. v. Eagle, Inc., 238 N. Y. 218.) Plaintiff had no power to compel defendant to take the coal it had refused to order, accept or pay for. Each month’s tonnage, or any part thereof, which defendant wrongfully refused to take, became canceled, in the sense that there was no obligation on the plaintiff to make delivery of such unaccepted tonnage at a later time. But defendant’s liability for such wrongful refusals still remained. (Atwater & Co. v. Panama R. R. Co., 246 N. Y. 519.)

      Richard Reid Rogers for defendant, appellant and respondent.
    The 4,516 tons of coal which the plaintiff failed to deliver during the first four months of the contract were automatically canceled, and not postponed to be made up subsequently by plaintiff. (Pope v. Porter, 102 N. Y. 366; Normandie Shirt Co. v. Eagle, 238 N. Y. 218; Williston on Contracts, § 872; Norrington v. Wright, 115 U. S. 188; New York v. Delli Paoli, 202 N. Y. 18; Maurer v. Tubeless Wire Co., 272 Fed. Rep. 990.) The parties agreed to reduce the quotas for February and March to 2,000 tons each. It was, therefore, error to allow damages for the full quotas of 3,000 tons each for these months. (Normandie Shirt Co. v. Eagle, 238 N. Y. 218; Savage Arms Corp. v. United States, 266 U. S. 217.) Plaintiff cannot recover for coal not taken during the strike period. (Delaware, L. & W. R. R. Co. v. Bowns, 58 N. Y. 573; Panzieri-Hogan Co., Inc., v. Bender, 205 App. Div. 398; Kellogg v. Boutwell Milling & Grain Co., 203 App. Div. 350; Cuyamel Fruit Co. v. Johnson Iron Works, 262 Fed. Rep. 387; The Richland Queen, 254 Fed. Rep. 668; International Paper Co. v. Beacon Oil Co., 290 Fed. Rep. 45; Towle v. Remsen, 70 N. Y. 303; Berliner Gramaphone Co. v. Seaman, 111 Fed. Rep. 679; Mason v. United Press, 94 App. Div. 617; Kohler v. Northern Electrical Mfg. Co., 162 Fed. Rep. 876; Jungmann v. Atterbury, 249 N. Y. 119.)
   Lehman, J.

By written contract dated July 28th, 1920, the plaintiff agreed to sell and the defendant agreed to buy 36,000 tons of coal to be delivered “ in approximately equal monthly proportions ” during the year beginning August 1st, 1920, and expiring July 31st, 1921. At the end of January, 1921, one-half of the coal had been delivered and accepted. Thereafter, at the request of the defendant, shipments of coal were reduced, and, from the end of March until July 26th, entirely withheld. The seller during these months was ready to deliver, each month, the monthly proportion called for by the contract. When the contract expired about 12,500 tons were still undelivered because the defendant had failed and refused to accept all the coal it had agreed to buy. For the consequent damages the plaintiff has recovered judgment.

In August, September and November, 1920, the plaintiff did not deliver the full monthly proportions ” of the coal it had agreed to sell. There was a deficit of 4,516 tons, reduced slightly by the delivery of more than the “ monthly proportion” in October. During these months war conditions and other causes beyond the plaintiff’s control reduced the production of plaintiff’s collieries below their normal maximum capacity. The plaintiff’s obligation to deliver was not absolute. The contract provided expressly that “ deliveries under this contract are subject to war conditions * * * or other causes beyond our control. If during the period of this contract the production of the aforesaid collieries shall for any cause above stated be less than their normal maximum capacity the tonnage to be delivered, under this contract, shall, at the option of the seller, be reduced in proportion and there shall be no liability on the part of the seller for the reduction so made.” Deliveries actually made during these months would have exhausted the seller’s obligation if the seller chose to exercise its option. No obligation to deliver the deficit later, no liability for failure to deliver could then survive. (Normandie Shirt Co. v. Engle, Inc., 238 N. Y. 218.)

Although the plaintiff never notified the defendant that it intended to exercise its option to reduce the tonnage "to be delivered ” under the contract and though the defendant was not informed that the contingency had arisen upon which the tonnage to be delivered might, at the option” of the plaintiff, be reduced, both parties contend upon this appeal that the reduction in deliveries, actually made, operated as an exercise by the seller of the option to reduce the tonnage to be delivered ” and, of its own force, terminated all obligation to deliver or accept more. It is difficult to reconcile that contention with the pleadings in this case; it is impossible to reconcile it with the proven facts.

The defendant, perhaps not knowing that circumstances had arisen under which the plaintiff might, at its option,” reduce its obligation to deliver, during each of the months which had elapsed, the full “ monthly proportions ” of the coal sold, kept pressing the plaintiff to complete deliveries of each monthly installment. The plaintiff, perhaps not understanding that the effect of the exercise of its option to reduce the tonnage to be delivered during certain months would be to terminate for all time any obligation to deliver more than had been delivered during those months, or, perhaps, believing that postponement of full performance of its original obligation would prove more profitable than its partial cancellation, yielded to the defendant’s urging and, during December and January, delivered not only the “ monthly proportions ” for those months, but, in addition, the deficit in the deliveries of the “ monthly proportions ” for the months which had passed. Both parties measured their contractual rights and obligations upon the assumption that these remained unchanged. At the end of January, 1921, these obligations had been fully performed except, of course, that delivery of some monthly installments had been made after the end of the month.

Perhaps the assumption that the plaintiff was under any obligation to deliver more than it had already delivered was mistaken. That we do not now decide. Right or wrong, that assumption governed the intention of the parties and dictated their acts. Delivery was intended to cover the deficit in earlier monthly quotas. It was accepted upon that understanding. When the buyer requested and accepted delivery of the full monthly quotas for the months that had passed, it chose for its own purposes to waive its right to refuse dilatory deliveries. It wanted the coal and it received what it wanted. It may not now assert that because the plaintiff may have been under no obligation to make such delivery, the coal so delivered and accepted should be applied, contrary to the intention of the parties, in satisfaction of obligations to deliver and accept installments not then due. When the seller complied with the buyer’s request to complete delivery of unfilled quotas, the seller chose for its own purposes to waive its right, if any, to refuse such delivery. It may not now assert that it was under no obligation to make such delivery and that, contrary to the intention of the parties, a new and independent contract for the purchase and sale of the coal so delivered should be implied.

The courts in determining the obligations of a contract should, when possible, apply the same measure as the parties have applied in performing their obligations. After the actual delivery and acceptance of the monthly installments, in accordance with the original terms of the contract, the seller may not assert that by acts which were, at best, equivocal, it exercised an option to reduce its original obligation. The contractual rights and obligations remained as they were written. Obligation to deliver the full monthly proportion was fulfilled, but not all the deliveries were made at the stipulated time. The question remains whether the defendant may under its counterclaim recover for delay in such deliveries.

The acceptance of the goods does not, in the absence of express or implied agreement, discharge the seller from ' liability in damages for breach of any promise or warranty in the contract of sale. “ But, if, after acceptance of the goods, the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be hable therefor.” (Personal Property Law; Cons. Laws, ch. 41, § 130.) Here there was more than a mere acceptance of the goods; there was, in addition, an implied agreement as to the effect of the acceptance. The record shows clearly that the plaintiff delivered and the defendant accepted delivery upon the mutual understanding that belated delivery should be accepted as a substitute for delivery at the stipulated time. Certainly the defendant did not intimate while, requesting belated delivery that it intended to hold the plaintiff for damages for breach of its promise to deliver at the stipulated time and it gave no notice after delivery that delivery was belated.

The plaintiff of course knew that it had not delivered each month the full monthly ” proportion of the coal sold. It has been said that, even in such circumstances, the plain language of the statute bars recovery of damages for breach of the promise to deliver at the stipulated time, unless after acceptance notice of the breach is given. (Williston on Sales [2d ed.], vol. 2, § 484-a; Trimount Lumber Co. v. Murdough, 229 Mass. 254; American Mfg. Co. v. United States Shipping Board Emergency Fleet Corp., 7 Fed. Rep. [2d] 565 [C. C. A. 2d Circuit]; Mason v. Valentine Souvenir Co., 180 App. Div. 823; Wildman Mfg. Co. v. Davenport Hosiery Mills, 147 Tenn. 551.) We do not now decide whether, in all circumstances, there must be strict compliance with the statutory requirement of notice. From acceptance without complaint, from payment for the goods in full without objection, the inference of fact may, at times, arise that there was an implied agreement that the belated delivery should be accepted by the buyer as full satisfaction of the seller’s obligation. Failure to give notice of claim of breach is, even without the statute, cogent proof of such an understanding and agreement.

Here the circumstances dictate the conclusion that delivery was made and accepted upon that understanding. Failure to deliver full monthly proportions had been due to causes which gave the seller, at its option, the right to reduce the tonnage to be delivered by it. The parties brushed aside all possible question of whether previous deliveries, actually made, constituted full performance of the obligation to deliver as, perhaps, reduced by the seller through exercise of its option. The buyer, both by what it said and by what it left unsaid, impliedly offered to receive belated delivery as satisfaction of the seller’s obligation. The seller made delivery as satisfaction of that obligation. Perhaps it might otherwise have refused. The defendant, having asked and accepted delivery of the deficit in past due installments upon such an implied agreement, may not thereafter recover damages for breach of a promise to deliver earlier. The defendant’s counterclaim should, therefore, have been dismissed. Until after the end of January there was no breach of any promise by either party for which • damages might be awarded.

Before that time there was a scarcity of coal which was reflected in the market price. The buyer continually pressed the seller to deliver the full monthly quotas and the seller replied with excuses for the delay. Then the situation changed. The market apparently was glutted with coal ready for delivery. The buyer at times had more coal on hand than it needed. It requested the seller to reduce or withhold deliveries for a time. The seller acceded to the request, but, later, pressed the defendant to accept deliveries. We agree with the courts below that from the correspondence no contract should be spelled out to reduce the tonnage of coal which the defendant had obligated itself to accept. On the contrary, it clearly appears that postponement of performance of the contractual obligation was not intended to terminate or reduce that obligation.

