text:
    Benjamin Bazinsky, Doing Business under the Name of Oxford Garage, et al., Appellants, v. Kesbec, Inc., Respondent.
    Argued June 5, 1941;
    decided July 29, 1941.

      William F. Walsh, Robert L. Levine and Abraham Green-bush for appellants.

      William C. Cannon, Arthur H. Haaren and Harold W. Bissell for respondent.
   Judgment affirmed, with costs, on the ground that the use of defendant’s premises for commercial parking of more than five motor vehicles is lawful (see Matter of Boardwalk and Seashore Corp. v. Murdock, 286 N. Y. 494, decided herewith), and that, therefore, there is no basis for grantinginjunctive relief. No opinion. (See 286 N. Y. 723.)

• Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Dyckman Auto Sales Service, Inc., et al., Respondents.
    Argued June 5, 1941;
    decided July 29, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair and Francis J. Bloustein of counsel), for appellant.

      Arthur H. Haaren, Frank W. Demuth and John G. Coleman for respondents.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Remo Engineering Corporation, Appellant and Respondent, v. City of New York, Respondent and Appellant.
    Argued June 3, 1941;
    decided July 29, 1941.

      Emil V. Pilz and Asa B. Kellogg for plaintiff, appellant and respondent.

      William C. Chanler, Corporation Counsel (John G. Clancy and Paxton Blair of counsel), for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    American Dock Company et al., Respondents, v. City of New York et al., Appellants.
    •Argued June 2, 1941;
    decided July 29, 1941.

      William, C. Chanler, Corporation Counsel (Seymour B. Quel, Oscar L. Tucker and George G. Gallantz of counsel), for City of New York et al., appellants.

      John L. Galey and Stanley R. Wright for New York Foreign Trade Zone Operators, Inc., appellant.

      Carl M. Owen, Redmond F. Kernan, Jr., and Charles A. Davey for respondents.

      Mathias F. Correa, United States Attorney (William F. Young of counsel), for United States Foreign Trade Zones Board, amicus curise.

   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Continental Grain Company, Appellant, v. Philip N. Christie, Respondent.
    Argued April 21, 1941;
    decided July 29, 1941.

      Frederick E. Crane, Forrest E. Single, Douglas D. Crystal and William Weymar, Jr., for appellant.

      George S. Brengle, Oscar R. Houston and Henry J. Bogatko for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    John T. Irwin, Respondent, v. Thomas J. Foley, as President of Local Union 125 of International Union of Operating Engineers, et al., Appellants.
    Argued June 13, 1941;
    decided July 29, 1941.

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

      Isidore Beerman and Leon A. Beerman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ. Lehman, Ch. J., dissents and votes to reverse on the°ground that the trial court was not bound as matter of law to give credence to the testimony of the plaintiff.


text:
    In the Matter of the Claim of Charles Eckler and Others. Frieda S. Miller, as Industrial Commissioner, Appellant; Gannett Company, Inc., Respondent. In the Matter of the Claim of Charles Eckler and Another. Frieda S. Miller, as Industrial Commissioner, Appellant; Gannett Company, Inc., Respondent.
    Argued June 12, 1941;
    decided July 29, 1941.

      John J. Bennett, Jr., Attorney-General (Francis R. Curran, Henry Epstein and W. Gerard Ryan of counsel), for appellant.

      Casper V. Baltensperger and Arthur L. Stern for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Accounting of Robert E. Bergman, as Guardian of George R. Bunting, an Infant. Emma J. Bergman, as Administratrix of the Estate of Robert E. Bergman, Deceased, et al., Appellants; George R. Bunting, Respondent. In the Matter of the Accounting of Robert E. Bergman, as Executor of Katherine L. Bunting, Deceased. Emma J. Bergman, as Administratrix of the Estate of Robert E. Bergman, Deceased, Appellant; George R. Bunting, Respondent. In the Matter of the Accounting of Robert E. Bergman, as Trustee under the Will of Harry F. L. Bunting, Deceased. Emma J. Bergman, as Administratrix of the Estate of Robert E. Bergman, Deceased, Appellant; George R. Bunting, Respondent.
    Argued June 9, 1941;
    decided July 29, 1941.

      Hartwell Cabell and William Richards for Maryland Casualty Company, appellant.

      Vincent J. LaGamma for Emma J. Bergman, as administratrix of the estate of Robert E. Bergman, deceased, appellant.

      Hugo Wintner, Robert J. Fox, John G. Markey and Walter A. Donnelly for respondent.
   Appeal dismissed, without costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Wood Packing Box Company, Respondent, against Joseph D. McGoldrick, Comptroller of the City of New York, Appellant.
    Argued June 5, 1941;
    decided July 29, 1941.

      William, C. Chanler, Corporation Counsel (Arthur A. Segall, Sol Charles Levine and Meyer Bernstein of counsel), for appellant.

      William Walzer and Raymond Gitlin for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Estate of Charles S. Baker, Deceased. New York Central Railroad Company et al., Appellants; Seth Baker, Respondent.
    Argued June 3, 1941;
    decided July 29, 1941.

      Mark N. Turner and John E. Leach for New York Central Railroad Company, appellant.

      William R. Van Campen for Onalee Baker, appellant.

      Philip Halpern, Emil L. Cohen and George E. Phillies for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Conwat and Desmond, JJ, Taking no part: Lewis, J,


text:
    Gertrude Adams, Respondent, v. Edward Surlock et al., Appellants. Howard Adams, Respondent, v. Edward Surlock et al., Appellants. Elizabeth G. Adams, an Infant, by Howard Adams, Her Guardian ad Litem, Respondent, v. Edward Surlock et al., Appellants.
    Argued May 29, 1941;
    decided July 29, 1941.

      Gilbert R. Hughes for appellants.

      Willard R. Pratt and Merchant B. Hall for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Glenn A. Irvin, as Trustee in Bankruptcy of the Estate of Frank M. Schardt, Appellant, v. Frank M. Schardt et al., Respondents.
    Argued May 27, 1941;
    decided July 29, 1941.

      Joseph A. Wechter for appellant.

      Arthur E. Otten for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Nettie Richman, as Administratrix of the Estate of Alex Richman, Deceased, Appellant, v. Louis Follman, Respondent.
    Submitted June 6, 1941;
    decided July 29, 1941.

      Alexander D. Diamond, Morris H. Bloomberg and Irving Bloomberg for appellant.

      Harold B. Medina, Gerard M. Bloomfield and John W. Jordan for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Lewis and Desmond, JJ. Dissenting: Rippey and Conway, JJ.


text:
    Joseph Lubkin, on Behalf of Himself and Others, Respondent, v. David S. Stern et al., Appellants, Impleaded with Another.
    Argued June 18, 1941;
    decided July 29, 1941.

      Eugene L. Bondy for appellants.

      Leo B. Mittelman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Jack Levine, Respondent, against Joseph E. Levine, Appellant.
    Submitted June 18, 1941;
    decided July 29, 1941.

      Jesse Climenko for appellant.

      Samuel Hoffman and Bernard Buchwald opposed.
   Motion dismissed on the ground that the order is not final.


text:
    Hygall Clothing Company, Respondent, v. Harry Katz’s Clothes, Inc., et al., Appellants, Impleaded with Another.
    Submitted June 18, 1941;
    decided July 29, 1941.

      Archibald Palmer and Samuel Masia for motion.

      Saul S. Brin opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground there has been no final determination of the action. (See 286 N. Y. 708.)


text:
    Chemical Bank & Trust Company et al., as Executors of Edgar P. Lawson, Deceased, Respondents, v. Jeanne Lawson, Appellant, and Lawson Williams et al., Respondents, Impleaded with Others.
    Argued June 18, 1941;
    decided July 29, 1941.

      Allan S. Locke, Benjamin Wiener, Herman Goldman, John C. Spallone, William Levin and John Caldwell Myers for motions.

      Martin Conboy, Ernest E. Wheeler, David Asch and Archibald H. Cashion opposed.
   Motions denied.


text:
    Charles S. Davison et al., Appellants, v. Parke, Austin & Lipscomb, Inc., et al., Respondents, Impleaded with Others.
    Submitted June 18, 1941;
    decided July 29, 1941.
   ' Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 500.)


text:
    Anthony Siviglia, Respondent, v. Julius P. Kronowitz, Appellant.
    Submitted July 29, 1941;
    decided July 29, 1941.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 769.)


text:
    The People of the State of New York, Respondent, v. Arthur Chalmers, Appellant.
    Submitted July 29, 1941;
    decided July 29, 1941.
   Motion for reargument denied. (See 281 N. Y. 651.)


text:
    In the Matter of Philip J. Murphy, Respondent, against Lewis J. Valentine, as Police Commissioner of the City of New York, Appellant.
    Submitted July 29, 1941;
    decided July 29, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 524.)


text:
    In the Matter of George Zovich, Appellant, against Edward W. Eaton, County Judge of Tioga County, et al., Respondents.
    Submitted July 29, 1941;
    decided July 29, 1941.

      George Zovich, in person, for motion.
    No one opposed.
   Motion denied on the ground appeal lies as of right and upon such appeal the same will be heard on typewritten papers.


text:
    Chemical Bank & Trust Company et al., as Executors of Edgar P. Lawson, Deceased, Respondents, v. Jeanne Lawson, Appellant, and Lawson Williams et al., Respondents.
    Submitted July 29, 1941;
    decided July 29, 1941.

      Martin Conboy, Ernest E. Wheeler and David Asch for motion.

