text:
    Rebecca E. Hochster, Appellant, v. City Bank Farmers Trust Company et al., Respondents.
    Argued April 16, 1942;
    decided April 30, 1942.

      Gilbert J. Fortgang and Milton Solomon for appellant.

      John S. Chapman, Jr., and Harter F. Wright for Albert J. Seligsberg et ah, as executors, et al., respondents.

      James F. Donnelly for Jeannette Hahlo, respondent.
   Judgment affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Alfred Jones, Appellant, v. New York Savings Bank, Respondent.
    Submitted April 16, 1942;
    decided April 30, 1942.

      Abraham I. Last and Samuel M. Last for appellant.

      Ralph H. Terhune and E. C. Sherwood for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. Continental Bank and Trust Company of New York, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Taxes — 1936.) The People of the State of New York ex rel. Lewis Morris Apartments, Inc., Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants. (Taxes — 1937, 1938-39,1939-40 and 1940-41.)
    Argued April 15, 1942;
    decided April 30, 1942.

      William C. Chanler, Corporation Counsel (Arthur A. Segall and Mendel Lurie of counsel), for appellants.

      Abraham J. Halprin, Sidney Harris and Isidore Sohn for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    P. Charles DeNeri, as Secretary-Treasurer of Barbers’ and Beauty Culturists Union of America, Local No. 7, Appellant, v. Gene Louis, Inc., Respondent.
    Submitted February 27, 1942;
    decided April 30, 1942.

      Louis P. Goldberg, Benjamin Wyle and Samuel S. Rosh for appellant.

      Ralph Weller for respondent.
   Judgments modified by providing that the complaint is dismissed without prejudice to a new action, and as so modified, affirmed, without costs. Sufficient basis does not exist in the statement of agreed facts ” for a determination upon the merits of the questions argued in the briefs since the statement recites only claims and contentions of plaintiff instead of facts. No opinion.

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


text:
    In the Matter of the Claims of Lorena M. Heary and May Kassman, Respondents, against Louis Draudt et al., Appellants. State Industrial Board, Respondent.
    Argued April 14, 1942;
    decided April 30, 1942.

      Manly Fleischmann and Gordon Steele for appellants.

      Edward B. Horning and William J. Brock for claimants, respondents.

      John J. Bennett, Jr., Attorney-General (John F. Loehr and Henry Epstein of counsel), for State Industrial Board, 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 Claim of Walter Ahrens, Respondent, against Louis H. Draudt et al., Appellants. State Industrial Board, Respondent.
    Argued April 14, 1942;
    decided April 30, 1942.

      Manly Fleischmann and Gordon Steele for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr and Henry Epstein of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Lillie A. Thompson. Sagtikos Farm, Inc., Appellant; Frieda S. Miller, as Industrial Commissioner of the State of New York, Respondent.
    Argued April 14, 1942;
    decided April 30, 1942.

      Edward M. O. Pratt for appellant.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Roy W. Legg et al., Appellants, against Arthur W. Brandt, as Superintendent of Public Works of the State of New York, et al., Respondents.
    Submitted April 15, 1942;
    decided April 30, 1942.

      Harry W. Williams for appellants.

      John J. Bennett, Jr., Attorney-General (Edward J. Gretchen and Henry Epstein 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 Henrietta Coopersmith, Appellant, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents, Impleaded with Another.
    Argued April 16, 1942;
    decided April 30, 1942.

      Jacob Beller for appellant.

      William C. Chanter, Corporation Counsel (James Hall Prothero, Paxton Blair and Murray Rudman of counsel), for Board of Standards and Appeals, respondent.

      Victor D. Borst, Jr., for James Haughey, intervener, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Derner, Appellant.
    Argued March 12, 1942;
    decided April 30, 1942.

      Heffren J. Cohen and Joseph Ambrusko for appellant.

      John S. Marsh, District Attorney (Anthony L. Pusateri of counsel), for respondent.
   Judgments reversed and a new trial ordered on the ground that the evidence is insufficient to sustain the finding of guilt beyond a reasonable doubt. No opinion.

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


text:
    In the Matter of the Claim of Anna Laser, Respondent, against Gilmore Cafeteria, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued April 14, 1942;
    decided April 30, 1942.

      Julius J. Rosenberg, Lawrence E. Hoffman and Chester M. Ross for appellants.

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

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


text:
    Agatino Ricciardi, as Administratrix of the Estate of John Ricciardi, Deceased, Appellant, v. William A. Pintard et al., Respondents.
    Submitted April 14, 1942;
    decided April 30, 1942.

      Millard E. Theodore and C. Edward Scotti for appellant.
    No appearance for respondent.
   Appeal dismissed, without costs, on the ground that the order is not final and no question has been certified. No opinion.

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


text:
    In the Matter of the Will of Mary Finnegan, Deceased. Anastasia Hayes et al., Appellants; Herbert Balser, as Executor of Mary Finnegan, Deceased, et al., Respondents.
    Argued April 15, 1942;
    decided April 30, 1942.

      Edwin M. Bourke and Theodore Studwell for appellants.

      E. F. W. Wildermuth and Edward Lafreniere for Herbert Balser, as executor, respondent.
   Order affirmed, with costs to respondent Balser payable out of the estate. No opinion.

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


text:
    Louis Lent, Respondent, v. John C. Eidt, Individually, Appellant, Impleaded with Others.
    Submitted April 16, 1942;
    decided April 30, 1942.

      Christian H. Eidt and Philip Burack for appellant.

      Louis Engelberg 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 the Will of Ernest T. Hargrove, Deceased. William A. T. Hargrove et al., Appellants; Henry B. Mitchell, Respondent.
    Argued January 14, 1942;
    decided April 30, 1942.

      Harold R. Medina, Vahan H. Kalenderian, John M. Lockwood, William, Gilbert and Louis D. Posner for appellants.

      John W. Davis, Theodore Kiendl, Walter D. Fletcher and Raymond A. Carter 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 the Accounting of Edward M. Bratter, as Committee of the Estate of Warily Burdak, an Incompetent Person, et al., Respondents. James F. Egan, Public Administrator of New York County, as Administrator of the Estate of Warily Burdak, Deceased, Appellant.
    Submitted March 6, 1942;
    decided April 30, 1942.

      Joseph A. Cox and Joseph T. Arenson for appellant.

      James Marshall and Harry L. Osterweis for Edward M. Bratter, as committee, respondent.

      Theodore E. Wolcott and Myer Meltsner for Anna B. Pfenning, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Board of Higher Education of the City of New York, Appellant, against Ernest E. Cole, as Commissioner of Education of the State of New York, et al., Respondents.
    Argued April 13, 1942;
    decided April 30, 1942.

      William, C. Chanler, Corporation Counsel (Nicholas Bucci and Paxton Blair of counsel), for appellant.

      Charles A. Brind, Jr., Joseph Lipsky and Robert C. Killough for Commissioner of Education of the State of New York, respondent.

      William, T. Harris and Manuel Weiss for Isabel M. S. Whittier, respondent.
   Order affirmed, with costs to respondent Whittier; no opinion.

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


text:
    In the Matter of Central Hanover Bank and Trust Company, Respondent, against Virginia Momand et al., Appellants. Thomas I. Sheridan, as Special Guardian for. Virginia Momand et al., Infants.
    Argued April 14, 1942;
    decided April 30, 1942.

      Thomas I. Sheridan, special guardian, for appellants.

      Elbridge Stratton, Albert W. Putnam and Walter W. Land for respondent.
   Order affirmed, with costs to all parties appearing by separate attorneys and filing separate briefs payable out of the estate. No opinion.

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


text:
    James F. Wharton, as Administrator of the Estate of Robert K. Wharton, Deceased, Appellant, v. Poughkeepsie Savings Bank, Respondent, Impleaded with Another.
    Argued April 15,1942;
    decided April 30, 1942.

      Borden H. Mills for appellant.

      Earl Hawley for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Theodore M. Gibbons, Jr., as Ancillary Committee of the Property of Charles L. Schwartz, an Incompetent Person, Appellant and Respondent, v. Margaret F. Schwartz, Respondent and Appellant.
    Submitted March 12, 1942;
    decided April 30, 1942.