In reply to a letter from the plaintiff requesting the defendant to give shipping instructions for, and to accept delivery of, the undelivered coal, the defendant wrote on May 11th: “ The present marine strike has resulted in tying up all of our colliers. As soon as the strike is terminated and we can see our way clear to resuming shipments of coal to the Isthmus, we will notify you to forward shipments to Tidewater for our account.” The next day the plaintiff replied: “ We have yours of the 11th inst. and are sorry to note your colliers are tied up by reason of a marine strike. We presume, however, this fact necessarily would not interfere with your shipments to the Isthmus inasmuch as other vessel tonnage is available for charter.” To this letter there was apparently no reply.

The contract between the parties contains a provision that in case of strikes or accidents unavoidably causing the stoppage or partial stoppage of the works or business of the purchaser, the delivery herein contracted may, upon request of the purchaser, be suspended or partially suspended during such stoppage, and the tonnage of deliveries so suspended shall be cancelled.” The defendant maintains that its letter of May 11th constitutes a request for suspension of deliveries during the marine strike, and in accordance with the provisions of the contract, canceled its obligation to accept the suspended deliveries thereafter. The justice at Special Term sustained this contention and found that the defendant was thereby released from any obligation to accept 4,500 tons of undelivered coal.

The marine strike did in fact tie up the colliers which the defendant used in the business of transporting coal to the Isthmus of Panama. It did not cause any stoppage in the works or business of the defendant carried on there. The Appellate Division held that the strike on vessels, used by the defendant merely as an auxiliary to its business in Panama, did not cause a “ stoppage or partial stoppage in the works or business of the purchaser ” within the meaning of the contract and gave no right to the purchaser to “ request ” a suspension of deliveries of coal. The language of the contract is in this respect not clear, but even if its language should receive a broad construction, we find no evidence here of any intention on the part of the defendant to request ” that, because of the marine strike, its obligation to accept coal should be partially canceled.

The defendant, it is true, interposed the marine strike as a reason why it did not at that time give shipping instructions, but it is evident from the correspondence, that just as earlier, when the seller might, at its option, have asserted a right to reduce its obligation to make deliveries, so here, when perhaps the purchaser might, at its option, have reduced its obligation to accept deliveries, the parties chose to ask temporary indulgence rather than partial release. The choice may have been due in each case to a failure to realize the extent of the contractual rights and obligations or it may have been due to a belief that postponement of performance would prove more profitable than cancellation of obligation. In any event, they did keep their obligations alive. If, thereafter, the price of coal had advanced and the defendant had chosen to demand the postponed deliveries, the plaintiff could not have refused on the ground that these deliveries were canceled at the defendant’s request. After the price of coal dropped, the defendant cannot escape liability for failure to accept deliveries which it chose not to cancel.

The judgment of the Appellate Division should be modified by dismissing the counterclaim and increasing the judgment in favor of the plaintiff accordingly and as modified affirmed, with costs to the plaintiff.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Matter of Albert Ulmann et al., Copartners under the Firm Name of Sulzbacher, Granger & Company, Appellants, v. Mike H. Thomas, Defendant. New York Produce Exchange, Respondent.
    (Argued December 4, 1930;
    decided February 10, 1931.)

      Edward Gluck and William F. Unger for appellants.
    A membership in the New York Produce Exchange is properly subject to realization by creditors in supplementary proceedings. (Habenicht v. Lissah, 78 Cal. 351; Ritterband v. Baggett, 10 J. & S. 557; Powell v. Waldron, 89 N. Y. 328; Grocers' Bank v. Murphy, 60 How. Pr. 426; Londheim v. White, 67 How. Pr. 467; People v. Feitner, 86 App. Div. 28; Eliot v. Merchants’ Exchange, 14 Mo. App. 234; Page v. Edmunds, 187 U. S. 576; Wrede v. Gilley, 132 App. Div. 293; Platt v. Jones, 96 N. Y. 24; Leggett v. Waller, 39 Misc. Rep. 409.) A receiver should be appointed where the judgment debtor owns a membership in an exchange. (Platt v. Jones, 96 N. Y. 24; Powell v. Waldron, 89 N. Y. 328; Ritterband v. Baggett, 42 N. Y. Super. Ct. 556; Grocers’ Bank v. Murphy, 60 How. Pr. 426; Wrede v. Gilley, 132 App. Div. 293; Dease v. Reese, 39 Misc. Rep. 657; Leggett v. Waller, 39 Misc. Rep. 408; Matter of Stafford, 105 App. Div. 46; Matter of 1101 Park Avenue Corp. v. Cornell, 103 Misc. Rep. 394.) The courts of New York have jurisdiction to appoint a receiver in the premises. (Plimpton v. Bigelow, 93 N. Y. 592.)

      Frederick S. Fisher and William D. Gaillard for respondent.
    The New York Produce Exchange has no property of or belonging to the judgment debtor and is not indebted to the judgment debtor. (Belton v. Hatch, 109 N. Y. 593; Hyde v. Woods, 94 U. S. 523; Garrigues v. New York Produce Exchange, 213 App. Div. 625; American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210; Powell v. Waldron, 89 N. Y. 328; Parish v. New York Produce Exchange, 169 N. Y. 34; Matter of Haebler v. New York Produce Exchange, 149 N. Y. 414; Weaver v. Fisher, 110 Ill. 146; Allien v. Wotherspoon, 18 Jones & Spencer, 417; DeLacy v. Gilchrist, 151 N. Y. Supp. 508; Eliot v. Merchants Exchange, 14 Mo. App. 234; McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Com

      mercial Bank v. Kortright, 22 Wend. 348; Smith v. American Coal Co., 7 Lans. 317; Cushman v. Thayer, 76 N. Y. 365; Comeau v. Guild Farm Oil Co., 3 Daly, 218.) The Exchange must require the surrender of the certificate issued to the judgment debtor and, therefore, the judgment creditors must reach the certificate. (Nowy Swiat Publishing Co. v. Misiewicz, 246 N. Y. 58; New York C. R. R. Co. v. Schuyler, 34 N. Y. 30; Smith v. American Coal Co., 7 Lans. 317; Cushman v. Thayer, 76 N. Y. 365; Comeau v. Guild Farm Oil Co., 3 Daly, 218; Rice v. Rockefeller, 134 N. Y. 174.) The judgment creditors are not entitled to the appointment of a receiver. (Matter of Ehrich v. Root, 134 App. Div. 432; Matter of Stafford, 105 App. Div. 46; Kelsey v. Webb, 94 App. Div. 571; Matter of 1101 Park Avenue Corp. v. Cornell, 133 Misc. Rep. 397; Stevens Co. v. Maus, 155 App. Div. 249; Press Pub. Co. v. McGill, 136 N. Y. Supp. 177; Ward v. Petrie, 157 N. Y. 301; Denning v. Schieffelin, 7 N. Y. Supp. 98; Matter of Meyer v. Consolidated Ice Co., 196 N. Y. 471.)
   Lehman, J.

The judgment debtor is a resident of Texas. After execution was issued upon the judgment, the judgment creditor obtained an order, in proceedings supplementary to execution, for the examination of the New York Produce Exchange. The examination disclosed that the judgment debtor is a member of the Produce Exchange. Then the judgment creditor moved for the appointment of a receiver. That motion was denied. No notice of the examination of the third party, and no notice of the application for a receiver, was served upon the judgment debtor within this State, and he has not appeared in the proceeding. The purpose of the application for the appointment of a receiver is to obtain such control of the membership of the judgment debtor in the Produce Exchange that it may be sold and the proceeds applied upon the judgment. The application is opposed by the Produce Exchange upon the ground that without infraction of its by-laws it cannot transfer to a receiver or to a purchaser, upon a sale made by the receiver, any property rights in the Exchange membership of the judgment debtor. Otherwise it has no interest in the proceedings. In the absence of objection to the sufficiency of the moving papers, we consider upon this appeal only the question whether the membership of the judgment debtor in the New York Produce Exchange is property of such nature as to justify the appointment of a receiver in proceedings supplementary to execution.

The New York Produce Exchange is a membership corporation. Its charter and by-laws fix the privileges and rights of its members. Under the by-laws, these privileges and rights are not fieely transferable. Indeed, they can pass in their entirety only to persons elected or approved by the Exchange. The number of members is limited, and only those are eligible who have acquired membership rights by previous transfer made subject to the approval of the Exchange. The privilege of doing business as a member of a commercial exchange may have very substantial value. Since that privilege can be acquired only by a transfer from a member of his own membership, seats or membership in an exchange are subjects of sale and have a market value. The courts have generally held that, to the extent that an exchange seat or membership includes rights which are transferable and the subject of purchase and sale, it constitutes property, and its proceeds should be applied in payment of the debts of an insolvent debtor. Long ago this court said of a seat on the New York Cotton Exchange: “Although of a character somewhat peculiar, its use restricted, its range of purchasers narrow, and its ownership clogged with conditions, it was nevertheless a valuable right, capable of transfer and correctly decided to be property. * -* * We should make of it an anomaly, difficult to deal with and to understand, if we failed to treat it as property. The authorities which determine it to be such, seem to us better reasoned and more wisely considered than those which deny to it that character, although the subject of ownership, of use, and of sale.” (Powell v. Waldron, 89 N. Y. 328.)

A seat on the Philadelphia Stock Exchange passes to a “ trustee in bankruptcy ” (Page v. Edmunds, 187 U. S. 596), and so also does a seat on the Chicago Board of Trade. (Chicago Board of Trade v. Johnson, 264 U. S. 1.) Similarly it has been held that seats or membership in other commercial exchanges can be reached by attachment, proceedings supplementary to execution, or creditors’ bills. (Wagner v. Farmers Co-operative Exchange Co., 147 Minn. 376; Matter of Stringer, 253 Fed. Rep. 352; Habenicht v. Lissak, 78 Cal. 351; Eliot v. Merchants Exchange, 14 Mo. App. 234.)