      Benjamin Wiener, Herman Goldman, Allan S. Locke and William Levin opposed.
   Motion denied on the ground that an appeal has been , taken as of right.


text:
    In the Matter of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Opening and Extending of Exterior Street and Other Streets in the Borough of The Bronx. Mabel Poillon et al., Appellants.
    Submitted July 29, 1941;
    decided July 29, 1941.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by providing that the reversal by this court is with costs in all courts.” (See 285 N. Y. 455.)


text:
    In the Matter of Louis Dunst, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendants. Samuel Gold, Appellant.
    Argued September 11, 1941;
    decided September 11, 1941.

      Benjamin S. Kassen, Mortimer E. Greif, Sidney Gold and Edward L. Josowitz for appellant.

      John T. Booling, Sol H. Eisler and Louis Bunst for respondent.
   Order of Appellate Division reversed and order of Special Term affirmed, without costs. The affidavit upon the blank furnished by the Board of Elections, though not the best form of affidavit, constitutes compliance with the provisions of section 139 of the Election Law. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Lewis, Conway and Desmond, JJ. Dissent: Rippey, J.


text:
    In the Matter of Maurice Calman et al., Respondents, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York et al., Respondents, and Eugene P. Connolly, as Chairman of the New York County Committee of the American Labor Party, Appellant.
    Argued September 11, 1941;
    decided September 11, 1941.

      Samuel M. Blinken for Eugene P. Connolly, as chairman of the New York County Committee of the American Labor Party appellant.

      Copal Mintz and Harold Baer for respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of James Swan et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendants. Vincenzo J. Gentilesco et al., Respondents.
    Argued September 11, 1941;
    decided September 11, 1941.

      George Feinberg for appellants.

      James B. M. McNally for respondents.
   Order affirmed, without costs. The objectors were necessary parties; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Lorenzo C. Carlino et al, Appellants; Wilfred M. Thompson et al., Respondents.
    Argued September 11, 1941;
    decided September 11, 1941.

      Henry Cohen for appellants.

      ■Milton Popper for respondents.

      Marcus G. Christ, County Attorney {John J. Knob of counsel), for Board of Elections.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Albina Bevenga et al., Appellants, against the Board of Elections of the City of New York, Defendant. Jerome Conglialosi, Respondent.
    Argued September 11, 1941;
    decided September 11, 1941.

      Raymond A. Kistenbaum for appellants.

      Samuel J. Joseph and Demarest J. Hahn for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, .Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Anthony Constantino et al., Appellants; Joseph J. Cioffi et al., Respondents. In the Matter of Anthony Constantino et al., Appellants; Joseph J. Verdicchio et al., Respondents.
    Argued September 11, 1941;
    decided September 11, 1941.

      Philip J. Zichello for appellant.

      John P. Sweeny for Joseph J. Cioffi et al., respondents.

      Joseph A. Muccia for Joseph J. Verdicchio et al., respondents.
   In each proceeding order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Joseph F. Longhway, as Chairman of the Democratic City Committee of the City of Oswego, Appellant, v. Nelson B. Hall, as City Clerk of the City of Oswego, et al., Respondents.
    Argued September 11, 1941;
    decided September 11, 1941.

      Daniel C. Williams and Francis L. McElroy for appellant.

      Harry C. Mizen and George M. Penney for Nelson B. Hall, respondent.

      Wm. W. Gallagher for Commissioners of Election, respondents.
   Order affirmed, without costs. With reference to the amendment to section 2 of the Oswego City Court Act by chapter 69 of the Laws of 1937, see Matter of Wing (278 N. Y. 710). No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Henry Albert, Appellant, against the Board of Elections of the City of New York, Defendant. Oscar D. Rose, Respondent.
    Argued September 11, 1941;
    decided September 11, 1941.

      Irving Lemov and Isidore Ginsberg for appellant.

      George B. Rice for respondent.

      William C. Chanter, Corporation Counsel (Robert H. Schaffer of counsel), for Board of Elections.
   Order of the Appellate Division reversed and that of the Special Term affirmed, without costs, upon the ground that the alleged irregularity upon sheet 21 did not in the circumstances destroy the entire petition as a matter of law. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of James P. Ryan et al., Respondents, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. Peter Coyle et al., Appellants.
    Argued September 11, 1941;
    decided September 11, 1941.

      Kermit F. Kip, John J. O’Connor and John 0. Driscoll for appellants.

      Sol II. Eisler, amicus curias.

      Francis J. McCaffrey for petitioners, respondents.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer of counsel), for Board of Elections, respondent.
   Order affirmed, without costs. The statute provides for a statement of the occupation of a substituted candidate. The court may not delete that provision. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of James F. McElroy, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendant. William J. Goodwin, Appellant.
    Argued September 11, 1941;
    decided September 11, 1941.

      Benjamin Gassman and Thomas A. Sully for appellant.

      Sidney Sugarman, Carl .Eill Schiffer, Samuel W. Phillips and Dennis F. Biordan for respondent.

      William C. Chanter, Corporation Counsel (Robert H. Schaffer of counsel), for Board of Elections, defendant.
   Order affirmed, without costs. The provision for a statement of the election district is not complied with by a statement of an erroneous district. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Michael J. Moriarty et al., Appellants, v. James Butler Grocery Company et al., Defendants, and Dorothy C. Butler, as Executrix of James Butler, Jr., Deceased, et al., Respondents.
    Argued June 11, 1941;
    decided October 7, 1941.

      Frederick E. Crane, George Gussaroff, William B. Bawick, W. I. Levy, William F. Corson and Joseph Nemerov for appellants.

      Alfred J. L’Heureux, Pete X. McManus and Frederick S. Bogan for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ. Taking no part: Desmond, J.


text:
    Mordecai Benguiat et al., Plaintiffs, v. Gotham National Bank of New York, Defendant. Manufacturers Trust Company, Appellant; Massachusetts Bonding and Insurance Company, Respondent.
    Submitted June 2, 1941;
    decided October 7, 1941.

      Carl Sherman for motion.

      Leonard G. Bisco, Nathan Waxman and George B. Balamut opposed.
   Motion denied, with leave to renew, if counsel are so. advised, on argument of appeal. ;


text:
    In the Matter of the Accounting of Isabel Nichols, as Executrix of Leo P. Burrows, Deceased, Respondent. Ralph E. Prime, Jr., et al., as Trustees under the Will of Ralph E. Prime, Deceased, Appellants.
    Submitted June 18, 1941;
    decided October 9, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 540.)


text:
    In the Matter of the Accounting of National City Bank of New York et al., as Executors of H. Hardcastle Pennock, Deceased. Constance L. Pennock et al., Infants, Appellants; Carol H. Pennock et al., Respondents.
    Submitted July 29, 1941;
    decided October 9, 1941.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 475.)


text:
    Charles Goell, Appellant, Impleaded with Another, v. United States Life Insurance Company in the City of New York, Respondent.
    Submitted July 29, 1941;
    decided October 9, 1941.

      Jerome M. Schwartz, William Bosmarin and Seymour Weil for motion.

      Stewart Maurice opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    Paul H. Wendel, Appellant, v. Harold G. Hoffman, Respondent, Impleaded with Others.
    Submitted July 29, 1941;
    decided October 9, 1941.

      Myron J. Greene for motion.

      Nathan Goldman and Thomas L. Zimmerman, Jr., opposed.
   Motion granted and appeal dismissed, with costs and ten. dollars costs of motion, on the ground the judgment is not a final determination of the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Riverdale Cemetery Association of Niagara Falls et al., Appellants.
    Submitted July 29, 1941;
    decided October 9, 1941.

      Everett M. Barlow and Clark H. Hammond for motion.

      John J. Bennett, Jr., Attorney-General (James P. Cotter of counsel), opposed.
   Motion dismissed on the ground that the order does not finally determine the action.


text:
    The People of the State of New York, Respondent, v. Vincent Mummiani, Appellant; The People of the State of New York ex rel. Vincent Mummiani, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Vincent Mummiani, in person, for motions.

      John J. Bennett, Jr., Attorney-General (James A. Noonan of counsel), opposed.
   Motions denied on the ground that it does not appear that an appeal lies to this court. „


text:
    The People of the State of New York ex rel. James U. Yager, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.

      James U. Yager, in person, for motion.
    No one opposed.
   Motion denied on the ground that it does not appear that any appeal lies to this court.


text:
    No. 37 and No. 39 Attorney St., Inc., Appellant, v. Julius Kirshbaum, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Hiram S. Gans for motion.

      Arthur M. Becker, opposed.
   Motion granted and appeal dismissed.


text:
    Hameline Co., Inc., Respondent, v. Andrew Weston Construction Corporation, Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.

      J. Walter Augar and Bartle Gorman for motion.

      Livingston S. Latham, opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements. The order of the Appellate Division is not in the record. If it is final, the plaintiff may appeal as of right. If it is not final, leave to appeal may not be granted.


text:
    In the Matter of George H. Ittleman et al., as Executors of Lena Ittleman, Deceased, et al., Appellants and Respondents. City of New York, Respondent and Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 150.)


text:
    Starling Realty Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 25342.)
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument or to amend the remittitur denied. (See 286 N. Y. 272.)


text:
    Ruth B. Viall, Respondent, v. Leland S. Viall, Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, without costs. (See 286 N. Y. 638.)


text:
    Herman Kahlmeyer, Appellant, v. Green-Wood Cemetery, Respondent.
    Argued October 6, 1941;
    decided October 16, 1941.

      Henry Hill Anderson and J. Wesley Seward for motion.