      Richard I. Weiser for plaintiff, appellant and respondent.

      S. Arthur Glixon and Herman Scheclmer for defendant, respondent and appellant.
   On plaintiff’s appeal: Appeal dismissed, with costs, on the ground that section 588, subdivision 2, of the Civil Practice Act does not authorize an appeal to this court by a party in whose favor the Appellate Division has reversed a judgment and ordered a new trial.

On defendant’s appeal: Order affirmed and judgment absolute ordered against the defendant-appellant upon the second cause of action in accordance with the stipulation, with costs in all courts, unless the defendant-appellant within ten days withdraws her appeal and stipulates to waive costs upon the plaintiff’s appeal. No opinion.

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


text:
    The People of the State of New York, Appellant, v. Thomas Murphy, Respondent.
    Submitted April 13, 1942;
    decided April 30, 1942.

      Daniel J. O’Mara, District Attorney (Stephen K. Pollard of counsel), for appellant.

      Leland R. Yost for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Claim of Mary McCormack, Respondent, against Wood Harmon Warranty Corporation et al., Appellants. State Industrial Board, Respondent.
    Argued April 14, 1942;
    decided April 30, 1942.

      Sydney Weitzer for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for State Industrial Board, 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 City on New York, Respondent, Relative to Acquiring Title to Cross Island Parkway in the Borough of Queens. John Golden, Appellant.
    •Argued April 15, 1942;
    decided April 30, 1942.

      Phillip W. Haberman, Jr., Laurence J. Rittenband and Herman Goldman for appellant.

      William C. Chanler, Corporation Counsel (Reuben Levy and Julius Isaacs of counsel), 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 Globe Mail Service, Inc., Respondent. Globe Organization, Inc., Appellant.
    Argued April 15,1942;
    decided April 30, 1942.

      Philip Wittenberg for appellant.

      Abraham Ellis for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Dayton Iron Works, Inc., Respondent, v. McLain Construction Corporation, Appellant.
    Submitted April 20, 1942;
    decided April 30, 1942.

      Samuel Shereff for motion.

      Frauds L. Giles opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    Frank L. Weil et al., as Trustees, Plaintiffs, v. Darcey Realty Co., Inc., Appellant, Impleaded with Others. Kenneth Fisk, as Receiver, Respondent.
    Submitted April 20, 1942;
    decided April 30, 1942.

      Eugene J. Morris, Allan Rogow and William V. Keenan for motion.

      Lawrence Cohen and Frederick Lese opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion, on the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    Lydia L. Querze, Appellant, v. Raoul Querze, Respondent.
    Submitted April 27, 1942;
    decided April 30, 1942.

      Alexander Stone for motion.

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


text:
    The People of the State of New York, Respondent, v. Alfred Terry, Appellant.
    Argued April 23, 1942;
    decided May 28, 1942.

      David I. Ashe and George Rifkin for appellant.

      William O’Dwyer, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Nathan Rubin, Appellant, v. Rex Cole, Inc., Respondent.
    Argued April 24, 1942;
    decided May 28, 1942.

      Lawrence E. Brinn for appellant.

      Norman W. Arnheim and Joseph A. Schaines for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank P. Mack, Appellant, v. Albee Press, Inc., Respondent.
    Argued April 28, 1942;
    decided May 28, 1942.

      Joseph J. Jacobs for appellant.

      Joseph F. Murray and Reginald V. Spell for respondent.
   Judgment affirmed, with costs; no opinion. (See 288 N. Y. 734.)

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


text:
    The People of the State of New York, Respondent, v. James Orlando, Appellant, Impleaded with Others.
    Argued April 29, 1942;
    decided May 28, 1942.

      Maurice Edelbaum and Leon Fischbein for appellant.

      Frank S. Hogan, District Attorney (Richard G. Denser and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Pennsylvania Company for Insurance on Lives and Granting Annuities, as Executor of J. Walter Zebley, Deceased, et al., Appellants, v. James L. Kauffman, as Executor of William R. Davis, Deceased, et al., Respondents.
    Argued April 29, 1942;
    decided May 28, 1942.

      Orville C. Sanborn, Richard S. Holmes and George E. Reynolds for appellants.

      C. Horace Tuttle and John F. Faulkner for respondents.
   Appeal dismissed, with costs, on the ground that no substantial constitutional question is involved. No opinion. (See 288 N. Y. 734,)

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


text:
    In the Matter of the Accounting of Frank J. Maguire, as Executor and Trustee under the Will of Josephine V. Blodgett, Deceased, Appellant and Respondent. Nathan E. Blodgett et al., Respondents and Appellants.
    Argued April 13, 1942;
    decided May 28, 1942.

      Horace E. Whiteside, Kenneth B. Keating, Edward N. Mills and Keith D. Poland for Frank J. Maguire, as executor and trustee, appellant and respondent.

      Benjamin E. Shove for Nathan E. Blodgett et al., respondents and appellants.

      George Britten for O’Connell Ferris, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    Lever Brothers Company, Appellant and Respondent, v. J. Eavenson & Sons, Inc., et al., Respondents and Appellants.
    Argued April 20, 1942;
    decided May 28, 1942.

      Neil. P. Cullom, Frederick E. Crane and Henry W. Steingarten for plaintiff, appellant and respondent.

      Chester Rohrlich, Henry Cohen, Irving Moskovitz and Thomas Freeman, Jr., for defendants, respondents and appellants:
   Judgments affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewi's, • Conway and Desmond, JJ.


text:
    Irving Trust Company, Appellant and Respondent, v. Benann Holding Corporation, Respondent and Appellant, and Benjamin Kaplan, Respondent, Impleaded with Others.
    Argued April 22, 1942 ;
    decided May 28, 1942.

      Martin A. Schenck for plaintiff, appellant and respondent.

      Frederick E. Crane and Julius Paull for defendant, respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Ingeborg Blundell, Respondent.
    Argued April 23, 1942;
    decided May 28, 1942.

      William O'Dwyer, District Attorney (Edward H. Levine and Henry J. Walsh of counsel), for appellant.

      Alvin Jay Feldman for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Michael DeAngelis, Appellant.
    Argued April 24, 1942;
    decided May 28, 1942.

      Michael Ruggiero for appellant.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Abraham J. Edelson, Respondent, v. Samuel Oxenberg et al., Doing Business under the Firm Name of Oxenberg Brothers, Appellants.
    Argued April 27, 1942;
    decided May 28, 1942.

      N. William Welling, Maurice Finkelstein and Mark J. Goell for appellants.

      Bernard Schlenger, Charles Gottlieb and George Moskowitz for respondent. .
   Judgment affirmed, with costs; no opinion.

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


text:
    George P. Oppel, Individually, and as Guardian ad Litem of George L. Oppel, an Infant, Appellant, v. City of Long Beach, Respondent.
    Submitted April 28, 1942;
    decided May 28, 1942.

      James G. Blake and George E. Mulry for appellant.

      Bernard H. Reich, Corporation Counsel (Louis A. Friedman of counsel), for respondent.
   Judgment affirmed, with one bill of costs; no opinion.

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


text:
    Victor Wojdag, as Administrator of the Estate of Tillie Wojdag, Deceased, Appellant, v. Brooklyn & Queens Transit Corporation, Respondent.
    Argued April 16, 1942;
    decided May 28, 1942.

      Abraham N. Levy for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and James Hall Prothero of counsel), for respondent.
   Judgments reversed and a new trial granted on the ground that upon this record there were questions of fact in regard to negligence and contributory negligence for determination by the jury. No opinion.

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


text:
    In the Matter of Holmes Electric Protective Company, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued April 27, 1942;
    decided May 28, 1942.

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

      Frank A. Fritz, Ralph W. Brown, John M. Farrell and Charles T. Russell for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Louise F. Torok, Appellant, v. Teachers’ Retirement Board, Respondent.
    Argued April 28, 1942;
    decided May 28, 1942.