In some of these cases the exchange was an unincorporated association; in others a membership corporation. Such differences are without significance. In all cases the rights of members are dependent upon charter or by-laws. If such rights can be transferred to another and have a pecuniary value, then they constitute a form of property which is subject to claims of creditors. Even then, however, they can be reached by creditors only through appropriate proceedings, by which a transfer of such rights can be compelled or effectuated.

Here the by-laws of the Exchange provide that each member shall be entitled to receive a certificate of membership.” That certificate is transferable only “ to a person elected to membership,” but ,a candidate for election may be approved and elected only “ on presentation of a certificate of membership duly assigned to him.” Where a member has failed to pay assessments, the Exchange can sell at public auction the certificate of membership and all interest therein, and by such sale can compel a transfer of title without consent or co-operation of the member. Then it may issue to the purchaser a new certificate. In all other cases an assignment of the certificate is a condition precedent to the acquisition of full rights of membership in the Exchange, and so far as such rights of membership are transferable they pass by assignment of the certificate and in no other way.

It has been pointed out that certificates of stock are only evidence of the ownership of the shares, and the interest represented by the shares is held by the Company for the benefit of the true owner.” (Jellenik v. Huron Copper Mining Co., 177 U. S. 1.) The interest, held by the company for the benefit of the owner, constitutes property apart from the certificates which represent that interest. (Holmes v. Camp, 219 N. Y. 359.) We do not consider how far analogy may be pushed between an interest in a stock corporation represented by a certificate of stock, and a membership in a membership corporation represented by a certificate of membership. (See American Exchange Nat. Bank v. Woodlawn Cemetery, 194 N. Y. 116.) We assume that the judgment debtor’s membership interest in the Exchange is, in a sense, property apart from his ownership of the certificate. We may assume that this property is not beyond the reach of creditors, through creditor’s bills or appropriate proceedings supplementary to execution; or attachment; and that it passes to a trustee in bankruptcy; but since under the by-laws of the Exchange that property can be transferred only by assignment of the certificate, the question still remains whether, without control of the certificate or of the person of the judgment debtor, that property can be applied to the payment of the indebtedness.

The certificate itself cannot be reached in this proceeding, for it has not been found here. The judgment debtor cannot be compelled to assign the certificate, for he is without the jurisdiction of our courts. The Produce Exchange has no right under its by-laws to issue a new certificate to the receiver, so long as the old certificate is outstanding, nor can it elect to membership an assignee of the receiver, for the receiver cannot assign a certificate which he does not control. The property, if any, within the State held in trust by the Produce Exchange for the • judgment debtor is a mere shadow, which cannot be effectively grasped by creditors. The substance is in fact represented by the certificate, if not indeed embodied in that certificate.

In most, if not all, of the cases cited the situation is entirely different. There the court either had control of the certificate or could compel its assignment. So in Chicago Board of Trade v. Johnson (supra) the court stated: “ The trustee does not become a member, but he does come into control of the bankrupt’s right to dispose of the membership; and, with the aid of the bankruptcy court, can require the bankrupt to do everything on his part necessary under the rules of the Board to exercise this right.” Here on the contrary, the receiver could not be put in control of the debtor’s right to dispose of his membership. Indeed, it does not even appear that the debtor may not already have exercised that right, and in the absence of jurisdiction of the person of the debtor acquired in this proceeding, the court cannot compel the debtor to “do everything on his part necessary under the rules of the Board (exchange) to exercise this right.”

Proceedings to compel the application of a debtor’s property to payment of his debts are futile where no power of compulsion exists. Membership in an exchange is property which may be reached by appropriate proceedings supplementary to execution or creditors’ bills, but only where the court obtains jurisdiction by which it can compel an involuntary transfer. (See Freeman on Executions [3d ed.], § 110.) In O’Dell v. Boyden (150 Fed. Rep. 731) Judge Burton stated: “ Only by decree in personam compelling the bankrupt member can such a transfer of membership be effectuated as will put the buyer in the place of Henrotin as a member.” (Cited with approval in Chicago Board of Trade v. Johnson, supra) No such decree in personam can be made in these proceedings against a judgment debtor not within the jurisdiction.

We do not say that in such circumstances the court could not appoint a receiver, leaving open the question whether the receiver could thereafter successfully bring proceedings to compel a transfer of the certificate. We do say that where, without personal notice to a nonresident debtor, a receiver is sought for the purpose of taking possession or control of particular property, and it does not appear that the receiver can acquire any effective control of the property, it is at least within the discretion of the court to refuse to make a futile appointment.

The order should, therefore, be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Kellogg, O'Brien and Hubbs, JJ., concur.

Order affirmed.


author: Hubbs, J.

text:
    J. Aron & Company, Inc., Respondent, v. Panama Railroad Company, Appellant.

      (Argued January 13, 1931;
    decided February 10, 1931.)

      Richard Reid Rogers for appellant.
    Suit was filed too late. (South & Central American Com. Co. v. Panama R. R. Co., 237 N. Y. 287; Eastern Outfitting Corp. v. Pac. M. S. S. Co., 26 Fed. Rep. [2d] 270; Armour v. Gjeruldsen, 15 Fed. Rep. [2d] 553; The Susquehanna, 296 Fed. Rep. 461; The Sagadahoc, 291 Fed. Rep. 920; The Turret Crown, 284 Fed. Rep. 439; Vulcanite Roofing Co. v. Commonwealth S. S. Co., 262 U. S. 742; Ikuno v. Morris, 22 Fed. Rep. [2d] 140; Schnell v. United States, 30 Fed. Rep. [2d] 676; Baltimore S. S. Co. v. Koppel, 299 Fed. Rep. 158; Knickerbocker Ice Co. v. Stewart, 253 U. S. 149; Sapinkopf v. Cunard S. S. Co., 254 N. Y. 111; Grace v. Panama R. R. Co., 12 Fed. Rep. [2d] 338; The St. Hubert, 102 Fed. Rep. 362; 107 Fed. Rep. 727; Cudahy Packing Co. v. Munson S. S. Line, 22 Fed. Rep. [2d] 898; The Majestic, 30 Fed. Rep. [2d] 822; The President Polk, 43 Fed. Rep. [2d] 695.)

      Gregory S. Rivkins and Forrest E. Single for respondent.
    The provision of the bill of lading limiting the time within which suit máy be brought to within six months from date of arrival of the shipment is void as against public policy. (South & Central American Comm. Co. v. Panama R. R. Co., 237 N. Y. 287; Sapinkopf v. Cunard S. S. Co., 254 N. Y. 111; Corn Products Refining Co. v. Transmarine Corp., 220 App. Div. 731; Green Star S. S. Co. v. Nanyang Bros. Tobacco Co., 3 Fed. Rep. [2d] 369; Armour & Co. v. Gjeruldsen, 15 Fed. Rep. [2d] 553; Olivier Produce Corp. v. United, States, 20 Fed. Rep. [2d] 214.) There was an absolute warranty of seaworthiness on the part of the carrier to supply a seaworthy vessel, and its failure in that regard deprives it of any exemptions of the bill of lading, including the suit and notice clauses, and renders the carrier hable as an insurer. (The Carib Prince, 170 U. S. 655; The Edith, 10 Fed. Rep. [2d] 684; International Navigation Co. v. Farr, 181 U. S. 218; The Silvia, 171 U. S. 462; The Southwark, 191 U. S. 1; The Thomas P. Beal, 11 Fed. Rep. [2d] 49; Kaufer v. Luckenbach, 294 Fed. Rep. 978; Cosmopolitan Shipping Co. v. Hatton & Cookson, 34 Lloyd’s List Law Rep. 231; The St. Johns, 280 Fed. Rep. 553; The Balto, 282 Fed. Rep. 235; The Sarnia, 278 Fed. Rep. 459.)
   Hubbs, J.

The appellant is a common carrier by water. It contracted to carry on its boat Lake Flattery bags of cocoa beans from Guayaquil, Ecuador, to New York. Upon arrival at the port of destination an inspection disclosed that the beans were damaged. The respondent, the consignee, immediately served notice of that fact upon the carrier and made a claim for damages.

Eleven months later this action was commenced by the consignee to recover the damage suffered. The record does not disclose any reason or excuse for the delay in commencing the action. The bill of lading signed by the shipper under which the goods were carried provided that No suit for loss or damage shall be maintainable against the carrier unless instituted within six months after the shipment concerned arrives or should arrive at destination.” The learned trial justice decided as a matter of law that the clause of the bill of lading which purported to limit the time within which an action could be commenced to recover damage was void as against public policy.

As a general rule a common carrier by water may legally enter into a contract with a shipper limiting the time within which an action may be commenced to recovei damages growing out of the negligence of the carrier to a period shorter than provided by the applicable Statute of Limitations. To the general rule there is a definitive limitation to the effect that a limitation of time within which action may be commenced must be reasonable, just and fair.

The shipper and common carrier do not stand upon equal terms. The shipper, to some extent at least, is at the mercy of the carrier, which may impose such terms as it desires unless the shipper is protected by law. Public policy, therefore, requires that shippers be protected from the imposition of an unreasonable, unfair or unjust limitation of time within which to commence an action to recover damages for the loss of or injury to goods carried. Courts have ever been zealous to protect shippers from the strict enforcement of harsh and unjust provisions of shipping contracts imposed by common carriers. The public in general has an interest in such contracts and the rule of freedom of contract which prevails as to private contracts is not applicable. (Southern Express Co. v. Caldwell, 21 Wall. [U. S.] 264.)