      Joseph Henry Cohen and Henry Cohen opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    In the Matter of Paul Meyer, Appellant, against Sigismund S. Goldwater, as Commissioner of Hospitals of the City of New York, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. The court considered the finding of the Appellate Division that there was insufficient evidence to sustain either of the first two specifications, and upon that point the court was unanimous in sustaining the Appellate Division. (See 286 N. Y. 461.)


text:
    In the Matter of the Estate of William H. Dunn, Deceased. John E. Keenan, as Special Guardian of William H. Rossiter et al., Infants, Appellant; Union Trust Company of Rochester, as Executor of William H. Dunn, Deceased, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.

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


text:
    Hyman Rosen, Appellant, v. Equitable Paper Bag Co., Inc., Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.


text:
    In the Matter of the Claim of Ulysses Jenkins, against Dump Truck Service, Employer. State Insurance Fund, Insurance Carrier.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Ulysses Jenkins, in person, for motion.

      William F. O’Rourke opposed.
   Motion dismissed on the ground that no appeal has been taken to the Appellate Division.


text:
    Fred Lapp, Appellant, v. Cora Lapp, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied. (See 286 N. Y. 252.)


text:
    Schenectady Trust Company, as Trustee, Respondent, v. Nathaniel D. Emmons, Appellant, and Security First National Bank of Los Angeles, as Executor of George E. Emmons, Deceased, et al., Respondents, Impleaded with Others.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 626.)


text:
    Josephine Parkas, Appellant, v. Peter Parkas, Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied. (See 285 N. Y. 155.)


text:
    Wise & Co., Inc., Appellant, v. Wecoline Products, Inc., Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 365.)


text:
    The People of the State of New York, Respondent, v. George Truehart, Eli Truehart and John Horton, Appellants.
    Argued October 6, 1941;
    decided October 16, 1941.

      James Gibson, Jr., District Attorney (John H. Dewell of counsel), for motion.

      Frank C. Briggs opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of Jacob Marks, Respondent, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate and Apportionment of the City of New York, Appellants.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 625.)


text:
    Ernest Howell, as Administrator of the Estate of Annie E. Howell, Deceased, Respondent, v. John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 179.)


text:
    Berta Walz, Appellant, v. Paul Helfer, Inc., Respondent.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 408.)


text:
    Carrie B. Calkins, Appellant and Respondent, v. John W. Becker, Defendant, and C. E. Rogers et al., Respondents and Appellants.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 408.)


text:
    Abraham M. Katz, Appellant, v. Capri Frocks, Inc., et al., Respondents.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Jay A. Gilman for motion.

      Orison S. Marden opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the motion was not made within the time permitted by the Civil Practice Act.


text:
    John B. Chinnery et al., as Trustees of William Kennedy Construction Company, Inc., Respondents, v. Kennosset Realty Co., Inc., Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 167.)


text:
    In the Matter of the Estate of Jacob Selig, Deceased. Harriette Selig, Appellant; Max L. Schallek et al., Individually and as Executors of Jacob Selig, Deceased, Respondents.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Samuel Strasbowrger for motion.

      Oscar Levine opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days from the date of this order the appellant files and serves an undertaking pursuant to section 593 of the Civil Practice Act and transmits "to this court the papers required to be transmitted by section 577 of the Civil Practice Act, in which event the motion is denied. The appeal in this case is from the order entered in the office of the Clerk of the Appellate Division (Matter of Westberg, 279 N. Y. 316).


text:
    Kurt Issem, an Infant, by Gustov Issem, His Guardian ad Litem, Appellant, v. Cornelius Slater, Respondent, Impleaded with Another.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Jesse Glattel for motion.

      Arthur C. Goldberg and Roy P. Monahan opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Joseph S. Sterling et al., Respondents, v. New York State Electric and Gas Corporation et al., Appellants.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Patrick J. Tierney for motion.

      Wallace E. Pierce opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the judgment is not a final determination of the action within the meaning of the Constitution..


text:
    In the Matter of Henry G. Bacon, Appellant, against Irving V. A. Huie, as Acting Commissioner of the Department of Public Works of the City of New York, et al., Respondents.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Morris Pinsky, Emanuel Goodman and S. M. Sprafkin for motion.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for respondents.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground the appeal lies as of right.


text:
    Daniel O. Hastings, as Trustee of Standard Gas and Electric Company, Appellant, v. H. M. Byllesby and Company et al., Defendants, and Walter T. Rosen et al., Copartners under the Firm Name of Ladenburg, Thalmann & Co., et al., Respondents.
    Submitted. October 6, 1941;
    decided October 16, 1941.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. The only question presented upon this appeal was the correctness of the order granting the motion to dismiss under rule 106 of the Rules of Civil Practice. ■ (See 286 N. Y. 468.)


text:
    Mae Q. Probst, Respondent, v. Frederick S. Probst, Appellant.
    (Appeal No. 1.)
    Argued October 6, 1941;
    decided October 16, 1941.

      Robert J. Bell for motion.

      S. Stanley Kreutser opposed.
   Motion denied.


text:
    The People of the State of New York, Respondent, v. Charles E. Cox, Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied. (See 286 N. Y. 137.)


text:
    In the Matter of the Claim of Ragnhild Christiansen, Respondent, against Hill Reproduction Company et al., Appellants.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Charles J. Nehrbas for motion.

      Frank L. Ward opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of John A. Meenagh et al., Respondents, Impleaded with Others, against Thomas E. Dewey, as District Attorney of the County of New York, Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 292.)


text:
    Walker Memorial Baptist Church, Inc., Respondent, v. John W. Saunders et al., Appellants.
    Submitted October 6, 1941;
    decided October 16, 1941.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 462.)


text:
    In the Matter of the Accounting of Anna M. Volk, as Administratrix of the Estate of William F. Pappalau, Deceased, Respondent. Harry Pappalau, Appellant.
    Submitted October 6, 1941;
    decided October 16, 1941.

      George W. Foy for motion.

      Borden H. Mills opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless the appeal is perfected within ten days, in which event the motion is denied.


text:
    Hygall Clothing Company, Respondent, v. Harry Katz’s Clothes, Inc., et al., Appellants, Impleaded with Another.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Archibald Palmer for motion.

      Max Shlivek opposed.
   Motion granted and upon reargument the motion for leave to appeal is denied on the merits.


text:
    Lawrence Tripaldi, an Infant, by James Tripaldi, His Guardian ad Litem, Appellant, Impleaded with Another, v. Antonio Senno et al., Respondents.
    Submitted October 6, 1941;
    decided October 16, 1941.

      Michael C. Bernstein for motion.

      Alexander E. Rosenthal opposed.
   Motion denied on the ground that the court has no power to cancel the bond, but without prejudice to an application to prosecute the appeal without filing printed records.


text:
    In the Matter of Harry P. Keith, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 17, 1941;
    decided October 21, 1941.

      Irving Lemov for appellant.

      William C. Chanler, Corporation Counsel (David DuVivier and Paxton Blair of counsel), for the Board of Elections of the City of New York, respondents.

      John F. Harding and Daniel V. McNamee, Jr., for Daniel E. Fitzpatrick, intervening respondent.

      Joseph Lonardo and E. F. W. Wildermuth for Nicholas M. Pette, intervening respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of John O’Rourke, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 17, 1941;
    decided October 21, 1941.

      Samuel D. Lasky for appellant.

      Benjamin J. Jacobson, Henry J. Grassotti and Sydney Rosenthal for Mario J. Cariello, intervening respondent.

      William C. Chanter, Corporation Counsel (David DuVivier and Paxton Blair of counsel), for Board of Elections of City of New York, respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Frank Scheiner, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 17, 1941;
    decided October 21, 1941.

      Morris Pottish for appellant.

      William C. Chanler, Corporation Counsel (David DuVivier, Paxton Blair and Thomas W. A. Crowe of counsel), for Board of Elections, respondent.

      J. Irwin Shapiro and Charles P. Sullivan (in person), for Charles P. Sullivan, intervening respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Philip M. Smith, Appellant, against Leslie E. Briggs, Respondent.
    Argued October 21, 1941;
    decided October 22, 1941.

      Philip M. Smith, appellant, in person.

      Leslie E. Briggs, respondent, in person.
   Order of the Appellate Division reversed and order of the Special Term affirmed in so far as it declares Philip M. Smith to be the nominee for said office by said party. We hold that ballots with exhibit numbers 13, 66 and 183 are blank as to the office of District Attorney. We hold that ballots with exhibit numbers 29, 32, 41, 100 and 122 are void. In other respects we agree with the findings of the Appellate Division. Accordingly we find that Philip M. Smith received 1,477 votes and Leslie E. Briggs 1,476 votes. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Accounting of Westchester Trust Company, as Substituted Trustee under the Will of Abijah Curtiss, Deceased, Appellant and Respondent. Kate C. Sanford et al., Respondents and Appellants.
    Argued May 23, 1941;
    decided October 23, 1941.

      Edmond M. Hanrahan, William H. Coogan and Gerald Donovan for petitioner, appellant and respondent.

      W. Chantler Arbuckle for Kate C. Sanford et al., respondents and appellants.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Accounting of Westchester Trust Company, as Substituted Trustee under the Will of Abijah Curtiss, Deceased, Appellant and Respondent. Frederic H. Curtiss et al., Respondents and Appellants.
    Argued May 23, 1941;
    decided October 23, 1941.

      Edmond M. Hanrahan, William, H. Coogan and Gerald Donovan for petitioner, appellant and respondent.

      W. Chantler Arbuckle for Frederic H. Curtiss et al., respondents and appellants.

      Paul L. Bleakley, special guardian, and W. Chantler Arbuckle for Robert and Curtiss Dietrich, respondents and appellants.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Accounting of Westchester Trust Company, as Substituted Trustee under the Will of Abijah Curtiss, Deceased, Appellant and Respondent. Frank M. Curtiss et al., Respondents and Appellants.
    Argued May 23, 1941;
    decided October 23, 1941.