      Benjamin Solovay for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Henry J. Shields of counsel), 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 Irmor Corporation, Appellant, against Henry E. Bruckman et al., Individually and as Members of the State Liquor Authority et al., Respondents.
    Argued April 29, 1942;
    decided May 28, 1942.

      H. H. Nordlinger and Jacob M. Dinnes for appellant.

      Morris Holman for Mitchell’s Wine & Liquor Store, Inc., respondent.

      Monroe I. Katcher, II, and Francis V. McHugh for State Liquor Authority et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    LeRoy Tesiero, Respondent, v. Albert Kiskis, Appellant. Theodore Levandusky, Respondent, v. Albert Kiskis, Appellant.
    Argued April 17, 1942;
    decided May 28, 1942.

      Carl S. Salmon and Herbert F. Hastings, Jr., for appellant.

      Coleman Taylor and J oseph N. Barnett for respondents.
   In each action: Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Sidney Vandecarr, Appellant.
    Argued April 23, 1942;
    decided May 28, 1942.

      Harry L. Slobodin for appellant.

      John J. Bennett, Jr., Attorney-General (Bernard Bienstock of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Victor Balacek, Appellant, against Board of Trustees of the Fire Department Pension Fund & Related Funds of the City of New York et al., Respondents.
    Argued April 21, 1942;
    decided May 28, 1942.

      Austin B. Mandel for appellant.

      William C. Chanler, Corporation Counsel (Charles F. Murphy, Paxton Blair and George G. Gallants of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    James Kelly, Appellant, v. City of New York, Respondent.
    Argued April 24, 1942;
    decided May 28, 1942.

      Philip Hoffer for appellant.

      William C. Charier, Corporation Counsel (Irving Galt and Paxton Blair of counsel), 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, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Claim of Margaret Auster. Margaret Stockton, Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Submitted April 28, 1942;
    decided May 28, 1942.

      George Gray Zabriskie for appellant.

      John J. Bennett, Jr., Attorney-General (W. Gerald Ryan and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Guy W. Picking and Ida M. Picking, Appellants.
    Argued April 30, 1942;
    decided May 28, 1942.

      Ida M. Picking, in person, for appellants.

      Frank S. Hogan, District Attorney (Francis G. Leffler and Stanley H. Fuld of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Michael Lomars and Joseph Weiss, Appellants.
    Argued March 5, 1942;
    decided May 28, 1942.

      Samuel Markewich, Arthur Markewich and Jerome G. Rosenhaus for Michael Lomars, appellant.

      Mortimer Battler and William W. Kleinman for Joseph Weiss, appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Richard G. Denser of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Riverside St. Clair Corporation, Appellant, v. City of New York, Respondent.
    Argued March 13, 1942;
    decided May 28, 1942.

      Joseph W. Zeller for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for respondent.
   Judgment of Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division. Upon the theory on which the case was tried, a question of fact was presented in regard to the defendant’s negligence. No opinion.

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


text:
    In the Matter of the Claim of Nicholas Genovese, Appellant, against Joseph Dorff, Inc., et al., Respondents. State Industrial Board, Respondent.
    Argued April 14, 1942;
    decided May 28, 1942.

      Murray James and Samuel L. Miller for appellant.

      George J. Hayes and William F. O’Rourke for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Matty Attias, Respondent, v. New York World’s Fair 1939, Inc., Defendant, and Joseph R. Hoefle, Appellant.
    Argued April 17, 1942;
    decided May 28, 1942.

      George J. Stacy and Joseph Kane for appellant.

      Arnold H. Barnett and Jerome S. Blumenthal for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George E. Nelson, Respondent, v. Board of Higher Education of City of New York, Appellant.
    Argued April 21, 1942;
    decided May 28, 1942.

      William C. Chanter, Corporation Counsel (Nicholas Sited, Paxton Blair and Arthur H. Kahn of counsel), for appellant.

      Osmond K. Fraenkel for respondent.

      A. Mark Levien for City College Instructors and High School First Assistants of the Board of Education of the City of New York, amici curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of George F. Adams et al., Respondents, against Board of Higher Education of the City of New York, Appellant.
    Argued April 21, 1942;
    decided May 28, 1942.

      William C. Chanler, Corporation Counsel (Nicholas Bucci, PaxtonBlair and Arthur H. Kahn of counsel), for appellant.

      A. Mark Levien for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Adolf Gobel, Inc., Appellant, v. William J. Hammerslough et al., Individually, and as Copartners Doing Business under the Firm Name of Lehman Bros., et al., Respondents, Impleaded with Others.
    Argued April 23, 1942;
    decided May 28, 1942.

      Charles E. Scribner and Leonard B. Frutkin for appellant.

      Horace C. Hitchcock, Dwight R. Collin and Irving M. Gruber for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Nardone, as Executor of Anthony Fanizzi, Deceased, Appellant, v. Milton Fire District, Respondent.
    Submitted April 24, 1942;
    decided May 28, 1942.

      Andrew J. Cook and Michael Nardone for appellant.

      George Rusk and George F. Kaufman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Milton G. Hauer, Appellant, v. Philip J. Rudden, as Executor of Florence Rudden, Deceased, Respondent.
    Argued April 28, 1942;
    decided May 28, 1942.

      Jacob M. Zinaman for appellant.

      James I. McGuire and George A. Garvey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Manstin Engineering Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 24353-A.)
    Argued April 21, 1942;
    decided May 28, 1942.

      Morton Lexow and Alton W. Teale for appellant.

      John J. Bennett, Jr., Attorney-General (Burns F. Barford, Henry Epstein and James H. Glavin, Jr., of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Max Soshtain, Appellant.
    Submitted April 23, 1942;
    decided May 28, 1942.

      Leo Shapiro for appellant.

      William Dwyer, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgments reversed and complaint dismissed on the authority of People v. Richardson (287 N. Y. 563). No opinion. (See 288 N. Y.735.)

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


text:
    The People of the State of New York, Respondent, v. Marie Van Why, Appellant.
    Argued April 24, 1942;
    decided May 28, 1942.

      C. Vernon Stratton for appellant.

      Lester R. Mosher, District Attorney, for respondent.
   Judgments reversed and information dismissed on the ground that there is no competent evidence to sustain the finding of guilt. No opinion.

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


text:
    In the Matter of Harriet H. Andrews, Appellant, against Mark Graves et al., Constituting the State Tax Commission Respondents.
    Argued April 28, 1942;
    decided May 28, 1942.

      Henry M. Stevenson for appellant.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Maria G. Miglietta et al., Appellants. Twenty-six Broadway Corporation, Respondent.
    Submitted April 27, 1942;
    decided May 28, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 287 N. Y. 246.)


text:
    New York Life Insurance Company, Respondent, v. West 18th and 19th Street Realty Corporation et al., Defendants, and Edna S. McLear, as Executrix of Robert E. McLear, Appellant.
    Submitted May 1, 1942;
    decided June 4, 1942.

      Wallace T. Stock and Herbert G. McLear for appellant.

      Mendes Hershman, Edward T. McCaffrey and Dudley Davis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    David B. Goldberg, Jr., et al., Infants, by Claire Goldberg, as General Guardian and Guardian ad Litem, Respondents, v. Mutual Life Insurance Company of New York, Appellant.
    Argued May 1, 1942;
    decided June 4, 1942.

      John G. Kelly and Louis W. Dawson for appellant.

      Frederick E. Weinberg and Arthur J. Brothers for respondents.
   Appeal dismissed, without costs, on the authority of Travelers Insurance Company v. Shachner (280 N. Y. 758). No opinion.

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


text:
    Ruth Fox, as Administratrix of the Estate of William H. Fox, Deceased, Appellant, v. Tice Towing Line, Inc., Respondent.
    Argued April 30, 1942;
    decided June 4, 1942.

      Abraham M. Fisch for appellant.

      C. B. M. O’ Kelley, Chauncey I. Clark and George F. Tinker for respondent.
   . Judgments reversed and a new trial granted, with costs to the appellant to abide the event. The evidence presented questions of fact both as to whether the negligence of the defendant was a proximate .cause of the accident, and as to whether plaintiffs’ intestate was free from contributory negligence. No opinion.