It was in conformity with that principle that Congress enacted the Harter Act (U. S. Comp. Stat. § 8029; Mason’s U. S. Code, vol. 3, tit. 46, § 190) forbidding a common carrier by water from issuing a bill of lading which, by its terms, would exempt the carrier from liability for its negligence or arbitrarily limit its liability without regard to the rate charged. The act does not, however, contain any provision relating to the terms of bills of lading which provide the time within which an action must be brought. That was left to be governed by the action of the contracting parties, subject, however, to the principle that such limitation of time must be just and fair.

Prior to the enactment of .the Interstate Commerce Act (U. S. Comp. Stat. § 8563; Cummins Amendment, 38 Statutes at Large, 1196), the courts frequently passed upon the question of what constituted a valid provision of a bill of lading which attempted to limit the time within which an action must be commenced against a common carrier to recover damages growing out of a shipment. (Missouri, K. & T. Ry. Co. v. Harriman, 227 U. S. 657; North British & Mercantile Ins. Co. v. Central Vermont R. R. Co., 9 App. Div. 4; affd., 158 N. Y. 726.) Many cases are collated in 10 Corpus Juris, at pages 343 and 344. The cases quite uniformly held that a limitation in a bill of lading of time for the commencement of action was valid provided the limitation was fair and reasonable. Since the decisions in those cases, Congress enacted the Interstate Commerce Act and the “ Suits in Admiralty Act” of March 9th, 1920 (Ch. 95, § 5; 41 Statutes at Large, 525; Mason’s U. S. Code, vol. 3, tit. 46, § 745), neither of which applies to the shipment in question. The Interstate Commerce Act does not affect contracts for shipments by water only and the Suits in Admiralty Act ” applies only to shipping companies the entire capital stock of which is owned by the United States. Each of those acts provides in substance that a shipper must be allowed two years within which to commence an action, thereby disclosing “ Congress’ conception of reasonable opportunity ” within which an action must be commenced in cases governed by those acts.

After the enactment of those statutes this court was required to pass upon the validity of a clause in a bill of lading which provided that notice of claim must be given within sixty days after knowledge of loss and action commenced within sixty days thereafter. The shipment involved in that case was by water and not covered by either act. We found in the statutes referred to an expression of the will of Congress as to what constitutes a reasonable opportunity to commence an action. We did not hold that the standard established by Congress in those acts applied to the bill of lading under consideration but we found therein an indication of Congress’ conception of what constitutes a just and fair limitation of time within which to commence an action and an expression of public policy in accord with modern conditions. We decided under the facts in that case that the limitation of sixty days imposed by the carrier was unfair, unreasonable and such a “ ‘ flagrant ’ departure from the statutory standard of reasonability ” as to be contrary to public policy. (South & Central American Commercial Co., Inc., v. Panama Railroad Co., 237 N. Y. 287.) We adhered to the principle there announced in deciding the case of Straus & Co. v. Canadian Pacific Ry. Co. (254 N. Y. 407). The case of Sapinkopf v. Cunard Steamship Co. (254 N. Y. 111) was an action by a shipper against a common carrier by water. The bill of lading involved provided that an action to recover damages must be brought within a year. We held that The provision does not of itself strike the mind as an unreasonable limitation, nor does it mark so wide a departure from statutory standards for analogous cases, as to seem ‘ flagrant ’ or shocking.” The limitation was held to be fair and reasonable.

In the following cases it was decided, under the facts therein: That a provision of a bill of lading which limited the time to bring an action to thirty days was void (The President Polk, 43 Fed. Rep. [2d] 695); that a limitation of three months was void (Green Star S. S. Co. v. Nanyang Bros. Tobacco Co., Ltd., 3 Fed. Rep. [2d] 369).

On the other hand, it has been decided that a limitation in a bill of lading of sixty days within which to commence an action was valid (Eastern Outfitting Co. v. Pacific Mail S. S. Co., 26 Fed. Rep. [2d] 270; The Sagadahoc, 291 Fed. Rep. 920); that a limitation of three months was valid (The Susquehanna, 296 Fed. Rep. 461; The Turret Crown, 284 Fed. Rep. 439; Schnell v. United States, 30 Fed. Rep. [2d] 676). Also that a limitation of six months was valid. (Armour & Co. v. Aktieselskab Gjeruldsen, 15 Fed. Rep. [2d] 553; Oliver Produce Corp. v. United States, 20 Fed. Rep. [2d] 214.)

The United States Supreme Court has not passed upon the question. No court so far as we have been able to find has ever held that a limitation of six months within which to commence an action was unfair, unreasonable or against public policy. We have reached the conclusion that under the facts of this case the limitation of six months contained in the bill of lading within which to bring an action was not an unreasonable limitation. The time allowed was substantial. It cannot be considered harsh, unfair or unjust. The parties had a legal right to enter into a contract imposing a limitation of time, and unless courts can see that the contract period is contrary to principles of fairness and justice, the contract as entered into should be enforced.

We do not attempt to fix a standard or establish, any definite time which shall be deemed reasonable under all conditions. We hold that under the facts and circumstances of this case six months was a reasonable limitation.

The distinction between a limitation of time within which to serve a preliminary notice of claim and the limitation of time within which to commence an action should be kept in mind.

We are not unmindful of the fact that thirty-two nations have adopted a statute which provides that an action to recover damages under a shipping contract must be commenced within one year. A Statute of Limitations does not, however, prevent the parties to a shipping contract from agreeing upon a shorter time within which action must be commenced, and the statutory limitation throws very little light upon the question of what constitutes a just and reasonable time under such an agreement.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Kellogg and O’Brien, JJ., concur; Lehman, J., not sitting. Judgments reversed, etc.


author: Per Curiam.

text:
    Ernest D. Barrett et al., Respondents, v. Samuel K. Jacobs, Appellant.
    (Argued February 11, 1931;
    decided February 19, 1931.)
    I. Maurice Wormser, Israel Q. Ornstein and Charles Fredericks for appellant.
    A motion for summary judgment may not be granted where defendant’s affidavits disclose a defense. (Curry v. Mackenzie, 239 N. Y. 267;
      Gravenhorst v. Zimmerman, 236 N. Y. 22; Niles v. Seeler, 240 N. Y. 650; Tide Water Oil Sales Corp. v. Pierce, 213 App. Div. 796; Karpas v. Bandler, 218 App. Div. 418; Hanna v. Mitchell, 202 App. Div. 504; 235 N. Y. 534; Dwan v. Massarene, 199 App. Div. 872; General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; Codd v. Delap, 92 Law Times Rep. [N. S.] 510; Jones v. Stone, 70 Law Times Rep. [N. S.] 174.) The answering affidavits submitted by defendant clearly establish a substantial defense on the merits. (Seymour v. St. Luke’s Hospital, 28 App. Div. 119; 159 N. Y. 524.) The affidavits submitted by plaintiffs indicate that they would be unsuccessful upon the trial of the action. (Windsor Investing Corp. v. McLaughlin Sons, 130 Misc. Rep. 730; 224 App. Div. 715; Seymour v. St. Luke’s Hospital, 28 App. Div. 119; Larson v. Burroughs, 131 App. Div. 877; Brooklyn Clothing Corp. v. Fidelity-Phoenix Fire Ins. Co., 205 App. Div. 743.)

      Joseph A. Fagnani for respondents.
    A summary judgment was properly granted. (General Co. v. Interborouqh Co., 235 N. Y. 133.)
   Per Curiam.

On an application for summary judgment under rule 113, Rules of Civil Practice, the only question is whether an unsubstantial formal defense has been interposed for purposes of delay. Judgment should not be granted unless it is clear that plaintiff has made out a case on the undisputed material facts presented on the record by affidavit or other proof. (Curry v. Mackenzie, 239 N. Y. 267, 269.)

In this case it is not clear that the action was not prematurely brought; it is not clear that the respondents have earned their commissions under their contract of employment. It is significant, although not conclusive, that the trial justice and two justices of the Appellate Division were of the opinion that there were questions of fact to be tried. Respondents have an arguable defense on the record before us and should not be deprived of a trial.

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

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


text:
    Anna R. Becker, Respondent, v. Peter A. Frasse & Co., Inc., Appellant.
    (Argued October 17, 1930;
    decided November 18, 1930.)

      John J. Hatpin and Joseph W. Kirkpatrick for appellant.

      Robert H. Wilson, Jr., for respondent.
   Judgment of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division on the authority of Becker v. Frasse & Co. (255 N. Y. 10); no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Horace Price, Respondent, v. Thomas D. Ryan, Appellant, and Guy B. Dickison, Respondent.
    (Argued October 15, 1930;
    decided November 18, 1930.)

      Henry R. Follett and George R. Fearon for appellant.

      Charles E. Spencer for plaintiff-respondent.

      Joseph H. Meatyard for defendant-respondent.
   Judgment affirmed, with costs, on the authority of Price v. Ryan (255 N. Y. 16); no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Summers Lumber and Supply Corporation, Respondent, v. J. S. Barbara Construction Corporation et al., Defendants. Provident Mortgage Corporation, Appellant, and H. Clay Waldman, Inc., et al., Respondents.
    (Argued October 21, 1930;
    decided November 18, 1930.)

      C. Elmer Spedick for appellant.

      Guy 0. Walser for plaintiff-respondent.

      Thomas J. Cuff for defendant-respondent.
   Per Curiam.

The judgment should be modified by providing for payment to defendant Provident Mortgage Corporation, on account of the amount paid by it in satisfaction of prior mortgages on the premises, the sum of $15,926.94, with interest from February 21, 1929, instead of the sum of $10,562.10, and as so modified affirmed, without costs.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


text:
    William Bachrach, Appellant, v. Rhode Island Insurance Company et al., Respondents.
    (Argued October 13, 1930;
    decided November 18, 1930.)