      Edmond M. Hanrahan, William H. Coogan and Gerald Donovan for . petitioner, appellant and respondent.

      W. Chantler Arbuckle for Frank M. Curtiss, respondent and appellant.

      Paul L. Bleakley, special guardian, and W. Chantler Arbuckle for Sydney Curtiss, respondent and appellant.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Wolcott Cook et al., Respondents, v. Laura M. Gill et al., Individually and as Executors of Frank B. Gill, Deceased, Appellants.
    Submitted June 18, 1941;
    decided October 23, 1941.
   Motion for leave to amend return on appeal so as to include the judgment of affirmance entered upon the order of the Appellate Division, third department, in the Madison County Clerk’s office on August 17, 1940, denied without prejudice to a motion for reargument of the main appeal upon a complete record. The appeal having been dismissed, we have no jurisdiction to grant the present motion to amend the record. (See 285 N. Y. 780.)


text:
    Rebecca Cantor, an Infant, by Sadie Cantor, Her Guardian ad Litem, Respondent, v. Otto M. Radin, Appellant, Impleaded with Others.
    Argued October 6, 1941;
    decided October 23, 1941.

      Paul Arnold for motion.

      Archibald Palmer opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Lois Norton, as Administratrix of the Estate of Lina Garnsey, Deceased, Appellant, v. Phillips Petroleum Company et al., Respondents.
    Submitted October 13, 1941;
    decided October 23, 1941.

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


text:
    In the Matter of the Accounting of Irving Trust Company et al., as Trustees under the Will of Joseph Battell, Deceased. Rosa E. Tuttle, Appellant; Winifred M. Sheldon, as Executrix of Robert T. Sheldon, Deceased, et al., Respondents.
    Submitted October 6, 1941;
    decided October 23, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 97.)


text:
    In the Matter of John J. Finn, Appellant. Westchester County Bar Association et al., Respondents.
    Submitted October 13, 1941;
    decided October 23, 1941.
   Motion for reargument denied. (See 286 N. Y. 464.)


text:
    Charles E. Denney et al., as Trustees of Erie Railroad Company, Appellants, v. Mary C. Malone, as Administratrix of the Estate of P. W. Graham, Deceased, et al., Defendants, and Buffalo Sewer Authority, Respondent.
    Submitted October 13, 1941;
    decided October 23, 1941.

      Leonard W. M. Zingler and William G. Conable for motion.

      Edward-J. Sullivan, Corporation Counsel (Elmer S. Stengel of counsel), opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that an appeal lies as of right because a constitutional question is directly involved.


text:
    The People of the State of New York, Respondent, v. Vincent Mummiani, Appellant.
    Submitted October 13, 1941;
    decided October 23, 1941.

      Thomas E. Dewey, District Attorney (Harris B. Steinberg of counsel), for motion.

      Vincent Mummiani, in person, opposed.
   Motion granted and appeal dismissed.


text:
    Benjamin Bazinsky, Doing Business under the Name of Oxford Garage, et al., Appellants, v. Kesbec, Inc., Respondent.
    Submitted October 20, 1941;
    decided October 23, 1941.
   Motion to amend remittitur granted to the following extent: Return of remittitur requested and when returned it will be amended by providing that the judgment is affirmed “ without costs ” instead of with costs.” (See 286 N. Y. 655.)


text:
    In the Matter of the Accounting of Clarence W. McKay, as Executor of Julia E. T. Newton, Deceased, Appellant. People’s Rescue Mission et al., Respondents.
    Submitted October 20, 1941;
    decided October 23, 1941.

      Clarence W. McKay, in person, for motion.

      Joseph L. Humphrey and F. C. Goodwin, T. Carl Nixon, T. J. Hargrave, E. W. Middleton and F. E. Devans opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of Joseph A. Palma, Appellant and Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondent. Bertram G. Eadie, Respondent and Appellant.
    Argued October 23, 1941;
    decided October 24, 1941.

      Herman Methfessel for Joseph A. Palma, appellant and respondent'.

      W. A. Smith for Bertram G. Eadie, respondent and appellant.

      William C. Chanler, Corporation Counsel, for Board of Elections of City of New York, respondent.
   Order affirmed, without costs. While we differ from the Appellate Division in respect of its rulings upon some ballots, none the less we find 9,736 valid votes for Eadie and 9,722 valid votes for Palma. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Frank Kennedy, Appellant, against Ernest F. Eilert et al., Constituting the Board of Elections of the County of Westchester, et al., Respondents.
    Argued October 23, 1941;
    decided October 24, 1941.

      Hannibal M. Fiore and Edward M. Acton for appellants.

      William A.' Davidson, County Attorney, for Board of Elections, respondent.

      Walter W. Westall for Harold W. Davis et al., respondents.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Edward A. Zraick et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 24, 1941;
    decided October 24, 1941.

      Louis A. Tepper for appellants.

      A. David Benjamin, Charles H. Kelby and Harry Zankel for Benjamin Brenner, respondent.

      William C. Chanler, Corporation Counsel, for Board of Elections, respondent.
   Order affirmed, without costs, on the ground that the question argued cannot be raised in this proceeding. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Joseph Dermody et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Defendants. Louis J. Hollander et al., Respondents.
    Submitted October 24, 1941
    decided October 24, 1941.

      Victor Rabinowitz for appellants.

      Israel Convisser for respondents.
   Appeal dismissed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Louis P. Goldberg et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents.
    Argued October 30, 1941;
    decided October 30, 1941.

      Israel Convisser for appellants.

      William C. Chanler, Corporation Counsel (Oscar L. Tucker of counsel), for respondents,
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of William J. Goodwin, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 30, 1941;
    decided October 30, 1941.

      Bernard D’Arcy and Raymond Reran O’Brien for appellant.

      Milton H. Friedman and Michael A. Castaldi for Harold Haynes, respondent.

      William C. Chanler, Corporation Counsel (Seymour B. Quel of counsel), for Board of Elections, respondent.
   Order affirmed, without costs. The record presents at most a question of fact which we have no power to consider. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


author: Lehman, Ch. J.

text:
    In the Matter of Francis M. Bacon et al., Copartners under the Firm Name of Bacon, Stevenson & Co., et al., Respondents. Susquehanna Silk Mills, Appellant.

      Argued October 6, 1941;
    decided November 19, 1941.

      Robert Nias West, Gilbert Kerlin and Alfred Ogden for appellant.
    The petitioners are not stockholders. They have no rights under sections 20 and 21 of the Stock Corporation Law (Cons. Laws, ch. 59). (Babcock v. Chicago Rys. Co., 325 Ill. 16; Matter of Morse [Bank of America], 247 N. Y. 290; Skinner v. Home Bank of Brooklyn, 190 App. Div. 187; 230 N. Y. 631; Western R. R. Co. v. Nolan, 48 N. Y. 513; Robinson v. Adams, 81 App. Div. 20; 179 N. Y. 558; Woolf v. Barnes, 46 Misc. Rep. 169; Kissel v. Chicago & Eastern Illinois R. R. Co., 126 App. Div. 852; Pflug v. Dietz, 260 App. Div. 503; Harris Trust & Savings Bank v. Chicago Rys. Co., 23 Fed. Rep. [2d] 192.) Petitioners may not repudiate their agreement to be bound by the action taken by a majority in interest of the voting trust certificate holders. (Babcock v. Chicago Rys. Co., 325 Ill. 16.)

      Samuel J. Levinson, Frank Weinstein and Samuel Kalmanash for respondents.
    Stockholders who deposit their stock with trustees under a voting trust agreement retain their status as stockholders under sections 20 and 21 of the Stock Corporation Law for the purpose of objecting to a bulk sale of the corporation’s assets and demanding and receiving payment of the appraised value of their stock. (Rosevelt v. Brown, 11 N. Y. 148; Broderick v. Aaron [Kornberg], 268 N. Y. 260; Lloyd v. Preston, 146 U. S. 630; U. S. Radiator Corp. v. State, 208 N. Y. 144; Flour City Nat. Bank v. Shire, 88 App. Div. 401; 179 N. Y. 587; Wheeler v. Millar, 90 N. Y. 354; Eisner v. Macomber, 252 U. S. 189; Gibson v. Oswalt, 269 Mich. 300; Matter of Morse [Bank of America], 247 N. Y. 290; Matter of Timmis, 200 N. Y. 177; Voeller v. Neilston Warehouse Co., 311 U. S. 531; Kittinger v. Churchill Evangelistic Assn., 239 App. Div. 253.)
   Lehman, Ch. J.

In proceedings under section 77B of the Bankruptcy Act (48 U. S. Stat. 912), a plan for the reorganization of Susquehanna Silk Mills, a corporation organized under the laws of the State of New York, was confirmed by the District Court of the United States by an order dated February 19, 1936. All the stock of the corporation issued pursuant to the plan of reorganization has been issued to voting trustees named in a voting trust agreement dated “ as of March 16, 1936,” which, by its terms, would expire on March 16, 1941. The plan of reorganization required that the stock should be so issued. The petitioners hold voting trust certificates issued by the voting trustees for about eight per cent of the corporate stock. The voting trustees are the holders of record of all the shares of stock of the corporation including the shares for which the petitioners hold voting stock certificates.