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


text:
    Board of Education of the City of New York et al., Respondents, v. Robert W. Baylor, Defendant, and Standard Surety & Casualty Company of New York, Appellant.
    Argued April 17, 1942;
    decided June 4, 1942.

      Leo T. Kissam and J. Francis Hayden for appellant.

      William C. Chanler, Corporation Counsel (John G. Clancy and Paxton Blair of counsel), for Board of Education of City of New York, amicus curiae.

      Benjamin P. DeWitt and Sidney Pepper for respondents.
   Judgment affirmed, with costs. We hold that under the provisions of the bond in suit the six-months period which limited the time within which action might be brought against the surety commenced on February 2, 1940, the date of final payment by the Comptroller to the defendant Baylor. No opinion.

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


text:
    Francis J. Ryan, Jr., as Assignee for the Benefit of Creditors of Chateau D’Or Garage Corporation, Respondent, v. Philip Berkowitz et al., Defendants; David S. Kumble, Appellant, and Abraham Adisky et al., Respondents.
    Submitted April 30, 1942;
    decided June 4, 1942.

      Andrew J. Reisinger and Otto W. Muehlenbrink for appellant.
    No appearance for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Manufacturers Mutual Fire Insurance Company of Rhode Island et al., Respondents, v. Associated Gas and Electric Company et al., Respondents; Stanley Clarke, as Trustee of Associated Gas and Electric Company, Appellant.
    Argued April 16, 1942;
    decided June 4, 1942.

      Ben A. Matthews, Addison S. Pratt, Joseph H. Schnabel, Coburn B. Kidd and John J. Dowling for appellant.

      William S. Bennet for Victor House, amicus curiæ.

      James N. Vaughan for Holthusen & Pinkham, amicus curiæ.

   Order affirmed, with costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

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


text:
    Peter J. White, Appellant, v. Richard J. Barry, Respondent.
    Submitted May 25, 1942;
    decided June 4, 1942.
   Motion for reargument and for a stay denied, with ten dollars costs and necessary printing disbursements. (See 288 N. Y. 37.)


text:
    Anna Katz et al., Appellants, v. Bora Realty Corporation, Respondent.
    Submitted May 25, 1942;
    decided June 4, 1942.

      Stanley Zuckerman for motion.

      Martin H. Selman opposed.
   Motion denied.


text:
    Louis B. Dunn, as Trustee in Bankruptcy of Otis A. Murray, Respondent, v. E. L. Gayvert and Company, Inc., et al., Appellants.
    Argued May 25, 1942;
    decided June 4, 1942.

      Edward F. Mergler and E. A. Mapes for motion.

      Frederic Weyand opposed.
   Motion granted and appeals dismissed, with costs and ten dollars costs of motion, unless each appellant pays ten dollars costs and serves and files undertaking on appeal within ten days, in which event the motion is denied.


text:
    Esther Maier, Respondent, v. George Maier, Appellant.
    Submitted May 25,1942;
    decided June 4,1942.

      John J. Scully for motion.

      George W. Foy opposed.
   Motion for leave to appeal dismissed on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Arthur W. Newell et al., Respondents. Pathe Film Corporation, Appellant.
    Submitted May 25, 1942;
    decided June 4,1942.

      Louis Nizer and William Goffen for motion.

      Leonard I. Schreiber opposed.
   Motion for leave to appeal dismissed on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Myrtle A. Segar, as Executrix of Elzie C. Segar, Deceased, Respondent, v. King Features Syndicate, Inc., Appellant.
    Argued May 25, 1942;
    decided June 4,1942.

      Jacob L. Holtzmann, Marvin M. Notkins and Fanny E. Holtzmann for motion.

      James Carroll opposed.
   Motion denied with leave to renew upon the argument of the appeal.


text:
    The People of the State of New York ex rel. Wallington Apartments, Inc., Appellant, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Argued May 25, 1942;
    decided June 4, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 288 N. Y. 31.)


text:
    The People of the State of New York, Respondent, v. Diana Beck, Appellant.
    Submitted May 25,1942;
    decided June 4,1942,
   Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: The defendant argued (1) that Article 19 of the Labor Law of the State of New York is violative of, and repugnant to, the Fourteenth Amendment of the Constitution of the United States; (2) that Sections 110, 111 and 112 of said Labor Law, and the mandatory order Number 2 issued by the Commissioner of Labor are violative of, and repugnant to, the Fourteenth Amendment of the Constitution of the United States. This court held that said Article 19 of the Labor Law of the State of New York, Sections 110, 111 and 112 of said Labor Law, and the mandatory order Number 2 issued by the Commissioner of Labor are not violative of, or repugnant to, the Fourteenth Amendment of the Constitution of the United States.” (See 288 N. Y.569 .)


text:
    African Metals Corporation et al., Appellants, v. Ralph J. M. Bullowa et al., Respondents, Impleaded with Others.
    Submitted May 25, 1942;
    decided June 4, 1942.
   Motion- for reargument denied, with ten dollars costs and necessary printing disbursements. • (See 288 N. Y. 78.)


text:
    James W. Andrews, as Trustee in Bankruptcy of the Estate of Frank Shannon, Appellant, v. Metropolitan Jockey Club et al., Respondents.
    Submitted May 25, 1942;
    decided June 4, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 288 N. Y. 533.)


text:
    In the Matter of Arthur J. Goodwin, Respondent, against Mark Graves, as Commissioner of Taxation and Finance of the State of New York, Appellant.
    Argued April 30, 1942;
    decided June 11, 1942.

      John J. Bennett, Jr., Attorney-General (Bernard L. Alderman and Patrick H. Clune of counsel), for appellant.

      Raymond M. Bush for respondent.
   Order affirmed, without costs, and question certified answered in the negative. We agre.e with the Appellate Division that the petitioner having assorted that the determination was made in Onondaga county, it eannot be. determined as a matter of, law upon this record that it was made elsewhere. No opinion.

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


author: Finch, J.

text:
    The People of the State of New York, Respondent, v. James A. Gallagher, Appellant.
    Argued April 24, 1942;
    decided June 11, 1942.

      Earl J. Garey, Wm. Francis Corson and William R. Rawick for appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld and Richard G. Denzer of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis and Desmond, JJ.; Finch, J., dissents in following opinion in which Rippey and Conway, JJ., concur:

Finch, J.

(dissenting). Defendant, an attorney, has been convicted of larceny for embezzling five liberty Loan bonds belonging to an estate of which he was sole trustee. He has appealed to this court alleging, among other things, errors at the trial. We pass at once to a contention made by the defendant which, if error, went to the vitals of the defense offered by him at the trial.

The principal defense offered by defendant was that he had borrowed, in good faith, bonds belonging to the estate and had paid interest on the loan, acting under the alleged honest belief that such borrowing was not a breach of fiduciary duty. In order to disprove this defense, the People offered in evidence, as admissions by the defendant, the intermediate account filed by him in the Surrogate’s Court and the preliminary draft thereof prepared by defendant about two weeks beforehand. These two documents are inconsistent because, while the account in final form states that the defendant borrowed bonds from the estate and paid interest on the loan, the preliminary draft makes no mention of these facts. Thus both documents were offered to prove circumstantially that the defense of having borrowed these bonds in alleged good faith was a mere afterthought and, therefore, showed guilty knowledge on the part of defendant.

Section 392-a of the Code of Criminal Procedure provides as follows: “ Pleading in civil action. A pleading in a civil action cannot be used,, in a criminal prosecution against the party, as proof of a fact* admitted or alleged therein.”

The intermediate account was a pleading in a civil action (Surrogate’s Court Act, §§ 48, 49, 51; Matter of Kilborn, 232 App. Div. 580, 582), which was offered by the People to prove a fact admitted or alleged therein, namely, that defendant had stated that he had borrowed certain bonds from the estate. The People then introduced in evidence the preliminary draft of the account to prove that defendant had made an inconsistent statement only a short time before. The introduction in evidence of the account for this purpose is clearly prohibited by section 392-a, and requires a reversal.