      I. Maurice Wormser and Isaac Cohen for appellant.

      John H. Schmid and Arthur V. McDermott for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The National City Bank of New York et al., Respondents, v. Charles D. Waggoner et al., Defendants, and Central Hanover Bank and Trust Company, Appellant.
    (Argued October 13, 1930;
    decided November 18, 1930.)

      Martin Conboy, David Asch, Theodore J. Miller and Charles W. Tooke for appellant.

      Carl A. Mead for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Taking no part: Hubbs, J.


text:
    James R. Pierce, Respondent, v. Edward K. Fenno, Appellant, and Fred M. Webster, Respondent.
    (Argued October 13, 1930;
    decided November 18, 1930.)

      Benjamin E. Shove and Carl E. Dorr for appellant.

      Albert H. Clark and John C. Boland for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    William A. Hagan, Appellant, v. Richard H. Meehan et al., Respondents.
    (Submitted October 14, 1930;
    decided November 18, 1930.)

      Thomas J. Skelly for appellant.

      Maurice V. Seligson and Gustave B. Garfield for Richard H. Meehan, respondent.

      Ira Wollison for Christopher C. Macauley, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York, Respondent, v. Rose Cohen, Defendant, and Equitable Casualty and Surety Company, Appellant. The People of the State of New York, Respondent, v. Anna Rosen, Defendant, and Equitable Casualty and Surety Company, Appellant.
    (Submitted October 14, 1930;
    decided November 18, 1930.)

      Benjamin Frindel for appellant.

      Thomas C. T. Crain, District Attorney (Michael J. Driscoll of counsel), for respondent.
   Order in each proceeding affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York, Appellant, v. John R. Thompson Company, Respondent.
    (Argued October 14, 1930;
    decided November 18, 1930.)

      Thomas G. T. Crain, District Attorney (Robert Darn of counsel), for appellant.

      Edgar H. A. Chapman for respondent.
   Judgment affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Board of Supervisors of Ontario County, Appellant, against The Water Power and Control Commission, Department of Conservation of the State of New York, et al., Respondents.
    (Argued October 14, 1930;
    decided November 18, 1930.)

      Earle S. Warner for appellant.

      Hamilton Ward, Attorney-General (Frederick D. Colson of counsel), for Water Power and Control Commission, respondent.

      Clarence M. Platt, Corporation Counsel (George B. Draper of counsel), for City of Rochester, respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of Alfred H. Newburger et al., Copartners under the Firm Name of Newburger, Henderson & Loeb, Appellants, against Morris Gold, Respondent.
    (Argued October 13, 1930;
    decided November 18, 1930.)

      Osmond K. Fraenkel for appellant.

      Charles Gold for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Isaac M. Mittenthal, Appellant, v. Greenbaum Sons Securities Corporation, Respondent.
    (Argued October 14, 1930;
    decided November 18, 1930.)

      Isidor Bregoff for appellant.

      Thomas Kiernan for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Emanuel G. Penn, Appellant, v. Umberto Valiante, Respondent.
    (Argued October 14, 1930;
    decided November 18, 1930.)

      Henry E. Stohldreier and Gordon Miller for appellant.

      Herbert L. Wasserman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cabdozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Henry T. Martin, Respondent, v. New York and Stamford Railway Company, Appellant.
    (Argued October 15, 1930;
    decided November 18, 1930.)

      William H. Hall and Edward Ward McMahon for appellant.

      Charles D. Lewis and Thomas J. O’ Neill for respondent.
   Judgment affimed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Mollie Schwartz, Respondent, v. New York, Westchester and Boston Railway Company, Appellant.
    (Argued October 15, 1930;
    decided November 18, 1930.)

      'William H. Hall and Edward Ward McMahon for appellant.

      Fred P. Harrington, Louis Winkler and Morris M. Winkler for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Adele Amandolese, Appellant, v. The City of New York, Respondent.
    (Argued October 15, 1930;
    decided November 18, 1930.)

      Samuel A. Pleasants and Oscar B. Wiren for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Vine H. Smith, George E. Draper and J. Joseph Lilly of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Artloom Realty Co., Inc., Appellant, v. William F. LaMorte et al., Defendants, and Morris Lefkort et al., Respondents.
    (Argued October 15, 1930;
    decided November 18, 1930.)

      Mortimor S. Gordon and Jacob Gordon for appellant.

      Herbert C. Smyth, Boderic Wellman and Maurice Lefkort for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Frank Bianchi, Respondent, v. John F. Klein, Appellant.
    (Submitted October 16, 1930;
    decided November 18, 1930.)

      James I. Cuff, Henry B. Bright, and Grattan B. Shults for appellant.

      Samuel Sumner Goldberg and Emanuel Saget for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Abraham Reinlieb, Respondent, v. Edward J. Rose et al., Appellants.
    (Argued October 16, 1930;
    decided November 18, 1930.)

      Abraham I. Madison and Wilmot L. Morehouse for appellants.

      Abraham H. Simon and Harry Simon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Eugene R. Mulligan et al., Respondents, v. Angela Fioravera, Appellant.
    (Argued October 16, 1930;
    decided November 18, 1930.)

      Homer I. Harris, Harry M. Peyser and David Berg for appellant.

      Eugene L. Brisach, Howard C. Kelly and John H. Finn for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Hannah Smith, Respondent, v. International Railway Company, Appellant.
    (Argued October 17, 1930;
    decided November 18, 1930.)

      Noel S. Symons and Raymond C. Vaughan for appellant.

      John J. Brown and W. J. Wetherbee for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Edwin W. Rice, Jr., et al., Respondents, v. George W. Van Vranken, Appellant.
    (Argued October 17, 1930;
    decided November 18, 1930.)

      George B. Smith for appellant.

      Chatfield T. Bates for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Arthur Fairl, Respondent, v. International Railway Company, Appellant.
    (Submitted October 17, 1930;
    decided November 18, 1930.)

      Selby G. Smith for appellant.

      William J. Flynn for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cakdozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Reginald S. H. Venable et al., Respondents, v. Fidelity and Deposit Company of Maryland, Appellant.
    (Submitted October 17, 1930;
    decided November 18, 1930.)

      Fred Boehm and Jacob Linett for appellant.

      Caruthers Ewing for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Caedozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas G. Alvord, Jr., Appellant.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Clarence L. Crabb for appellant.

      Melvin F. Kinkley, District Attorney, for respondent.
   Judgment affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York, Respondent, v. Ralph Tuscillo, Appellant.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Alfred V. Norton for appellant.

      Albert C. Fach, District Attorney (.Lester L. Callan of counsel), for respondent.
   Judgment affirmed; no opinion. •

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Bowlee Realty Corporation, Appellant, v. Jason Meth, Respondent.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Benjamin Cohen and Charles Schneikraut for appellant.

      Milton Pinkus and Thomas J. Cuff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Annie Weisberg, Respondent, v. Michael A. Elias, Appellant.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Samuel Sturtz for appellant.

      Stanley S. Groggins 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, for the reason stated in the dissenting memorandum of O’Malley, J., in the court below; no opinion.

Concur: Cabdozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Thomas Roulston, Inc., Appellant, v. Long Island Railroad Company, Respondent.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Harry G. Lóese, Donald Bourne and Herman Goldman for appellant.

      Thomas J. Brennan, Matthew J. Keany and J oseph F. Keany for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Mary A. Hansen, as Administratrix of the Estate of George R. Hansen, Deceased, Appellant, v. Long Island Railroad Company, Respondent.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Harry G. Líese, Donald Bourne and Herman Goldman for appellant.

      Thomas J. Brennan, Matthew J. Keany and Joseph F. Keany for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Jesimon Corporation et al., Respondents, v. Peter Doelger Brewing Company, Inc., Appellant.
    (Argued October 20, 1930;
    decided November 18, 1930.)

      Michael J. Horan for appellant.

      George D. Zahm, William Roth and Leon London for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Frances Cassano, an Infant, by Mary Leto, Her Guardian ad Litem, Respondent, v. Avenue A Property, Inc., Appellant.
    (Argued October 21, 1930;
    decided November 18, 1930.)

      G. Everett Hunt, William G. Walsh and Alfred W. Andrews for appellant.

      Isidore Miller and T. J. Gillen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Accounting of the Union Trust Company of Rochester, as Executor of Robert J. Strasenburgh, Deceased, Appellant. Stella G. Strasenburgh et al., Respondents.
    (Submitted October 22, 1930;
    decided November 18, 1930.)

      Arthur G. Butcher for appellant.

      J. Sawyer Fitch for respondents.
   Order affirmed, with costs against executor personally; no opinion.

Concur: Cardozo, Ch. J.; Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    Edward C. Klapp, Appellant, v. Jules S. Bache et al., Copartners under the Firm Name of J. S. Bache and Company, Respondents.
    (Argued October 22, 1930;
    decided November 18, 1930.)

      George B. Smith and W. Arthur Kline for appellant.

      Charles G. Fryer for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    Jacob Gesele et al., Appellants, Respondents, v. Gerda M. Johansen, Respondent, Appellant.
    (Argued October 22, 1930;
    decided November 18, 1930.)

      Herman Block for plaintiffs-appellants-respondents.

      Walter E. Warner for defendant-respondent-appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    Howard Brower et al., Appellants, v. Newbold T. Lawrence et al., Defendants, and Caroline T. Lawrence et al., Respondents.
    (Argued October 22, 1930;
    decided November 18, 1930.)

      Charles D. Newton for appellants.

      Harold E. Herrick and Frank Sowers for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    Clayton B. Jones et al., as Surviving Members of the Firm of George F. Jones & Son, Appellants, v. Obcanska Zalozna V Karline, Respondent.
    (Argued October 22, 1930;
    decided November 18, 1930.)

      Harold J. Baily for appellants.