On February 19, 1941, the voting trustees, at a special meeting of the stockholders of the corporation, voted all the issued and outstanding stock of the corporation in favor of a sale and conveyance of the assets of the corporation, the liquidation of the corporation and the distribution of the proceeds of t,he sale after the sale was confirmed. At all times the petitioners have objected to any sale of the assets of the corporation and they have tried unsuccessfully to prevent the trustees from voting the shares, in which these petitioners have a beneficial interest, in favor of the proposed sale. Upon their petition appraisers have been appointed to appraise the value of their stock in accordance with the provisions of section 21 of the Stock Corporation Law (Cons. Laws, ch. 59).

Section 20 of the Stock Corporation Law sanctions the voluntary sale of corporate assets and the voluntary termination of the corporate existence provided consent is given by the stockholders in manner there provided. Until the Legislature gave its sanction to such a sale this court by its decisions had “ established the law that a corporation cannot sell all its property, or even a part thereof so integral as to be essential for the transaction of its ordinary business, because such a sale is wholly or partly an act of self-destruction and a practical dissolution without compliance with law.” (Matter of Timmis, 200 N. Y. 177, 181.) Though the Legislature, in section 20 of the Stock Corporation Law, has conferred upon holders of record of two-thirds of [the] outstanding shares entitled to vote thereon ” of a corporation, the power which they would not otherwise have possessed, to sell the assets and thus to terminate the life of a corporation, it has at the same time provided that a stockholder who makes timely objection to such sale and does not vote his stock in its favor may demand payment by the corporation of the value of his stock as appraised by appraisers appointed by the court. The corporation in this case challenges the right of a holder of a voting trust certificate to claim the benefit of the statute after the voting trustees had voted the stock deposited with them in favor of such sale.

A voting trust creates a “ separation of the voting power from the beneficial ownership of stock.”. The State may regulate such separation by exercise of the police power. (Matter of Morse, 247 N. Y. 290, 303.) By section 50 of the Stock Corporation Law the State has expressly permitted such separation. The voting trustees become the holders of record of the stock deposited in accordance with a voting trust agreement. A stockholder who deposits his stock parts with the right to vote, but he retains the beneficial ownership of the stock. Thereafter, neither the holders of voting trust certificates nor the voting trustees possess all the rights of stockholders. Each group are stockholders ” for some purposes — neither group for all purposes.

In the provisions of the Stock Corporation Law regulating the voluntary sale of the franchise or property of a corporation, the Legislature has recognized this duality of ownership. Only those holders of record of shares who are entitled to vote thereon ” can give consent to a sale of the corporate assets. (§ 20.) Again, in section 45 of the statute, notice of the meeting at which the vote is taken must be given both to each stockholder of record entitled to vote at such meeting, and to any stockholder who, by reason of any action proposed at such meeting, would be entitled to have his stock appraised if such action were taken.”

In final analysis the decisive question in this case is whether the depositor of stock under the voting trust agreement has authorized the voting trustees to vote his stock and thereby to give consent in his behalf to the proposed sale. If the holders of voting trust certificates have authorized the voting trustees to give such consent then they cannot claim any rights accorded by the Legislature to owners of stock who have not consented. If they have not authorized the voting trustees to give such consent the fact that the trustees are the owners of record would not bar the petitioners from the rights accorded to protesting stockholders who have not voted in favor of the sale. The voting trust agreement must be filed in the office of the corporation and the corporation has notice of its terms and the extent of the powers conferred upon the trustees.

We assume, but only for the purposes of this appeal, that under the statute the voting trust agreement could contain provisions authorizing the voting trustees to consent to the destruction of the corporation and of the rights of its stockholders. The power to destroy stock would not, however, be implied merely from a power to vote the stock. Only by the use of clear language can such an extraordinary power be conferred.

The voting trust agreement in this case grants powers in broad language: “ During the term of this Agreement, the Trustees shall possess the legal title to, and shall possess and be entitled to exercise all rights of stockholders of every name and nature, including the right to vote or give any consent in respect of any and all such shares of the Capital Stock of the Company as may be deposited with them; provided, however, that at the expiration of three years from March 16, 1936, the Trustees shall call a meeting of the holders of Voting Trust Certificates ,at which meeting such holders in person or by proxy shall be entitled to vote on whether or not the business of the Company shall be liquidated in whole or in part.”

The broad language of that provision should not be construed, however, to include power to consent to the destruction of the stock deposited under the agreement. Possible doubt, whether “ the right to vote or give any consent in respect of any and all ” the shares deposited excludes power to consent to a dissolution of the corporation disappears when that power is read with the condition or proviso that at the expiration of three years a meeting must be called at which the holders of the voting trust certificates should vote whether or nor the business should be liquidated in whole or in part. Such a meeting was called and the stockholders voted against dissolution. An intention to give the voting trustees the power to consent to dissolution of the corporation after the holders of the voting trust certificates had voted against dissolution cannot reasonably be read into the agreement.

It does not follow that the vote which the trustees cast for the sale can be challenged by stockholders who failed to make timely objection, for in this case such failure would be equivalent to a consent or instruction by non-objecting stockholders to vote their stock in favor of the sale of the corporate assets.

The voting trust agreement in this case contains the provision: “ The Trustees, in their discretion, shall also be entitled to instructions with respect to voting the shares of stock held by them hereunder, for any and all purposes, except with respect to the voting of such shares for the election and/or removal of directors of the Company and may (but shall not be obligated to) call a meeting of the holders of Voting Trust Certificates, in the manner specified in this Article Ninth, for the purpose of obtaining such instructions; and, except as otherwise provided in this Article Ninth, the vote of the holders of a majority in interest of Voting Trust Certificates,. in person or by proxy, irrespective of class, with respect to any matters upon which the Trustees shall desire instructions, shall constitute the instructions upon which the Trustees shall act.”

Pursuant to that provision the trustees did call a meeting for the purpose of obtaining instructions from the holders of voting trust certificates. Prior to the meeting the trustees sent to each certificate holder information in writing concerning the offer for the purchase of the assets of the corporation and each certificate holder had notice that the trustees would vote the stock standing in their name in accordance with the instructions given by majority vote at the meeting. The petitioners appeared by attorney and challenged the power of the trustees to vote the stock of stockholders who did not assent and objected to the proposal for purchase and sale of the corporate assets. An overwhelming majority of the certificate holders voted in favor of accepting the offer.

A vote by a certificate holder instructing the trustees to vote his stock is obviously a grant of authority even though previously no authority' had been granted. Even where no affirmative vote was cast by the holder of a voting trust certificate, but no objection made, the voting trustees might properly assume that the stockholder authorized them to vote his stock in accordance with their own discretion. There would be a duty to speak where the stockholder was apprised by the voting trustees that the voting trustees would assume from silence that the depositing stockholders agreed with their construction that the voting trust agreement conferred upon the trustees authority to vote the deposited stock.

The order should be affirmed, with costs, and the certified questions answered in the affirmative.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed, etc.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v Joseph Moshell, Appellant.
    Argued October 13, 1941;
    decided November 19, 1941.

      Herman S. Falk, Vernon F. Murphy, Leo H. Klugherz and Richard Klugherz for appellant.

      Elbert T. Gallagher, District Attorney (Joseph F. Gagliardi and Samuel Y. Austin, Jr., of counsel), for respondent.
    No error was committed in admitting in evidence the record of testimony taken at the assault trial in Philadelphia. (Stokes v. People, 53 N. Y. 164; People v. Otto, 101 N. Y. 690; Hendrickson v. People, 10 N. Y. 13; People v. Soper, 243 N. Y. 320.)
   Per Curiam.

On this record it was proper to admit the testimony of the defendant’s daughter at the trial in Philadelphia upon the question of his motive, intent and state of mind. The testimony of the other witnesses on that trial was not admissible, but in this instance was helpful rather than haimful to the defendant.

The judgment of conviction should be affirmed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment of conviction affirmed.


text:
    Sarah A. Wheeler, Appellant, v. Woodside Residences, Inc., et al., Respondents.
    Argued October 6, 1941;
    decided November 19, 1941.

      Richard J. Mackey for appellant.
    The action of the courts below improperly dismisses the plaintiff’s complaint without giving her an opportunity to present her allegations and violates her right to due process of law under the Constitution. (Partridge v. Fidelity & Casualty Co., 213 App. Div. 8; Gambold v. MacLean, 126 Misc. Rep. 820; Home Indemnity Co. v. Filyork Holding Corp., 258 App. Div. 962; 283 N. Y. 728.)

      Harold I. Cammer and. D. William Leider for Woodside Residences, Inc., respondent.
    The judgments in the earlier actions are a bar to the present suit. (City of New Rochelle v. Seacord, 254 App. Div. 897; 281 N. Y. 621; Hoffman v. Manufacturers Trust Co., 252 App. Div. 495; Slote v. Cascade Holding Corp., 249 App. Div. 332; Allen v. United States Fire Ins. Co., 245 App. Div. 31; Werring v. Selig, 241 App. Div. 67; Gelston v. Codwise, 1 Johns. Ch. 189.) The order should be affirmed because it was in any event proper. (Gotham Construction Corp. v. City of New York, 233 App. Div. 699; Jacobs v. Jacobs, 252 App. Div. 794; Gleason v. Hamilton, 138 N. Y. 353; American Structural Steel Co. v. Rush, 107 N. Y. Supp. 3.)

      Charles L. Fleece for Nathan Wilson et al., respondents.

      Arthur J. O’Leary for Philip J. Dunn, respondent.
   Per Curiam.