It is no answer to argue that the pleading, instead of being offered as proof of a fact admitted or alleged therein, was offered rather in disproof of a fact admitted therein, so that its use was not forbidden. So *to construe the language of the statute would be to disregard both its intent and spirit because the same policy that prohibits the use of a pleading to prove a fact admitted therein would certainly prohibit the use of the pleading to disprove such a fact. The section of the Code in question is a criminal statute and should be construed so as to afford the protection to defendants intended by the Legislature.

The judgment of conviction should be reversed and a new trial granted.


text:
    The People of the State of New York, Respondent, v. Hermond Miller, Appellant.
    Argued April 22, 1942;
    decided June 11, 1942.

      John Leo Sullivan for appellant.

      Edwin G. O’Connor, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Corporation Counsel of City of New York (Garden Place & Vernon Parkway). Carmelo Lembo, Appellant; Corporation Counsel of City of New York, Respondent.
    Argued April 28,1942;
    decided June 11,1942.

      Garry J. Fury for appellant.

      William C. Chanter, Corporation Counsel (Samuel K. Handel, Julius Isaacs and Leo Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Clinton Trust Company, as Receiver, Appellant, against James J. Sexton, et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents. The People of the State of New York ex rel. Clinton Trust Company, as Receiver, Appellant, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.
    Argued April 29, 1942;
    decided June 11, 1942.

      Louis G. Bernstein, Sidney Fass, Meyer Kraushaar and Mark Hyman for appellant.

      William C. Chanler, Corporation Counsel (Arthur A. Segall of counsel), for respondents.
   Orders of the Appellate Division reversed and those of the Special Term affirmed, with costs in this court and in the Appellate Division on the ground the weight of evidence is with the findings of the Special Term. No opinion.

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


text:
    In the Matter of the Claim of Mary Walsh, as Administratrix of the Estate of Mildred D. Graves, Deceased, and as Guardian of Joan Graves, an Infant, Respondent, v. Tidewater Oil Sales Company et al., Appellants. State Industrial Board, Respondent.
    Submitted May 25, 1942;
    decided June 11, 1942.

      John J. Conners, Jr., for motion.

      Joseph Saidel opposed.
   Motion dismissed. If the order is final an appeal may be taken as of right. If the order is not final, the court has no power to grant the motion.


text:
    In the Matter of Jack Levine, Respondent, against Joseph E. Levine, Appellant.
    Submitted May 25, 1942;
    decided June 11, 1942.

      Jesse Climenko for motion.

      Samuel Hoffman, Philip Blumenthal and Bernard Buchwald opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Fritz Kuhn, Appellant.
    Submitted May 25, 1942;
    decided June 11, 1942.

      Frank S. Hogan, District Attorney (Stanley H. Fuld of counsel), for motion.

      Peter L. F. Sabbatino for appellant.
   Motion granted and appeal dismissed.


text:
    In the Matter of Cost Vendramis, Respondent. Sword Steamship Line, Inc., Appellant.
    Submitted June 1, 1942;
    decided June 11, 1942.

      Inzer B. Wyatt for motion.

      M. Harvey Smedley and Roberts B. Thomas opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the proceeding within the meaning of the Constitution. (Matter of Bickerton v. N. Y. Theatre Co., 232 N. Y. 1.)


text:
    Billie Knitwear, Inc., Respondent, v. New York Life Insurance Company, Appellant.
    Argued May 26, 1942;
    decided June 18, 1942.

      Mendes Hershman, Philip J. Lynch and Dudley Davis for appellant.

      George Dines and S. Harry Eilenberg for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    In the Matter of the Claim of Dorothy K. Murphy, Respondent, against Mary Immaculate Hospital et al., Appellants. State Industrial Board, Respondent.
    Submitted May 27, 1942;
    decided June 18, 1942.

      James J. McLoughlin, Francis J. McLoughlin and Thomas F. Harrigan for appellants.

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

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


text:
    In the Matter of the Probate of the Will of Lillian E. Stone, Deceased. Katherine Hershey et al., Appellants; Caroline G. McConnell, as Executrix of Lillian E. Stone, Respondent.
    Argued May 27, 1942;
    decided June 18, 1942.

      DeSilver Drew and W. J. Wetherbee for appellants.

      Alger A. Williams for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Abraham Andie, Appellant, v. Nechomie Kaplan, Respondent.
    Submitted May 29, 1942;
    decided June 18, 1942.

      Sidney W. Fischman and David L. Sprung for appellant.

      Robert C. Finkelstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Chris Pedersen, Appellant, v. J. F. Fitzgerald Construction Company, Respondent.
    Argued March 10,1942;
    decided June 18, 1942.

      William E. J. Connor.for appellant.

      Jacob D. Hyman, Charles R. Reynolds, Jr., Warner W. Gardner, Irving J. Levy, Mortimer B. Wolf and Arthur E. Reyman for Administrator of Wage and Hour Division, United States Department of Labor, amicus curise.

      Henry E. Foley and Charles E. Nichols for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Grace H. Coe, Respondent, v. Dudley B. Coe, Appellant.
    Submitted May 25, 1942;
    decided June 18, 1942.

      Horace G. Marks and Bernard Schwartz for appellant.

      Aaron H. Walowit and George J. Gross 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 the Claim of William Maiceo, Respondent, against City of Yonkers, Appellant. State Industrial Board, Respondent.
    Argued May 27, 1942;
    decided June 18, 1942.

      Leonard G. McAneny, Corporation Counsel (William F. Cauley, Jr., of counsel), for appellant.

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

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


text:
    Harry Z. Harris et al., Appellants, v. General Motors Corporation et al., Respondents.
    Argued May 27, 1942;
    decided June 18, 1942.

      Harry Z. Harris for appellants.

      Edward B. Wallace, George A. Brooks, Gordon H. Brown and John Thomas Smith for respondents.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

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


text:
    City of New York, Respondent, v. United States Land and Improvement Company, Ltd., et al., Defendants, and Brooklyn and Jamaica Bay Turnpike Company, Appellant.
    Argued April 30, 1942;
    decided June 18, 1942.

      R. E. Burdick, M. S. Isaacs and I. S. Isaacs for appellant. William C. Chanter, Corporation Counsel (Daniel M. Cohen and Julius Isaacs of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Betty L. Schmelzel, Respondent, v. Clarence Schmelzel, Appellant.
    (Appeal No. 3.)
    Argued May 25, 1942;
    decided June 18, 1942.

      F. Fearon Brown for appellant.

      Sidney M. Wittner for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Betty L. Schmelzel, Respondent, v. Clarence Schmelzel, Appellant.
    (Appeal No. 4.)
    Argued May 25, 1942;
    decided June 18, 1942.

      F. Fearon Brown for appellant.

      Sidney M. Wittner for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Estate of George Fowler, Deceased. James R. Duncan et al., as Trustees under the Will of George Fowler, Deceased, et al., Respondents; George W. Fowler, Appellant.
    Argued May 25, 1942;
    decided June 18, 1942.

      Clinton DeWitt Van Siclen, Wilbur R. Shook and John G. Powers for appellant.

      William Bradford Roulstone and Adam Frank for Florence L. Hutson, respondent.

      Charles W. Turner and John M. Keane for James R. Duncan et al., as trustees, respondents.
   Order affirmed, with costs payable out of the fund. No opinion.

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


text:
    The People of the State of New York ex rel. National Exhibition Company, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued May 26, 1942;
    decided June 18, 1942.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg, Arthur A. Segall and William B. Trafford of counsel), for appellants.

      Charles Lamb and Leo J. Bondy 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 Claim of John Dugan, Respondent, against Hasman and Baxt, Inc., et al., Appellants. State Industrial Board, Respondent.
    Submitted May 27, 1942;
    decided June 18, 1942.

      Jeremiah F. Connor for appellants.

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

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


text:
    In the Matter of Frank H. Innes, as District Attorney of Richmond County, against Thomas F. Cosgrove, as County Judge of Richmond County, et al., Respondents. John J. Bennett, Jr., as Attorney-General of the State of New York, Appellant.
    Argued May 28, 1942;
    decided June 18, 1942.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and William J. Butler of counsel), for appellant.