      Maxwell C. Katz, Otto C. Sommerich and Raymond T. Heilpern for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    In the Matter of Restel Realty Corporation, Respondent, against DeBur Realty Co., Inc., et al., Appellants. In the Matter of Burlingham Land & Improvement Co., Inc., Respondent, against Matthew W. Hoyle, Appellant.
    (Argued October 22, 1930;
    decided November 18, 1930.)

      Reuben Weinberg and Franklin T. Voelker for appellants.

      Michael H. Wolfe for respondents.
   Judgment in each action affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    Morgan Lumber Company, Inc., Plaintiff, and J. Canby Morgan et al., Appellants, v. Samuel C. Duberstein et al., Defendants, and Morris Weiss, Respondent.
    (Argued October 22, 1930;
    decided November 18, 1930.)

      Milo 0. Bennett, W. Randolph Montgomery and Charles G. Stevenson, Jr., for appellants.

      Morris Weiss for respondent.

      Max Turner and Samuel C. Duberstein for Samuel C. Duberstein, defendant.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Not sitting: Crane, J.


text:
    Acme Steel and Malleable Iron Works, Inc., Appellant, v. The Department of Labor of the State of New York et al., Respondents.
    (Argued October 23, 1930;
    decided November 18, 1930.)

      Parton Swift for appellant.

      Hamilton Ward, Attorney-General (Allan T. Klots of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cabdozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Max Solar, Respondent, v. Realty Sureties, Inc., Appellant. Herbert Solar, an Infant, by Max Solar, His Guardian ad Litem, Respondent, v. Realty Sureties, Inc., Appellant.
    (Submitted October 23, 1930;
    decided November 18, 1930.)

      Robert H. Charlton and John T. Loughran for appellant.

      Theodore R. Jaffe, Jeremiah A. O’Leary and Morris Kohn for respondents.
   Judgment in each action affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Alva J. French, Appellant, v. New York Railways Corporation, Respondent.
    (Argued October 23, 1930;
    decided November 18, 1930.)

      Thomas F. Compton for appellant.

      Henry J. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ. Dissenting: Cardozo, Ch. J., and Crane, J.


text:
    Eva K. Davlin, Appellant, v. Title Guarantee and Trust Company, as Executor of Eva S. Warden, Deceased, Respondent.
    (Argued October 23, 1930;
    decided November 18, 1930.)

      Ira J. Schuster and Maurice B. Cheyette for appellant.

      Harry B. Berlinicke for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Sarah Barton, Respondent, v. Samuel Paul, Appellant.
    (Argued October 24, 1930;
    decided November 19, 1930.)

      John J. Scully for appellant.

      Floyd J. Reinhart for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Jennie Burgess, Respondent, v. Leo Byrnes, Appellant.
    (Argued October 24, 1930;
    decided November 19, 1930.)

      John J. Scully for appellant.

      Harry W. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Sidney Z. Stone, Appellant, v. Paterson Mutual Hosiery Mills, Inc., Respondent.
    (Submitted November 17, 1930;
    decided November 19, 1930.)

      Isidore Lowenbraun for motion.

      William F. McNulty opposed.
   Motion granted upon condition that the appellant within ten days pay the taxable costs and disbursements on the appeal to the Appellate Division and also on the appeal to this court and ten dollars costs of motion; otherwise, motion denied, with ten dollars costs.


text:
    Charles De Santis, an Infant, by Helen De Santis His Guardian ad Litem, Respondent, v. Peter Luger, Appellant.
    (Submitted November 17, 1930;
    decided November 19, 1930.)

      Ralph Weller for motion.

      Daniel Mungall opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Pincus Toback, Inc., Respondent, against William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York, Defendants. Samuel Winick et al., Appellants.
    (Submitted November 17, 1930;
    decided November 19, 1930.)

      Reginald S. Hardy for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Acquiring Title by the City of New York of Real Property Required for the Opening of Mott Avenue in the Borough of Queens. Amy A. Norton, Appellant; Cornaga Avenue Holding Corporation, Respondent.
    (Argued November 17, 1930;
    decided November 19, 1930.)

      Charles J. Nekrbas for motion.

      William S. Pettit opposed.
   Motion denied, without costs.


text:
    Fred Nann, as President of Local Union No. 3 of the Amalgamated Food Workers, Respondent, v. Lasar Raimist, as Treasurer of Local No. 500 of the Bakery and Confectionery Workers’ International Union of America, Appellant.
    (Submitted November 17, 1930;
    decided November 19, 1930.)

      Bruce R. Duncan for motion.

      Charles H. Kelby opposed.
   Motion denied, without costs.


text:
    The People of the State of New York ex rel. Fred J. Croissant, Appellant, v. John Stevens et al., Respondents.
    (Submitted October 24, 1930;
    decided November 25, 1930.)

      T. Arthur Hendricks for appellant.

      Clarence L. Crdbh for respondents.
   Order affirmed, without costs; no opinion.

Concur: Cakdozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    A. Stanley Copeland, Appellant, v. James W. Higgins, as Police Commissioner of the City of Buffalo, Respondent.
    (Submitted November 17, 1930:
    decided November 25, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 254 N. Y. 522.)


text:
    Barnet Rifkin, Respondent, v. Ed Zit Holding Corporation, Appellant.
    (Submitted November 17, 1930;
    decided November 25, 1930.)
   Motion by respondent for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 254 N. Y. 352.)

Motion by appellant to amend remittitur. (See 254 N. Y. 352.)

Motion granted, recall of remittitur requested, and when recalled, it will be amended to read as follows:

“ The judgment of the Appellate Division, entered upon its order of November 1, 1929, should be reversed, and the order of the Special Term affirmed, with costs in the Appellate Division and in this court.

The order of the Appellate Division dated February 15, 1929, should also be reversed in so far as it strikes out the defendant’s second defense of substantial performance and dismisses the first counterclaim for specific performance, and also in so far as it awards costs against the defendant, and costs and disbursements of said appeal in the Appellate Division are awarded in favor of said defendant.”


text:
    The People of the State of New York ex rel. Felice Spinelli, Respondent, v. William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York et al., Appellants.
    (Submitted November 17, 1930;
    decided November 25, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 254 N. Y. 601.)


text:
    Philson Holding Corporation, Respondent, v. Baychester Manor, Inc., Appellant, Impleaded with Others.
    (Submitted November 24, 1930,
    decided November 25, 1930.)

      Harry Hausknecht for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of William Landau, an Alleged Incompetent Person, Appellant. United States Fidelity and Guaranty Company et al., Respondents.
    (Argued November 17, 1930;
    decided December 2, 1930.)

      William T. Van Alstyne for appellant.

      William J. McArthur and Robert Or ay for respondents.
   Appeal dismissed, without costs, on the ground that the incompetent and the special guardian are not parties to the proceeding nor persons aggrieved; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    New York Life Insurance Company, Respondent, v. Edward Rosen et al., Appellants.
    (Submitted November 17, 1930;
    decided December 2, 1930.)

      Abraham H. Sarasohn for appellants.

      Louis H. Cooke and Ferdinand H. Pease for respondent.
   Order affirmed, with costs. Question certified answered in the negative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the Estate of William B. Hughes, Deceased. Clifton O. Hughes, et al., Appellants; Elmer E. Kelley, as Executor, et al., Respondents.
    (Argued November 17, 1930;
    decided December 2, 1930.)

      Charles E. Congdon for Clifton 0. Hughes, appellant.

      Herman Lavery for executor, respondent.

      Henry P. Nevins for claimant, respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Grane, Lehman, Kellogg and Hubbs, JJ. Dissenting: Cardozo, Ch. J., and O’Brien, J.


text:
    In the Matter of the People of the State of New York by James A. Beha, Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the Consolidated Assurance Company, Limited, of London, England. Joseph P. Grabfield, Appellant.
    (Submitted November 17, 1930;
    decided December 2, 1930.)

      William Otis Badger and Alfred L. Pitts for appellant.

      John M. Downes and Clarence C. Fowler for Superintendent of Insurance, respondent.
    . Robert J. Sykes and Albert Bonynge for Henry A. Van De Linde, British liquidator of the Consolidated Assurance Company, Limited, respondent.
   Order affirmed, with costs; no opinion.

Concur: Cahdozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    In the Matter of the People of the State of New York by James A. Beha, as Superintendent of Insurance, Appellant, for an Order to Take Possession of the Property of the Moscow Fire Insurance Company of Moscow, Russia. Henry F. Lesch, Respondent.
    (Argued November 17, 1930:
    decided December 2, 1930.)

      James F. Donnelly, Alfred C. Bennett, John M. Downes and Clarence C. Fowler for appellant.

      Paul Bonynge and Daniel A. Dorsey for respondent.

      Paul C. Whipp and Frederick B. Campbell for Moscow Fire Insurance Company, respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York ex rel. 347 West Thirty-sixth Street Corporation, Appellant, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    (Argued November 17, 1930;
    decided December 2, 1930.)

      I. Maurice Wormser, Max Leff and David Drechsler for appellant.

      Arthur J. W. Hilly, Corporation Counsel (William H. King and Isaac Phillips of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Charles M. Palmer et al., Copartners under the Firm Name of Palmer, DeWitt & Palmer, Respondents, v. New York Herald Company, Appellant.
    (Argued November 18, 1930;
    decided December 2, 1930.)

      Joseph H. Choate, Jr., Thomas Garrett, Jr., and James A. Sweet for appellant.

      W. Randolph Montgomery, Milo 0. Bennett and Allen S. Wrenn for respondents.
   Judgment affirmed, with .costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Mary C. McNamara, Respondent, v. New York State Railways, Appellant.
    (Argued November 18, 1930;
    decided December 2, 1930.)

      Carroll N. Whitman and George D. Ogden for appellant.

      J. Emmett O’Brien for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., «Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    Interstate Packing Corporation, Respondent, v. New York Indemnity Company, Appellant.
    (Argued November 18, 1930;
    decided December 2, 1930.)