Defendant Woodside Residences, Inc., moved to dismiss as to it, plaintiff’s first amended complaint, on the ground of insufficiency (Rules of Civil Practice, rule 106) and on the further ground that there was an existing final judgment of a competent court, rendered on the merits, determining the same cause of action between plaintiff and said defendant (Rules of Civil Practice, rule 107). The Special Term did not consider' this motion on its merits but, by the order of April 4, 1940, dismissed this first amended complaint as against defendant Woodside Residences, Inc., “ as if by default of the plaintiff * * * but without prejudice to an application by the plaintiff to Special Term for leave to serve an amended complaint after plaintiff has purged herself of the charge of contempt * * This order further directed the entry of judgment in favor of defendant Woodside Residences, Inc., dismissing the complaint, and judgment was so entered thereon two days later.

The ruling of Special Term that plaintiff was in default as to defendant Woodside Residences, Inc., was ba°ed on a previous determination made on motion of other defendants that plaintiff had been guilty of contempt in serving the first amended complaint while there was pending a stay of proceedings on plaintiff’s part, the stay being based on plaintiff’s failure to pay certain costs to those other defendants. Defendant Woodside Residences, Inc., did not join in that motion for a stay. This judgment of dismissal makes no mention of the provision in the order granting plaintiff leave to make application to serve another amended complaint if and when she should purge herself of contempt. Between the entry of the order and the entry of the judgment plaintiff paid certain costs to defendants other than defendant Woodside Residences, Inc., and moved for leave to serve a second amended complaint. Later plaintiff moved to vacate the judgment of dismissal. These motions came on together for hearing at Special Term and, again without any hearing as to the sufficiency of the proposed amended compiaint or as to defendant’s claim of res judicata, were denied “ in the exercise of the discretion of the court.”

Under these circumstances we must conclude that Special Term was in error when it treated the plaintiff as being in default as to defendant Woodside Residences, Inc., in granting the motion to dismiss without any consideration of its merits and in refusing to allow plaintiff her day in court as against defendant Woodside Residences, Inc.

The orders and judgments appealed from should be reversed and the matter remitted to Special Term, with costs in all courts to appellant to abide the event.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Pauline Shraeder, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued October 7, 1941;
    decided November 19, 1941.

      William C. Chanter, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for appellants.
    The petitioner’s appointment having been the direct result of her misstatement of a material fact on her application, the right to cancel her appointment survived the expiration of her probationary period. (Matter of Katz v. Goldwater, 285 N. Y. 830; Matter of Wolff v. Hodson, 285 N. Y. 197.)

      Ruth Gottdiener for respondent.
    Section 14 of the Civil Service Law (Cons. Laws, ch. 7) provides for the competitive class and limits the authority of the Commission with respect to eligibility after an appointment only to fraud. This section is to be strictly construed. (People v. Dalton, 163 N. Y. 556.)
   Per Curiam.

The Municipal Civil Service Commission has power and is under a duty to rescind a certification where an applicant has made a misstatement of a material fact upon which the Commission has relied and upon which it has based its conclusion that the applicant was eligible to take the examination. That is true whether the misstatement was made with fraudulent intent or by mistake.

The orders should be reversed and the petition dismissed, without costs. (See 287 N. Y. 760.)

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of Solomon Turel et al., Petitioners, and Isidore Mufsen, Respondent, against John H. Delaney et al., as Members of the Board of Transportation of the City of New York, Appellants, and Paul Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents, Impleaded with Others.
    Argued October 7, 1941;
    decided November 19, 1941.

      Paul L. Ross and Ralph R. Monroe for appellants.
    The court was without power to order the Board of Transportation forthwith to appoint eligidles from petitioners’ eligible list. (Judson v. City of Niagara Falls, 140 App. Div. 62; 204 N. Y. 630; Matter of Jaffe v. Board of Education, 265 N. Y. 160; Tonkin v. Leary, 234 App. Div. 448; 259 N. Y. 510; People ex rel. Tregaskis v. Palmer, 9 App. Div. 252; Matter of Morrison v. Cantor, 75 App. Div. 480; People ex rel. O’Donnell v. McClellan, 52 Misc. Rep. 609; People ex rel. Balcom v. Mosher, 163 N. Y. 32; Hurley v. Board of Education, 270 N. Y. 275; Matter of Cusack v. Board of Education, 174 N. Y. 136; Matter of Colligan v. Williams, 91 Misc. Rep. 128.)

      Albert B. Breslow for respondent.
   Per Curiam.

A court has no power to direct the Board of Transportation to appoint eligibles. That is a matter within its discretion which cannot be reviewed in this proceeding.

The orders should be modified in accordance with this memorandum and, as so modified, affirmed, without costs to either party.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Loughran, J.

text:
    Michael Katapodis et al., Respondents, v. The Brooklyn Spectator, Inc., Appellant.
    Argued October 6, 1941;
    decided November 27, 1941.

      Charles Wilson and Edward H. Freiberger for appellant.
    The complaint is insufficient in law. (O’Connell v. Press Pub. Co., 214 N. Y. 352; Sydney v. MacFadden Newspaper

      Pub. Corp., 242 N. Y. 208; Kleeberg v. Sipser, 265 N. Y. 87; Kimmerle v. New York Evening Journal, Inc., 262 N. Y. 99; Moffatt v. Cauldwell, 3 Hun, 26; Martin v. Press Pub. Co., 93 App. Div. 531; Battersby v. Collier, 24 App. Div. 89; Metzger v. Washington Post, 40 App. [D. C.] 565; Birmingham v. Daily Mirror, Inc., 175 Misc. Rep. 372; 261 App. Div. 838; Hays v. American Defense Society, 252 N. Y. 266.)

      Edmund F. Lamb for respondents.
    The complaint properly states a cause of action as the publication was libelous per si. (Morey v. Morning Journal Assn., 123 N. Y. 207; Bennet v. Commercial Advertiser Assn., 230 N. Y. 125; Sydney v. MacFadden Newspaper Pub. Corp., 242 N. Y. 208; Morrison v. Smith, 177 N. Y. 366; Martin v. Press Pub. Co., 93 App. Div. 531; Cohen v. N. Y. Times Co., 153 App. Div. 242; Gates v. New York Recorder Co., 155 N. Y. 228; Kimmerle v. New York Evening Journal, Inc., 262 N. Y. 99; Moffatt v. Cauldwell,, 3 Hun, 26; Moore v. Francis, 121 N. Y. 199.)
   Loughran, J.

Whether the complaint in this action states facts sufficient to constitute a cause of action for libel is the issue to be determined.

After reciting that the plaintiffs are residents of the borough of Brooklyn, city of New York, and that the defendant publishes a newspaper in that borough, the complaint goes on to allege:

“ 4. That on the 4th day of October, 1940, the defendant composed for publication and published concerning the plaintiffs in the said newspaper, a certain article containing the false and defamatory matter following, to wit:

“ 1 PAUPER’S GRAVE FOR POOR CHILD

“ 1 By Buster Schneider

Unless financial aid is forthcoming immediately, the body of a 4-year old boy, who was run over Tuesday will be interred in Potter’s Field, burying ground of the homeless, friendless and penniless, who die or are killed in N. Y. C. The parents of this youngster are in dire financial straits, and at this writing have no alternative but to let their son go to his final rest in a pauper’s grave.

“ ' Tuesday morning, a truck, operated by John Queeno, 34, of 144 Bay 50th St. ran over the child while he was riding his tricycle on 101st St. and Jackson Ct., which is a street under construction.

“ ‘ Detective Angelo Ruocco arrested Queeno who was held in $1,000 bail by Judge Masterson, Wednesday for a hearing on Oct. 10.’

“5. That the child referred to in the aforesaid publication was the infant son of the plaintiffs herein.

“6. That the matters stated in said publication as to the financial condition of the plaintiffs were wholly false.”

We take the foregoing allegations to say that the only part of the article that was true was the statement that the child of the plaintiffs had been killed in the circumstances therein set forth. No innuendo is pleaded. Hence the question is: Are the false words of the publication on the face of them reasonably capable of a defamatory meaning? If so, the colloquium is sufficient. (Corr v. Sun Printing & Publishing Assn., 177 N. Y. 131, 135; Rules of Civil Practice, rule 96.)

Defendant’s argument is that the false words imputed to the plaintiffs nothing but poverty and that such an imputation could not without more expose the plaintiffs to ridicule. From that point of view the question of law is restated in this single sentence: Without a suggestion in the article to the discredit of the plaintiffs, how could any just and right-thinking reader entertain any feeling except sympathy for them? But this is a full solution of the case only if the law is that a written publication can never be a libel when its only effect is to make a person an object of pity. We are not apprised of any case in this court in which that matter has been examined upon principle.

In Moffatt v. Cauldwell (3 Hun, 26) a newspaper article which described the plaintiffs as relatives of wealthy persons, but as living in abject poverty, was held to be actionable. The court said: “As an abstract generality, it is true that mere poverty ought not to expose any citizen to ridicule. But the proposition that ridicule is a non sequitur from such an imputation, is not universally true. One may be so circumstanced, and the fact of his alleged misery may be so put, as to excite ridicule and nothing else. * * * It comes to this, that the question, whether or no the matter is libelous, so as to be actionable, depends upon the style, scope, spirit and motive of every such publication, taken in its entirety. The inquiry is, then, into the natural effect of the publication, not only upon the general public, but upon the neighbors and friends of the person aimed at.” (Per Barrett, J., pp. 29-30.) True, the court in the Moffatt case used the word “ ridicule.” None the less for that, however, the reasoning of Barrett, J., conveys the idea that the derogatory purport of the publication there in question was owing to its depiction of the plaintiffs as piteous creatures, and so the case has been understood. (Townshend on Slander and Libel [4th ed.], p. 220.)