      Abraham Shamos, Rudolph E. Uhlman and Peter F. Gulotta for Carl A. Richter, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Anna Davies, Appellant, v. Louis F. Stumpf et al., Defendants, and W. Clifford Roderick, Respondent.
    Argued May 28, 1942;
    decided June 18, 1942.

      Jacob Streiner and Norman D. Ramol for appellant.

      Warren W. Stumpf and Louis F. Stumpf for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loxjghran, Finch, Riprey, Lewis, Conway and Desmond, JJ.


text:
    Anna Davies, Respondent, v. Louis F. Stumpf et al., Appellants, Impleaded with Another.
    Argued May 28, 1942;
    decided June 18, 1942.

      Louis Bennett, Louis F. Stumpf and Warren W. Stumpf for appellants.

      Norman D. Ramol and Jacob Streiner for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

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


text:
    Anneliese Wieder, an Infant, by Adam Wieder, Her Guardian ad Litem, et al., Appellants, v. John Meehan et al., Copartners under the Firm Name of John Meehan & Son, Respondents.
    Submitted April 24, 1942;
    decided June 18, 1942.

      Robert Hyman for appellants.

      James I. McGuire and George A. Garvey for respondents.
   Judgment of Appellate Division reversed and that of Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that upon this record there were questions of fact as to the defendants’ negligence and the plaintiff’s freedom from contributory negligence. No opinion.

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


text:
    William W. Bachmann, Appellant, v. New York City Tunnel Authority, Respondent.
    Argued May 25, 1942;
    decided June 18, 1942.

      Herman Spingarn for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair and Alfred D. Jahr of counsel), for respondent.
   Appeal dismissed, with costs, on the ground no substantial constitutional question is involved. No opinion.

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


text:
    In the Matter of William B. Herlands, as Commissioner of Investigation of the City of New York, Appellant. Kenneth Sutherland, Respondent.
    Argued May 25, 1942;
    decided June 18, 1942.

      William C. Chanler, Corporation Counsel (G. William Shea and Paxton Blair of counsel), for appellant.

      Sidney Squire, Oscar A. Lewis and Lloyd B. Kanter for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. 19 Rector St. Corporation, Respondent, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Appellants.
    Argued May 26, 1942;
    decided June 18, 1942.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg and Arthur A. Segall of counsel), for appellants.

      Robert J. Silberstein and Victor S. Gettner 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 Claim of Francesco Rodriguez, Respondent, against New York Dock Company, Appellant. State Industrial Board, Respondent.
    Argued May 27, 1942;
    decided June 18, 1942.

      James F. Fouhy for appellant.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for State Industrial Board, respondent.
   Order of Appellate Division and award of State Industrial Board reversed, and claim dismissed, with costs in this court and in the Appellate Division against the State Industrial Board, on the authority of Matter of Dorfman v. Levine (260 N. Y. 665). No opinion.

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


text:
    In the Matter of National Surety Company. Department of Banking, State of Nebraska, as Receiver and Liquidating Agent of Farmers State Bank, Callaway, Nebraska, Appellant; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of National Surety Company, Respondent.
    Argued May 29, 1942;
    decided June 18, 1942.

      Morris Amchan, Charles B. Law, John W. Barker and Nathan Amchan for appellant.

      Gail L. Ireland, Attorney-General of Colorado, and the Attorneys-General of Connecticut, Florida, Georgia, Indiana, Kentucky, Missouri, Montana, North Dakota, Ohio, Texas, Utah, West Virginia and Wyoming, amici curiæ.

      J. Francis Lynch and Edward F. Keenan 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 Title Guarantee and Trust Company, as Trustee, Respondent. Ridge Holding Corporation, Appellant.
    Argued May 25, 1942;
    decided June 18, 1942.

      Benjamin Lichtman for appellant.

      I. Nathanson and Sidney D. Young 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 Dellwood Dairy Co., Inc., Appellant, against Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent.
    Argued May 26, 1942;
    decided June 18, 1942.

      Solomon I. Sklar and Sydney C. Weinstein for appellant.

      Robert G. Blabey and Milo R. Kniffen 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 Claim of Lillian I. Heimroth, Respondent, against Elk Transportation Company et al., Appellants. State Industrial Board, Respondent.
    Argued May 27, 1942;
    decided June 18, 1942.

      John J. Conners, Jr., for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr and Joseph A. McLaughlin of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. William Dambrosio, Appellant, v. J. F. McNeill, as Superintendent of the Institution for Male Defective Delinquents, Napanoch, Respondent. The People of the State of New York, Respondent.
    Argued May 26, 1942;
    decided June 18, 1942.

      Gustave Blaustein for appellant.

      John J. Bennett, Jr., Attorney-General (Bernard L. Alderman and Patrick H. Clune of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Ri?pey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of the Claim of Carrie N. Westbrook, Appellant, against E. W. Edwards & Son et al., Respondents. State Industrial Board, Respondent.
    Argued May 27,1942;
    decided June 18,1942.

      Philip A, Sullivan for appellant,

      Victor Fiddler, George J. Hayes and William F. O’Rourke 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 the Claim of Ernest Wright against New York Central Railroad Company, Respondent. State Industrial Board, Appellant.
    Argued May 27, 1942;
    decided June 18, 1942.

      John J. Bennett, Jr., Attorney-General’(John F. Loehr and Joseph A. McLaughlin of counsel), for State Industrial Board, appellant.

      Robert E. Whalen and Charles E. Nichols for respondent.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    Amex Asphalt Corporation et al., Appellants and Respondents, v. City of New York, Respondent and Appellant.
    Argued May 28, 1942;
    decided June 18, 1942.

      Samuel L. Greenberg and Erwin Greenberg for plaintiffs, appellants and respondents.

      William C. Chanter, Corporation Counsel (James Hall Prothero, Paxton Blair and Nelson Rosenbaum of counsel), for defendant-respondent and appellant.
   Order affirmed, without costs. Question certified on appeal by plaintiff answered in the negative. Question certified on appeal by defendant answered in the affirmative. No opinion.

oncur: Loughran, Finch, Rippey, .Lewis, Conway and Desmond, JJ. Lehman, Ch. J., concurs as to the third defense, but dissents as to the first defense.


text:
    Henry N. Moeller, Individually and as Executor of Henry Moeller, Deceased, et al., Respondents, v. American Surety Company of New York, Appellant, and Anita M. Thoman, Individually, Respondent, Impleaded with Another.
    Argued May 25, 1942;
    decided June 18, 1942.

      Mahlon A. Freeman for appellant.

      John Edmond Hewitt, Arthur W. Graef and Albert Mannheimer for plaintiffs, respondents.

      Christian S. Lorentzen for Anita M. Thoman, individually, defendant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Norman Gallahan, Respondent, against Papec Machine Company et al., Appellants. State Industrial Board, Respondent.
    Argued May 27, 1942;
    decided June 18, 1942.

      John M. Cullen for appellants.

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

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


text:
    Marfran Realty Corporation et al., Appellants, v. Meyer L. Agin, Respondent, Impleaded with Others.
    Argued May 27, 1942;
    decided June 18, 1942.

      Leo E. Sherman for appellants.

      Lazarus Joseph, Jacob S. Demov and Charles L. Grad 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 Mary Soules. R. C. Van Marter, as Commissioner of Public Welfare of the Tompkins County Public Welfare District, Appellant; David C. Adie, as State Commissioner of Social Welfare, Respondent.
    Argued May 28, 1942;
    decided June 18, 1942.

      Charles H. Newman, County Attorney of Tompkins County, for appellant.

      John J. Bennett, Jr., Attorney-General (Clarence M. Maloney and Henry Epstein of counsel), for respondent.

      Arthur G. Adams for Mary Soules, intervener.

      Harry Rosenberg, County Attorney of Monroe County, for Jesse B. Hannan, Director of Welfare of Monroe County Public Welfare District, intervener.
   Order affirmed, without costs; no opinion.

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


text:
    Susie Villanacci, as Administratrix of the Estate of Edward Villanacci, Deceased, Appellant, v. Henry O. Harding, Respondent.
    Submitted May 29, 1942;
    decided June 18, 1942.