      Thomas A. Clarke, Bernard J. Vincent and Clarence E. Mellen for appellant.

      Samuel D. Spector, A. G. Grayzel and Simeon F. Gross for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane and Lehman, JJ. Dissenting: Kellogg, O’Brien and Hubbs, JJ., on the ground that the bond of the defendant indemnified the plaintiff against loss and that the plaintiff has sustained none.


text:
    Merchants Transfer and Storage Company, Respondent, v. Jerry Lipmann et al., Copartners under the Firm Name of Lipmann and Melniker, Appellants.
    (Argued November 18, 1930;
    decided December 2, 1930.)

      Robert H. Koehler for appellants.

      Charles C. Schwartz for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York, Respondent, v. Phillip Pesky, Appellant.
    (Submitted November 24, 1930;
    decided December 2, 1930.)
   Motion for reargument denied. (See 254 N. Y. 373.)


text:
    In the Matter of John F. Hicks, an Attorney, Appellant. William J. Morris, Jr., et al., Respondents. In the Matter of James W. Hicks, an Attorney, Appellant. William J. Morris, Jr., et al., Respondents.
    (Argued November 19, 1930;
    decided December 4, 1930.)

      Harold R. Medina and Edgar F. Hazelton for appellant.

      William J. Morris, Jr., and Charles S. Colden for respondents.
   Orders affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Tony Lombardi, Respondent and Appellant, v. United Hoisting Co., Inc., Defendant, Greenfield Iron Works, Inc., Defendant-Respondent, and Joseph Holme, Inc., Defendant-Appellant, Impleaded with Another.
    (Argued November 19, 1930;
    decided December 4, 1930.)

      George J. Stacy and James J. Mahoney for appellant.

      James A. Gray and William S. Butler for plaintiff-respondent and appellant.

      A. David Benjamin for respondent.
   On the appeal by the defendant Joseph Holme, Inc.: Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts on the ground that the negligent act if any was not in the course of the business of the defendant-appellant.

On the appeal by the plaintiff from the judgment in favor of the Greenfield Iron Works: Appeal dismissed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    S. & R. Greene, Inc., Appellant, v. Hattie Realty Corporation, Respondent.
    (Argued November 19, 1930;
    decided December 4, 1930.)

      Harry Bijur for appellant.

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

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    I. Tanenbaum Son & Company, Respondent, v. Brooklyn Furniture Company, Appellant.
    (Argued November 19, 1930;
    decided December 4, 1930.)

      Jonas J. Shapiro for appellant.

      Charles A. Houston and Mayer L. Halff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Gloria Schneiderman, an Infant, by William Schneiderman, Her Guardian ad Litem, et al., Appellants, v. Mother’s Friend’s Wet Wash Laundry, Inc., Respondent.
    (Argued November 19, 1930;
    decided December 4, 1930.)

      Sidney J. Feltenstein and Moses Feltenstein for appellants.

      William Dike Feed for respondent.
   Order of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that there was a question of fact as to the defendant’s negligence; no opinion.

Concur: Pound, Kellogg, O’Brien and Hubbs, JJ. Dissenting: Gardozo, Ch. J., Crane and Lehman, JJ.


text:
    Lillian M. Rowell, Appellant, v. John Hutzler Lumber Company, Inc., et al., Respondents, Impleaded with Others. Frank S. Rowell, Appellant, v. John Hutzler Lumber Company, Inc., et al., Respondents, Impleaded with Others.
    (Argued November 20, 1930;
    decided December 4, 1930.)

      Carlton E. Ladd for appellants.

      Frank Gibbons for respondents.
   Judgment in each action affirmed, with costs, on the ground that the evidence fails to establish negligence or other wrong on the part of the defendants, the owners of the building, who had parted with possession; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Warner-Quinlan Company, Appellant, v. Elizabeth W. Smith, Respondent.
    (Argued November 20, 1930:
    decided December 4, 1930.)

      II. E. Simpson for appellant.

      Riley H. Heath for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Krllogg, O’Brien and Hubbs, JJ.


text:
    Jesse Adler, Appellant, v. Emil Berkowitz et al., Defendants, and Rose Gast, Respondent.
    (Submitted December 1, 1930;
    decided December 4, 1930.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 254 N. Y. 433.)


text:
    James Shearod, Appellant, v. Forty-first and Park Avenue Corporation, Respondent.
    (Submitted December 1, 1930;
    decided December 4, 1930.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 254 N. Y. 618.)


text:
    Abraham Gelman, Respondent, v. Joseph P. Day, Inc., Appellant.
    (Argued November 21, 1930;
    decided January 6, 1931.)

      William Harvey Smith and H. Scheiffelin Sayers for appellant.

      George A. Arkwright for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Lila Schifter, an Infant, by Isaac Schifter, Her Guardian ad Litem, Respondent, v. Bessie Magaziner, Appellant. Henrietta Schifter, Respondent, v. Bessie Magaziner, Appellant.
    (Argued November 21, 1930;
    decided January 6, 1931.)

      John D. Lyons, Nellie Childs Smith and George B. Hurley for appellant.

      Ellsworth Baker for respondents.
   Judgment in each action affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    The People of the State of New York ex rel. German Masonic Temple Association of the City of New York, Appellant, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    (Argued November 21, 1930;
    decided January 6, 1931.)

      Eugene Cohn and Hugo J. Stelzner for appellant.

      Arthur J. W. Hilly, Corporation Counsel (William H. King of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Max Barash, Appellant, v. The Board of Education, School District of the City of New York, Respondent.
    (Submitted November 21, 1930;
    decided January 6, 1931.)
    Aso B. Kellogg for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Elliot 3. Benedict and Thomas W. A. Crowe of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Dominick Condeme, Respondent, v. New York Telephone Company, Appellant.
    (Argued December 2, 1930;
    decided January 6, 1931.)

      Charles J. Herrick for appellant.

      Thomas La Rosa for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed and complaint dismissed, with costs in all courts on the ground that the plaintiff has not proved his freedom from contributory negligence; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, 'Kellogg, O’Brien and Hubbs, JJ.


text:
    Vincenzo Alaimo, Respondent, v. Lucia P. Ange et al., Appellants.
    (Submitted November 21, 1930;
    decided January 6, 1931.)

      Arthur V. D. Chamberlain for appellants.

      Charles E. Callahan and James L. Brewer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Benjamin G. Hitchings, Inc., Appellant, v. Hartford Accident and Indemnity Company, Respondent.
    (Argued November 24, 1930;
    decided January 6, 1931.)

      Clarence F. Corner, John S. Bussell and Gerald F. Hoyt for appellant.

      Leslie D. Dawson and Edwin De T. Bechtel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Helena F. Collins, Respondent, v. Central Trust Company of Rochester et al., as Executors of J. Raymond Kelly, Deceased, Appellants.
    (Argued November 24, 1930;
    decided January 6, 1931.)

      J. Sawyer Fitch for appellants.

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

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Metropolitan Casualty Insurance Company of New York, Appellant, v. Union Indemnity Company of Louisiana, Respondent.
    (Argued November 25, 1930;
    decided January 6, 1931.)

      Eric P. Smith for appellant.

      Claude T. Taggart and Thomas A. Clarke for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    Thomas J. Higgins, Respondent, v. Metropolitan Jockey Club, Appellant.
    (Argued November 25, 1930;
    decided January 6, 1931.)

      John D. Flynn, Benjamin Reass, Emanuel Newman and Irving Moldauer for appellant.

      Frederic G. Rita for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Kellogg and O'Brien, JJ. Dissenting: Lehman, J. Not sitting: Hubbs, J.


text:
    Stanley Fabisiak, an Infant, by Walter Fabisiak, His Guardian ad Litem, Appellant, v. Empire Steel Partition Co., Inc., Respondent. Walter Fabisiak, Appellant, v. Empire Steel Partition Co., Inc., Respondent.
    (Argued November 26, 1930;
    decided January 6, 1931.)

      Thomas J. Cuff and Milton Pinkus for appellants.

      Joseph F. Hanley, Irving Ehrlich and II. C. Houlihan for respondent.
   Judgment in each action affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    Fred Wood, Respondent, v. Martin Saunders, Appellant.
    (Argued November 26, 1930;
    decided January 6, 1931.)

      Benjamin Lifshitz, Alfred B. Nathan and S. Howard Imbrey for appellant.

      Thomas J. Cuff and Milton Pinkus for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    Samuel D. Robinson, as Administrator of the Estate of Isabel Robinson, Deceased, Respondent, v. John D. McCoach, as Sheriff of the County of Orange, Appellant.
    (Argued November 26, 1930;
    decided January 6, 1931.)

      Henry Hirschberg for appellant.

      Stanley B. Johnson, Arthur E. Kaley and Harry L. Toplitt for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Caedozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Hubbs, J.


text:
    The People of the State of New York, Respondent, v. Anthony Luciano and Anthony Velluchio, Appellants.
    (Argued December 1, 1930;
    decided January 6, 1931.)

      Floyd J. Reinhart for Anthony Luciano, appellant.

      W. Arthur Kline for Anthony Velluchio, appellant.

      William J. Crangle, District Attorney, for respondent.
   Judgment of conviction as to each defendant affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    George J. Balshan et al., Respondents, v. The State of New York, Appellant.
    (Argued December 1, 1930;
    decided January 6, 1931.)

      Hamilton Ward, Attorney-General {James Gibson of counsel), for appellant.

      James V. Coffey, Joseph J. Casey and Charles J. Tobin . for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Crane, Lehman, Kellogg and Hubbs, JJ. Dissenting: Pound and O’Brien, J.


text:
    Alfred T. Davison, Respondent, v. Henry Lissberger, Appellant.
    (Argued December 1, 1930;
    decided January 6, 1931.)

      Remsen B. Ostrander for appellant.