Likewise, it has been said that a document which imputed insanity to a party was a “ ridiculing writing,” though such an imputation is far more likely to arouse sympathy and pity than to expose a man to hatred, ridicule or contempt. (Perkins v. Mitchell, 31 Barb. 461, 465. See Moore v. Francis, 121 N. Y. 199, 205, 206; Gatley on Libel and Slander [3rd ed.], p. 14.) Again, in Youssoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd. (50 T. L. R. 581), it was held that a talking cinematograph film which said of a woman that she had been raped was a libel upon her. It is reasonably clear, therefore, that in some cases it may be a libel if the plaintiff has been written up as an object of pity. (See Salmond on Torts [9th ed.], p. 399.) The reason is that in libel the matter is defamatory not only if it brings a party into hatred, ridicule or contempt by asserting some moral discredit upon bis part, but also if it tends to make him be shunned or avoided, although it imputes no moral turpitude to him. (See the Youssoupoff case, supra, at p. 583. Cf. Shelby v. Sun Printing & Publishing Assn., 38 Hun, 474; 109 N. Y. 611; Kimmerle v. New York Evening Journal, Inc., 262 N. Y. 99.)

There remains the inquiry whether, admitting this principle, the present case is within it. The manner in which the defendant set out the state of these plaintiffs is a significant fact. (Moffatt v. Cauldwell, supra.) The false words portrayed them as being steeped in poverty to the very Ups. We think it is not for us to say that the publication of such a piece of news did not hurt the plaintiffs by tending to deprive them of friendly association with a considerable number of respectable members of their community. We beheve it is the right of the plaintiffs to have a jury say whether the false words did, in fact, so defame them. (See Peck v. Tribune Co., 214 U. S. 185; Martin v. Press Publishing Co., 93 App. Div. 531.)

The order should be affirmed, with costs, and the question certified answered in the affirmative.

Finch, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., dissents.

Order affirmed, etc.


author: Finch, J.

text:
    Betty L. Schmelzel, Respondent, v. Clarence Schmelzel, Appellant.
    (Appeal No. 1.)

      Argued October 7, 1941;
    decided November 27, 1941.

      J. Fearon Brown for appellant.
    The final judgment in the action did not terminate the separation agreement. (Goldman v. Goldman, 282 N. Y. 296.) The judgment expressly confirmed the separation agreement and the only legal effect of the judgment was to make the statutory remedies of enforcement available to the wife. (Wimpfheimer v. Wimpfheimer, 262 App. Div. 304.) Only a mutual act of the parties based upon mutual intention, or impeachment for some cause recognized by law, could terminate the separation agreement. (Goldman v. Goldman, 282 N. Y. 296; Galusha v. Galusha, 116 N. Y. 635; 138 N. Y. 272.) There is no basis for holding that the defendant had abandoned the agreement or that he had acquiesced in the plaintiff’s attempt to repudiate it. (Woods v. Bard, 285 N. Y. 11.)

      Sidney M. Wittner for respondent.
    The separation agreement was breached and terminated by both parties. Hence the court had the power to fix' alimony. But, in any event, the court had the power to modify its own decree and to increase the alimony for inadequacy. (Faye v. Faye, 226 N. Y. Supp. 793; Levy v. Levy, 133 N. Y. Supp. 1084; Kunker v. Kunker, 230 App. Div. 641; Staehr v. Staehr, 237 App. Div. 843; Schnitser v. Buerger, 237 App. Div. 622; Goldman v. Goldman, 282 N. Y. 296; Worthington v. Worthington, 224 Ala, 237; O’Brien v. O’Brien, 252 App. Div. 427; Pinkus v. Pinkus, 230 App. Div. 791; Breiterman v. Breiterman, 239 App. Div. 709; Rosenblatt v. Rosenblatt, 209 App. Div. 373; Powers v. Powers, 33 App. Div. 126; Benesch v. Benesch, 182 App. Div. 221; Braunworth v. Braunworth, 260 App. Div. 113; Fales v. Fales, 160 Misc. Rep. 799; 250 App. Div. 751; Tirrell v. Tirrell, 232 N. Y. 224.)
   Finch, J.

The question presented for determination upon this appeal concerns the validity of a separation agreement between the parties to a marriage. There is no issue of fraud or public interest involved.

The parties were married in 1921 and have no children. In 1937 they entered into a separation agreement, which provided for a separation and also provided that the husband would pay $250 a month for the support of the wife as well as a small cash payment and a transfer of certain real property to her. The agreement also contained a clause that the terms thereof should be incorporated in any judgment in any action between them wherein provision was made for the support of the wife. Thus the separation agreement expressly contemplated a suit for separation in the future. In the same year the wife brought such an action for a separation to be decreed by the court on the grounds of abandonment and cruel and inhuman treatment, and also that the separation agreement be set aside for the reason that it was obtained under fraud and duress. If the separation agreement were set aside, she further prayed that the court make proper provision for her support and for counsel fees. The defendant has duly performed all the terms of the separation agreement.

The trial justice entered a decree granting plaintiff her legal separation, found that the separation agreement was entered into by plaintiff after adequate representation by counsel and without any element of fraud or 'duress and ordered defendant to pay the sum of $250 a month as provided in the separation agreement, acquitted defendant from any liability for bills incurred by the wife since the date of said agreement, and ordered that, as long as defendant continued to make the monthly payment of $250, he should not be liable for any debts contracted by the wife. It was further ordered that the monthly payments made should be in lieu of any right of dower in any real estate which the husband might be seized subsequent to the date of the separation agreement, and that the parties should in all respects comply with all the provisions of the separation agreément. There has been no appeal taken from this judgment.

The financial situation of the defendant husband having improved, the plaintiff, on November 20, 1940, two and one-half years after the separation decree, made a motion in the action for an order to increase the alimony. (Civ. Prac. Act, § 1170.) Plaintiff also asked for counsel fees. This motion was granted, the alimony increased from $250 to $350 a month and $250 allowed for counsel fees. The learned justice at Special Term thus increased the alimony and awarded the counsel fee in disregard of the terms of the existing agreement, for the reason, as stated in his opinion, that Such increase appears to be justified by the change in the circumstances of the parties, and by defendant’s statements as to his income.” The Appellate Division unanimously affirmed the order of Special Term and the appeal is here by leave of this court.

A case is, therefore, presented where a valid existing agreement made after proper representation by counsel and without any element of fraud or duress is incorporated into a decree awarding plaintiff a legal separation and is confirmed in every respect. Moreover, no public interest is involved, and the court is not asked to disregard the agreement on the ground that the support provided for therein is inadequate and, therefore, the plaintiff may become a public charge. (See Kyff v. Kyff, 286 N. Y. 71.) Nevertheless, the agreement has been held abrogated and no longer binding.

The situation in the case at bar is not the same as that presented where the parties have voluntarily abandoned the separation agreement and by consent have invoked the power of the court to decide the issue of the amount of support wholly apart from the separation agreement. In such a case we have held that either the plaintiff or the defendant may invoke thereafter the power of the court conferred by statute (Civ. Prac. Act, § 1170) to modify its directions, for “ the effect of the statute is to write a reservation into every final judgment of divorce.” (Fox v. Fox, 263 N. Y. 68, 70.)

In the case at bar the final judgment of separation did not terminate the separation agreement, but as in the case of Goldman v. Goldman (282 N. Y. 296) the judgment entered incorporated the terms of the separation agreement, which included fixing the amount of alimony for the support of the wife. Such incorporation was made pursuant to an express provision of the separation agreement. In such event, as the court pointed out in the Goldman case, the direction of the court that the defendant shall pay to the plaintiff a sum less than he agreed to pay does not relieve the defendant of any contractual obligation ” and the plaintiff may still resort to the usual remedies for breach of a contractual obligation if there has been such a breach,” since so long as the contract remains unimpeached, the court will not compel the husband to pay to the wife for her support a sum greater than the wife agreed to accept, at least where such sum is not plainly insufficient.” (Goldman v. Goldman, supra, pp. 301, 305.) The decision in the Goldman case reaffirmed the rule as announced in the cases of Galusha v. Galusha (116 N. Y. 635; 138 N. Y. 272, 274) that a decree or a subsequent order in a matrimonial action does not destroy the agreement or deprive the parties of their rights thereunder.

In the action for separation in the case at bar the plaintiff prayed that the separation agreement be set aside on the ground that it was obtained under fraud and duress. The separation decree herein, however, adjudged that the separation agreement was entered into by plaintiff after proper and adequate representation by counsel and without any element of fraud or duress and expressly confirmed the separation agreement. As was pointed out in the Goldman, case, only a mutual act of the parties based upon mutual intention, or some other cause recognized by law, could terminate this valid separation agreement. “ Such agreements, lawful when made, will be enforced like other agreements unless impeached or challenged for some cause recognized by law. It is not in the power of either party acting alone and against the will of the other to destroy or change the agreement.” (Goldman v. Goldman, supra, p. 300; Galusha v. Galusha, 116 N. Y. 635; Galusha v. Galusha, 138 N. Y. 272.)

In the case at bar no evidence appears showing that the defendant has repudiated the agreement or in any way has acquiesced in the attempt of the plaintiff to repudiate the agreement. On the contrary, every act of the defendant shows reliance upon the separation agreement. Thus the defendant in his answer in the separation action pleaded the separation agreement and prayed for an affirmative judgment restraining the plaintiff from violating the terms and conditions of the separation agreement. Also, after the trial of the separation action, counsel for defendant drew and entered the decree which, as heretofore shown, expressly sustained the agreement rather than invalidated it, as prayed in plaintiff’s complaint.