      Robert Arthur Loberfeld and H. Matthew Rallis for appellant.

      Benjamin H. Siff and Morris Levine for respondent.
   Appeal dismissed on the authority of Lee v. Gander (271 N. Y. 568) and Gibbons v. Schwartz (288 N. Y.612). No opinion.

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


text:
    Betty L. Schmelzel, Respondent, v. Clarence Schmelzel, Appellant.
    (Appeals Nos. 3 and 4.)
    Submitted May 25,1942;
    decided June 18,1942.

      Sidney M. Wittner for motion.

      J. Fearon Brown opposed.
   Motion denied.


text:
    Max Loewinthan, Appellant, v. Beth David Hospital et al., Respondents, Impleaded with Others.
    ■ Submitted May 25, 1942;
    decided June 18, 1942.

      Sidney M. Wittner for motion.

      David J. Rosen and William A. Michaels opposed.
   Motion for leave to appeal granted as against defendants Ascher and Loventhal, dismissed as to LeVine and Sachs and denied as to all other defendants.


text:
    Frieda S. Miller, as Industrial Commissioner of the State of New York, Respondent, v. Garford Laboratories, Inc., et al., Appellants.
    Submitted June 8, 1942;
    decided June 18, 1942.

      William F. O’Rourke and Harry Schechter for motion.

      George F. Reid opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants file and transmit to this court the papers required by section 577 of the Civil Practice Act and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    In the Matter of the Claim of Ulysses Jenkins against Dump Truck Service et al., Defendants.
    Submitted June 8, 1942;
    decided June 18, 1942.

      Ulysses Jenkins, in person, for motion.

      George J. Hayes and William F. O’Rourke opposed.
   Motion dismissed on the ground this court is without jurisdiction to entertain the motion.


text:
    Frank P. Mack, Appellant, v. Albee Press, Inc., Respondent.
    Submitted June 10, 1942;
    decided June 18, 1942.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 288 N. Y. 623.)


text:
    Pennsylvania Company for Insurance on Lives and Granting Annuities, as Executor of J. Walter Zebley, Deceased, et al., Appellants, v. James L. Kauffman, as Executor of William R. Davis, Deceased, et al., Respondents.
    Submitted June 11, 1942;
    decided June 18, 1942.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 288 N. Y. 625.)


text:
    May Dunseath, as Administratrix of the Estate of David A. Dunseath, Deceased, Appellant, v. Starrett Brothers & Eken, Inc., Respondent.
    Submitted June 15, 1942;
    decided June 18, 1942.
   Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows: “ Judgment of Appellate Division reversed, and judgment of the Trial Term modified by deducting therefrom the sum of $376.56, being interest on the recovery to the date of the entry of the original judgment, and as so modified, affirmed, with costs to the appellant in this court and in the Appellate Division.” (See 288 N. Y. 174.)


text:
    Samuel Kirsch, Appellant, v. City of New York, Respondent.
    Submitted June 15,1942;
    decided June 18, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      Abraham L. Kanter opposed.
   Motion granted and appeal dismissed unless appellant files return on appeal within thirty days, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Max Soshtain, Appellant.
    Submitted June 15, 1942;
    decided June 18, 1942.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the words “ and fine remitted.” (See 288 N. Y. 658.)


author: Per Curiam.

text:
    In the Matter of Flushing Hospital and Dispensary, Respondent. Charles H. Campbell et al., Appellants; L. Gale Hunter et al., Respondents.
    (Submitted May 25, 1942;
    decided June 19, 1942.)
   Per Curiam.

We held that the attempted election of directors in 1941 was invalid and that at the annual meeting in 1942 seven directors must be elected to fill the seven vacancies caused by the failure of any person, nominated in accordance with the by-laws of the hospital, to receive a majority of the votes cast at the election in 1941. Perhaps, however, the opinion and remittitur of the court is open to the construction that at the annual election in 1942 successors to only four directors whose term expired in 1941 must be chosen, in addition to the successors to directors whose term expires in 1942.

Motion for reargument is denied, but in order to remove possible doubt as to the scope of our decision the motion to amend the remittitur is granted. Return of remittitur requested and when returned it will be amended to read as follows: “ Orders modified to provide for the election of successors to seven directors whose term expired in 1941 at the next annual meeting and by striking out the adjudication that the amendment to the by-laws made at the annual meeting of 1933 is invalid, and as so modified affirmed, with one bill of costs to the respondents.” (See 288 N. Y. 125.)

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


author: Lehman, Ch. J.

text:
    In the Matter of Harry M. Williams, as Attorney-in-fact of Henry M. Williams, Respondent, against Patrick Walsh, as Fire Commissioner of the City of New York et al., Appellants.

      Argued June 17, 1942;
    decided July 29, 1942.

      William, C. Chanler, Corporation Counsel (Jeremiah M. Evarts, Oscar L. Tucker and Abraham Shapiro of counsel) for appellants.
    City fireman Williams has no rights under section 245 of the Military Law. (Cons. Laws, ch. 36). (Stevens v. Village of Endicott, 264 App. Div. 4; Op. Atty.-Gen. 1940, p. 227.) The application of section 245, as construed by the Appellate Division, results in an arbitrary and unreasonable discrimination among public employees serving in the armed forces. (Hoyt v. County of Broome, 285 N. Y. 402; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150; Atchison, Topeka & Santa Fe R. R. Co. v. Matthews, 174 U. S. 96; Smith v. Texas, 233 U. S. 630; Hartford Co. v. Harrison, 301 U. S. 459; Matter of Merchants Refrigerating Co. v. Taylor, 275 N. Y. 113; People v. Crane, 214 N. Y. 154; Matter of Keymer, 148 N. Y. 219; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Smith v. Texas, 233 U. S. 630; Matthews v. Matthews, 240 N. Y. 28; Tauza v. Susquehanna Coal Co., 220 N. Y. 259; Hovey v. De Long H. & E. Co., 211 N. Y. 420; United States v. Jin Fuey Moy, 241 U. S. 394; United States v. Delaware & Hudson Co., 213 U. S. 366; Matter of Meyer, 209 N. Y. 386.) The Fire Commissioner had the power to promulgate regulations designed to compel members of the department to be available for fire duty at all times and to prohibit members thereof from joining a military reserve organization while employed in the Fire Department. (Matter of Smith v. Valentine, 246 App. Div. 578.)

      Malcolm J. Hartsell and Parnell J. T. Callahan for respondent.
    Fireman Williams secured the status of a member of a military reserve organization covered by the provisions of section 245 of the Military Law while an employee of the Fire Department of the City of New York. (Cons. Laws, ch. 36.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John C. Crary, Jr., of counsel),
    for State of New York, amicus curise. Nothing in the history or language of the statute limits it to reserve status acquired in time of peace. (Hoyt v. Broome County, 285 N. Y. 402.)
   Lehman, Ch. J.

Henry M. Williams, a fireman, first grade, in the Fire Department of New York City, enlisted in the United States Marine Corps Reserve on January 26, 1942. He had filed an application for enlistment on November 27, 1941, without the knowledge or consent of his superior officers in the Fire Department. He reported for physical examination on January 14, 1942. By written notice dated January 22, 1942, he was informed officially that he was “ eligible for enlistment in the Marine Corps ” and that if he would present himself at the office of the Corps “ with your birth certificate and release from your local draft board, we will complete your enlistment and immediate transfer to active duty.” His enlistment was completed on January 26th and immediately he was “ ordered to report for active service ” on January 27, 1942. Since then he has been on active service with the armed forces of the United States.