      Alfred T. Damson and Alex R. Jones for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Caroline T. Woodbury et al., Appellants, v. Charles A. Garrity et al., Defendants, and Max Schrage et al., Respondents.
    (Argued December 2, 1930;
    decided January 6, 1931.)

      Walter E. Warner for appellants.

      Henry P. Hallock, Jr., and Harry E. Fajans for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Peoples Bank of Buffalo, Respondent, v. Albert Pick & Co., Appellant, and Frontier Mortgage Corporation et al., Respondents, Impleaded with Others.
    (Argued December 4, 1930;
    decided January 6, 1931.)

      Alfred M. Saperston and Daniel N. McNaughtan for appellant.

      W. J. Wetherbee and Wilbur B. Grandison for plaintiff-respondent.

      James 0. Moore and Owen B. Augspurger for defendants-respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    B. Edmund David, Inc., Appellant, v. Fifth Avenue Thirty-fourth Street Realty Co., Inc., Respondent.
    (Argued November 20, 1930;
    decided January 6, 1931.)

      Eugene L. Bondy for appellant.

      John Kirkland Clark and Ganson J. Baldwin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Antonio Pertusiello et al., Respondents, v. Joseph Iadicicco et al., Appellants.
    (Argued November 24, 1930;
    decided January 6, 1931.)

      Jerome B. Me Dougal for appellants.

      Frederick W. Bitter and Henry Koch for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Harry Lemberger, Appellant, v. Sam Kaner et al., Respondents.
    (Argued October 16, 1930;
    decided January 6, 1931).

      Harold S. Kohn for appellant.

      Isador Goetz and Henry H. Spitz for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ.


text:
    Henry W. Hooey, Appellant, v. Airport Construction Company et al., Respondents.
    (Submitted January 5, 1931;
    decided January 13, 1931.)
   Motion for reargument or to amend remittitur denied, with- ten dollars costs and necessary printing disbursements. (See 253 N. Y. 486.)


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Widening of Fourth Avenue in the Borough of Manhattan. Parlex Holding Corporation, Appellant.
    (Submitted January 5, 1931;
    decided January 13, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 255 N. Y. 25.)


text:
    Annie Schatzberg, Respondent, v. Louis Schatzberg, Appellant.
    (Argued January 5, 1931;
    decided January 13, 1931.)

      Louis Jersawit for motion.

      Abraham, Mopper opposed.
   Motion denied, without prejudice to its renewal in connection with the argument of the appeal.


text:
    The People of the State of New York, Respondent, v. Sam Scherr, Appellant.
    (Submitted January 5, 1931;
    decided January 13, 1931.)

      Charles B. McLaughlin, District Attorney (Sol Boneparth of counsel), for motion.

      Harold S. Kohn opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York ex rel. Arthur J. Lynch, Respondent, v. William Laughlin, as Mayor of the City of Niagara Falls, et al., Appellants.
    (Argued January 5, 1931;
    decided January 13, 1931.)

      Augustus Thibaudeau for motion.

      George W. Knox opposed.
   Motion granted and appeal dismissed, with costs and. ten dollars costs of motion.


text:
    Summers Lumber and Supply Corporation, Respondent, v. J. S. Barbara Construction Corporation et al., Defendants. Provident Mortgage Corporation, Appellant, and H. Clay Waldman, Inc., et al., Respondents.
    (Submitted January 5, 1931;
    decided January 13, 1931.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 255 N. Y. 525.)


text:
    Caroline T. Woodbury et al., Appellants and Respondents, v. Charles A. Garrity et al., Appellants, and Max Schrage et al., Respondents.
    (Argued January 5, 1931;
    decided January 14, 1931.)

      Walter E. Warner for motion.

      James A. Gray opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days appellants file and serve a statutory undertaking and pay ten dollars costs of motion, in which event the motion is denied, without costs.


text:
    In the Matter of Proving the Will of James F. Barger, Deceased. James Barger et al., Appellants; Samuel Barger, Respondent.
    (Submitted January 12, 1931;
    decided January 14, 1931.)

      Stuart Baker for motion.

      Dorothy Frooks opposed.
   Motion denied, without costs.


author: O’Brien, J.

text:
    In the Matter of Frank McMahon, Respondent, against Frank B. Devlin, as Commissioner of Public Safety of the City of Yonkers, Appellant.
    (Submitted January 12, 1931;
    decided February 10, 1931.)
    (See 254 N. Y. 397.)

      Paul L. Bleakley for motion.

      Harry J. Laragh, Corporation Counsel (Vincent C. De Carlo of counsel), opposed.
   O’Brien, J.

Petitioner argues that we overlooked the decision in People ex rel. Garvey v. Partridge (180 N. Y. 237). Although that case is not mentioned in the opinion, we did not overlook it but gave it thoughtful consideration. It has no application to the facts now before us. There the sole question to be decided was whether a deputy police commissioner of New York city before whom charges could be heard was required to make a written finding of guilt in order to give the police commissioner authority to convict and punish. The answer was in the negative. Under the Greater New York Charter (§ 270) as it then stood, the police commissioner was vested with authority to delegate to either of his deputies “ any of his powers ” except the power of making appointments and transfers. There is no fact in the Garvey case which required a decision that the commissioner, if he chose, was unauthorized to delegate to his deputy the power not only to hear charges but also to determine them and to make removals. In Judge Werner’s opinion, sections 270, 300, 301 and 302 of the charter are summarized and this language follows: “ It is obvious that under these sections of the present charter the deputy commissioners are authorized to examine, hear and investigate charges against members of the force, but that the power to convict and punish upon such charges is vested solely in the commissioner, except in his absence or disability, when it devolves upon his deputies in the order of their rank.” There, the commissioner had not, in fact, delegated to a deputy the power either to convict or to remove. Those powers which were conferred upon him by section 302 and which by section 270 he could delegate to his deputy, he reserved to himself. Under section 300 of the charter he was authorized to adopt rules and regulations for the hearing and determination of charges preferred against members of the police force and he did so. In conformity with such rules, the deputy conducted a trial of an accused patrolman and the commissioner found him guilty and made the removal. There is no similarity between these cases. The difference in facts distinguishes the principle.

The motion should be denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of Fanny B. Leland et al., Respondents. Creston Apartments Corporation, Appellant.
    (Argued January 6, 1931;
    decided February 10, 1931.)

      Meyer Levy, James Murphy and Charles H. Friedrich for appellant.

      Francis X. 'Hennessy for respondents.
   Per Curiam.

The order should be interpreted as requiring the payment of the purchase price directly to the United States Trust Company, the substituted trustee. So interpreted the irregularities in the proceeding are formal rather than substantial.

The order should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not sitting.

Order affirmed.


text:
    In the Matter of the Application of the People of the State of New York, by James A. Beha, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the Russian Reinsurance Company of Petrograd, Russia, Appellant. Alexander Bernard et al., Appellants. In the Matter of the Application of the People of the State of New York, by James A. Beha, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of First Russian Insurance Company Established in 1827, Appellant. Leonid Davydoff et al., Appellants.
    (Argued January 5, 1931;
    decided February 10, 1931.)

      Frederick B. Campbell and Paul C. Whipp for appellants.

      Walter H. Poliak for Victor Yermoloff amicus curice.

      James F. Donnelly, Alfred C. Bennett, John M. Downes and Clarence C. Fowler for respondent.
   Per Curiam.

These appeals have ceased to be of more than abstract importance or significance in view of other decisions, announced simultaneously with this, whereby the court has indicated a plan for the distribution of the surplus assets.

The appeals should be dismissed without costs to either party.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Appeals dismissed.


text:
    In the Matter of the Claim of Thomas Broderick, Respondent, against George Colon & Co., et al., Appellants. State Industrial Board, Respondent.
    (Argued January 6, 1931;
    decided February 10, 1931.)

      Frank L. Ward for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent,
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    In the Matter of the Claim of Ragnor Johnson, Respondent, against Dahlstrom Metallic Door Company et al., Appellants. State Industrial Board, Respondent.
    (Argued January 6, 1931;
    decided February 10, 1931.)

      John S. Leonard for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    In the Matter of the Claim of Philip Salembene, Respondent, against Premier Fireproofing Corporation et al., Appellants. State Industrial Board, Respondent.
    (Argued January 6, 1931;
    decided February 10, 1931.)

      T. Carlyle Jones and Bernard J. Vincent for appellants.

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cakdozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    In the Matter of the Claim of Eleazer Twitchell, against Wagner Productions, Inc., Respondent. State Industrial Board, Appellant.
    (Argued January 6, 1931;
    decided February 10, 1931.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for appellant.

      William Wafren Dimmick, Meyer Kurz and Samuel Israel for respondent.
   Order affirmed, with costs against the State Industrial Board; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    In the Matter of the Claim of Catherine Fronce against The Prosperity Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued January 6, 1931;
    decided February 10, 1931.)

      William B. Davis and E. C. Sherwood for appellants.
    - Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion,.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    In the Matter of Frank J. Carr, Respondent, against Charles E. Roesch et al., as Members of the Board of Police Pensions of the City of Buffalo, Appellants.
    (Argued January 7, 1931;
    decided February 10, 1931.)

      Charles L. Feldman, Corporation Counsel (James A. Deckop of counsel), for appellants.

      William S. Bann for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    The People of the State of New York ex rel. S. Warren Quick, Appellant, v. Edward J. Flynn, as Secretary of State, et al., Respondents.
    (Argued January 7, 1931;
    decided February 10, 1931.)

      Carsten H. Ludder for appellant.

      John J. Bennett, Jr., Attorney-General (W. Earl 'Smith of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.


text:
    Rebecca G. Bowen, Respondent, v. Alphonsus L. Poole et al., Defendants. Trachson Building Corporation, Appellant.
    (Submitted January 7, 1931;
    decided February 10, 1931.)

      Lloyd B. Ranter for appellant.

      Fred L. Gross for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ. Not sitting: Kellogg, J.