The plaintiff argues upon this appeal that the failure of the defendant to appeal from this separation decree constituted an acquiescence by the defendant in the wife’s attempted repudiation of the agreement. The parties in making the agreement contemplated that the separation action would not constitute a violation of the agreement but that a legal decree of separation would not be inconsistent with the terms of the separation agreement. In such a case the amount of alimony to be paid for the support of the wife is just one of several issues presented for decision by the court. Thus, where the husband has succeeded in having the agreement incorporated into the decree, he is satisfied with the decision of the court upon that issue and has no reason for appeal.

It follows that in the case at bar, where it appears that the attempt by the plaintiff to have the separation agreement set aside on the ground of fraud or duress was unsuccessful after a trial in open court and where the court at Special Term has expressly sustained the separation agreement in all particulars, and where defendant is not in default under the agreement nor has he abandoned or acquiesced in any way in the efforts of plaintiff to repudiate the agreement, and no question of inadequacy arises, the separation agreement is in full force and effect and the plaintiff cannot increase the amount of alimony therein provided or receive counsel fees.

The orders should be reversed and the motion of plaintiff for increased alimony and counsel fees denied, without costs.

Lehman, Ch. J., Rippey, Lewis, Conway and Desmond, JJ., concur; Loughran, J., dissents.

Orders reversed, etc.


text:
    In the Matter of S. Bernard Ross, Appellant, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate of the City of New York, Respondents. In the Matter of Samuel A. Lewin et al., Appellants, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate of the City of New York, Respondents.
    Argued October 7, 1941;
    decided November 27, 1941.

      Alfred L. Becker, Harry G. Goldman and Irving I. Schachtel for S. Bernard Ross, appellant.
    The action complained of was so subversive of the merit system as to violate not only the statutes and rules but the constitutional provision itself by setting at naught the whole system of tenure, grades and promotions. (Matter of Sloat v. Board of Examiners, 274 N. Y. 367; Hale v. Worsted, 185 N. Y. 247; Matter of Wittekind v. Kern, 170 Misc. Rep. 939; 281 N. Y. 701; Chittenden v. Wurster, 152 N. Y. 345; Matter of Beggs v. Kern, 284 N. Y. 504; Wood v. City of New York, 274 N. Y. 155; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sugden v. Partridge, 174 N. Y. 87; Matter of Mendelson v. Finegan, 168 Misc. Rep. 102; 278 N. Y. 568; Matter of Finegan v. Cohen, 275 N. Y. 432; Dixon v. LaGuardia, 166 Misc. Rep. 889; 253 App. Div. 881; 277 N. Y. 84; Matter of Rushford v. LaGuardia, 280 N. Y. 217; Waters v. City of New York, 43 Misc. Rep. 154; Matter of Friend v. Valentine, 261 App. Div. 163.) By reclassifying and regrading positions the Board of Estimate has usurped the powers of the civil service commissions. The Board has infringed upon the legislative branch, since it represents the executive branch of the city government. (Browne v. City of New York, 241 N. Y. 96; Schieffelin v. Mills, 241 N. Y. 96; Donnelly v. Roosevelt, 144 Misc. Rep. 687; Matter of Davies, 168 N. Y. 89; Kilbourn v. Thompson, 103 U. S. 168 Panama Refining Co. v. Ryan, 293 U. S. 388; Schechter Poultry Corp. v. United States, 295 U. S. 495; United States v. Butler, 297 U. S. 1; Rathbun v. United States, 295 U. S. 602; People ex rel. McClelland v. Roberts, 148 N. Y. 360.)

      Moss K. Schenck and Herman E. Cooper for Samuel A. Lewin et al., appellants.
    The positions of petitioners were abolished by the Board of Estimate, acting in an administrative, not legislative, capacity, and exercising a reviewable, not a plenary, power. (Matter of Collins v. City of Schenectady, 256 App. Div. 389; Matter of Wexler v. Dayton, 255 App. Div. 567; Lewin v. City of New York, 256 App. Div. 1063; Schenbaum v. City of New York, 256 App. Div. 1063; Matter of Dennehy v. Kern. 279 N. Y. 645; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; Matter of College of the City of New York v. Hylan, 205 App. Div. 372; Matter of Rushford v. LaGuardia, 280 N. Y. 217; Matter of Danker v. Board of Health, 266 N. Y. 365; Matter of Wingate v. McGoldrick, 279 N. Y. 246.) Bespondents’ action in abolishing petitioners’ positions was performed in bad faith for the purpose of illegally evading and circumventing the requirements of the Civil Service Law (Cons. Laws, ch. 7), New Yorlc City Charter (in effect January 1, 1938), and the Administrative Code (L. 1937, ch. 929).
      (Lewin v. City of New York, 256 App. Div. 1063; Schenbaum v. City of New York, 256 App. Div. 1063; Matter of Schmidt v. Board of Supervisors, 244 App. Div. 493; Matter of Conway v. Carey, 255 App. Div. 374; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Meenagh v. Dewey, 170 Misc. Rep. 192; Matter of Danker v. Department of Health, 266 N. Y. 365; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; Matter of College of City of New York v. Hylan, 205 App. Div. 372.)

      William C. Chanler, Corporation Counsel (Robert H. Schaffer, Paxton Blair and M. Camper O’ Neal of counsel), for respondents.
    The Board of Estimate acted within the powers conferred upon it by the charter in making the appropriation and its action is not subject to judicial review. (East St. Louis v. Zebley, 110 U. S. 321; Matter of Wingate v. McGoldrick, 279 N. Y. 246; Matter of Hetherington v. McGoldrick, 279 N. Y. 687; Matter of Rosenthal v. McGoldrick, 279 N. Y. 688; 280 N. Y. 11; Matter of McCarthy v. LaGuardia, 172 Misc. Rep. 260; 259 App. Div. 710; 283 N. Y. 701; Matter of City of New York [Ely Ave.], 217 N. Y. 45; Kittinger v. Buffalo Traction Co., 160 N. Y. 377.) The municipal budgetary agencies, not the Civil Service Commission, are entrusted by law with the duty of determining the amount of the appropriation to be made for a position in the city service. The salary grades established in the rules of the Municipal Civil Service Commission are not binding upon the Board of Estimate in the determination of the compensation to be appropriated for a civil service position. (Walters v. City of New York, 119 App. Div. 464; 190 N. Y. 375; Matter of Ryan v. Kaplan, 213 App. Div. 131; 240 N. Y. 690; People ex rel. Stokes v. Tully, 108 App. Div. 345; Powell v. City of New York, 65 App. Div. 421.)
   Per Curiam.

These are two proceedings brought by physicians employed by the Department of Health of the City of New York to compel the Board of Estimate of the city to repeal certain provisions of the expense budget adopted for the budgetary year 1940-1941 and to restore petitioners to the rights they enjoyed prior to July 1, 1940.

Petitioners were appointed after having passed competitive civil service examinations, and, prior to July 1, 1940, they were paid on the basis of an annual salary, although the work is only part time. Other physicians employed by the Department of Health prior to July 1, 1940, were compensated on a per session basis. In the expense budget adopted for the fiscal year commencing July 1, 1940, the Board of Estimate failed to make any appropriations for annual salaries, but provided a total of $648,270 for 235 positions entitled “ Medical' Inspector (Part-time),” three positions Industrial Medical Inspector (Part-time),” etc. The appropriation, introduced by the heading “ wages Temporary Employees,” provides for salaries “ at $5 per session (129,654 sessions).”

The power of the Board of Estimate with respect to the appropriation of the money of the city on the one hand, and the rights of civil service employees of the city on the other hand, must be considered in the light of the functions assigned to the several bodies which together govern civil service employees of the city. A distinction must be recognized between the rights and duties pertaining to a given position and the rights and duties of the incumbent of that position. The power to create and to abolish positions is vested in the Board of Estimate (New York City Charter, § 68; effective January 1, 1938), which, in the absence of mandatory salary legislation, may also fix the compensation payable to the holder of a position, whoever he may be (New York City Charter, § 67). When once the position is established and an appropriation has been made by the Board of Estimate, the appointing officer or body, e. g., head of a city department, may select the persons who are to fill the various positions and receive the salaries attached thereto from among those declared by the Municipal Civil Service Commission to be eligible to discharge the duties of the office and to be entitled to the compensation paid therefor. (New York City Charter, § 884. Cf. Matter of Beggs v. Kern, 284 N. Y. 504.)

It is for the Municipal Civil Service Commission, in accordance, with law and duly promulgated civil service rules, to determine which persons are eligible for appointment to a position of a given rank and grade. Thus the rights of a civil service employee to a given position are dependent upon the existence of the position and an appropriation of salary therefor. When the position and the salary are authorized by the Board of Estimate, the given individual then enjoys certain rights of priority to the position and the salary as against other contenders, and he is entitled not to be ignored in favor of one of lower civil service standing.

From the foregoing it must follow that if the Board of Estimate so chooses, in the absence of special legislation, it is for the Board to determine whether or not to dispense with a given service or whether or not and on what basis to maintain a given appropriation. Neither determination on the part of the Board of Estimate impairs any right of a person enjoying civil service status. Petitioners point to no provision of law which forbids the Board of Estimate to make appropriations on a per session basis rather than per annum. It is said, however, that the appropriation in question permits the heads of departments so to distribute assignments of sessions to the various physicians employed by the Department of Health that those of superior civil service grade may in effect be demoted to a grade below that enjoyed by those of lower civil service standing. That question and such other questions as arise therefrom are not now decided for the proceedings at bar are limited to the question of the duty of the Board of Estimate to make appropriations in such amount and such manner as the petitioners now contend for.

It follows, therefore, that in each proceeding the order appealed from should be affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, , Conway and Desmond, JJ., concur.

Orders affirmed.