At the time of the enlistment .the Military Law (Cons. Laws, ch. 36, § 245, subd.l) provided:

“ 1. Every officer and employee of the state or of a municipal corporation or of any other political subdivision thereof who is a member of the national guard or naval militia, or a member of the reserve corps or force in the federal military, naval or marine service, shall be entitled to absent himself from his duties or service while engaged in the performance of ordered military or naval duty, and while going to and returning from such duty. Notwithstanding the provisions of any general, special or local law or the provisions of any city charter, no such officer or employee shall be subjected by any person whatever directly or indirectly by reason of such absence to any loss or diminution of vacation or holiday privilege or be prejudiced by reason of such absence with reference to promotion or continuance in office or employment or to reappointment to office or to re-employment. During the absence of any such officer or employee, while engaged in the performance of ordered military or naval duty as a member of the national guard or naval militia, or as a member of the reserve corps or force in the federal military, naval or marine service, he shall receive his salary or compensation as such officer or employee, provided the period of such absence in any calendar year does not exceed thirty days. If the period of such absence in any calendar year exceeds thirty days he shall receive for the period of absence in excess of thirty days such part of his salary or compensation as such officer or employee as equals the excess, if any, of such salary or compensation paid to him for the performance of such duty.”

The benefits accorded by that statute constitute one of the terms of the employment of every employee of the State or of a municipal corporation. (Hoyt v. County of Broome, 285 N. Y. 402.) The petitioner, Harry M. Williams, is the father of Henry M. Williams, and, acting under a power of attorney executed by Henry M. Williams, he brought a proceeding under article 78 of the Civil Practice Act to obtain an order directing that the name of Henry M. Williams be carried upon the records of the Fire Department as “ absent with leave upon Military Duty,” and that his full salary be paid to Henry M. Williams or to his designee for the first thirty days of his absence upon military service and thereafter such part of his salary “ as equals the excess of such salary over and above the salary he is receiving for the performance of his Military duties, so long as he shall remain in the active Military Service of the United States.” The petition was dismissed at Special Term but upon appeal to the Appellate Division the order was reversed and the petition was granted.

Employees of the State or city who were members of the National Guard or Naval Militia or of the reserve corps or force in the federal military, naval or marine service ” prior to the date in December, 1941, when the United States declared war, have a right, which is no longer subject to serious challenge, to the privileges and benefits granted to them under the terms of the Military Law. (Hoyt v. County of Broome, supra.) The defendants, representing the City of New York, contend that employees who become members after that date are entitled to no such benefits. On December 15, 1941, the Fire Commissioner, with the approval of the Mayor, promulgated a special order that no application for permission to enlist in the armed forces would be granted to members of the Fire Department. Williams enlisted thereafter without such permission. For these reasons the claim made in his behalf was rejected by the city.

We are told that the special order of the Fire Commissioner was promulgated “ because it was deemed essential for the defense of the City that members of the Fire Department should continue in the department during the war between the United States and the Axis powers.” We may assume that there is good reason why members of the Fire Department should continue during the war to perform the duties, for which they have received special training, in an organization which might be called upon to perform an essential defense service which it alone could efficiently perform. We assume, too, that within the limits of the powers granted by statute to the Fire Commissioner, he may promulgate orders calculated to retain such men in his department. The Military Law, by its express terms, limits the administrative powers of State or city officers, granted to them by other statutes. No order or rule may be promulgated by which the privileges and benefits granted to certain employees by section 245 of the Military Law may be denied or diminished. The serious question which arises upon this appeal is whether that section was intended to confer special privileges or benefits upon employees who became members of the reserve corps after war was declared.

The privileges and benefits accorded by this section are not in terms limited to those who became members of the reserve corps or force in times of peace but the court at Special Term, after a careful review of the history of the section and the amendments made from time to time by the Legislature, has concluded that:

“ Both iffiits original passage and the subsequent amendments to subdivision 1, it is clear that the Legislature was concerned with ordered duty arising out of peacetime membership in the National Guard or naval militia, or, as subsequently provided, in duty arising out of peacetime membership in the federal reserve forces.

“ To avail oneself of the benefits of that law a person must have been (1) a member of the National Guard or of the federal reserve forces concurrently with his civilian employment, and (2) must have been ordered compulsorily to absent himself from civilian duty because of such membership, not because of his volunteering for duty.”

Doubtless in 1911, when the Legislature first enacted section 245 of the Military Law, protecting officers and employees of the State or of a municipal corporation in the National Guard or Naval Militia from loss of salary or employment while absent on ordered duty (L. 1911, ch. 103), the prospect that the United States might ever be involved in a great war seemed remote and any suggestion that the United States would be involved in a war in which the entire man power of the country would be drafted for selective service would have seemed fantastic. Doubtless, too, the Legislature was concerned, primarily, with ordered duty arising out of peacetime membership in the National Guard or naval militia, or, as subsequently provided, in duty arising out of peacetime membership in the federal reserve forces.” The statute • adopted by the Legislature, was nonetheless, broad enough to include ordered service ” in war time as well as in peace time if the unexpected should occur and the country become involved in war. Indeed, even now it is not disputed that the intent of the Legislature as formulated in the statute was to provide against loss of salary or employment through “ ordered duty ” in war time where an officer or employee had become a member of the reserve forces during peace time; — the city contends only that we must read into the statute by necessary implication a provision that the benefits and privileges accorded by the statute must be confined to those who were members of the National Guard or the Naval Militia or the reserve forces at the date when war was declared.

We find no sound basis for any such implication. True, enlistment in the reserve forces in war time may be equivalent to enlistment for immediately ordered active duty. When every citizen is subject to draft for selective service in the country’s war effort, there may be doubt as to the soundness of a public policy which gives to a person who enters the armed service through voluntary enlistment in the reserve force a benefit or special privilege not accorded to one who enters the armed service through the selective service draft. We may assume, for the purpose of this appeal, that if the Legislature had foreseen that the time might come when this country would be engaged in a total war to preserve its freedom and the entire man power of the country would be registered and subject to call for selective service, it might not have enacted section 245. Perhaps then it might have refused to draw any distinction between employees inducted into the service under a Selective Service Law and those who entered the service through voluntary enlistment in a reserve force and might have chosen as matter of policy to grant or deny benefits to all alike. The Legislature did indeed, by chapter 255 of the Laws of 1942 (effective April 1, 1942), amend subdivision 1 of section 245, to provide that only those public employees who are members of the National Guard or Naval Militia or of the reserve corps or force “ on or before the date this subdivision as hereby amended takes effect ” shall be entitled to the privileges and benefits accorded by the subdivision. Thus, those thereafter entering the military service by enlistment in the reserve force or corps enjoy no advantage over those inducted into the military service through other channels. The amendatory statute left untouched the privileges and benefits of those public employees who had been placed in a special catagory by prior membership in the reserve force or corps pursuant to the provisions of the existing statute. That statute had not restricted the special category to those who had become members before a declaration of war. The amendatory statute does not suggest any distinction between those who had joined before and those who joined after such declaration. It is difficult to find any ground upon which the court would be justified in reading into the statute a distinction or restriction which the Legislature did not express, even though perhaps the Legislature might have enacted a different statute if it had conceived the possibility that conditions analogous to those created by the present war would ever exist.

Until those new and, perhaps, unanticipated, conditions arose, the grant of special benefits and privileges was concededly valid and involved no arbitrary discrimination. There was reasonable ground for the determination by the Legislature that the State would receive adequate benefit from such a grant to all within the class defined by the Legislature. No person, within or without that class, is deprived of the equal protection of the law, even if we assume that with equal reason the Legislature might now grant the same privilege to other classes or might conclude to deny it to all. Determination of such questions is, under the Constitution, confided to the Legislature. “ These considerations address themselves to the law-making power if not to the courts. Assuming that all might be included, on judicial review, a classification is not held to be bad because it is not comprehensive.” (People ex rel. Bryant v. Zimmerman, 241 N. Y. 405, 412.) “A class may lawfully be restricted if the lines defining the restriction are not arbitrary altogether and the rule to be applied within them is uniform and even.” (People v. Teuscher. 248 N. Y. 454, 459.) The court there was considering the validity of limitations upon freedom of action imposed by the Legislature under the police power. The same rule applies, with greater force, where there has been a grant of special benefit on reasonable grounds to a restricted class, and the conditions which might justify the extension of the limits of such class arose later. No substantial constitutional question is presented upon this appeal. The problem is solely one of statutory construction, and we may not by implication read into the statute limitations not expressed, and, so far as appears, not contemplated by the Legislature.

The order should be affirmed, with costs.

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

Order affirmed.