text:
    Weirfield Holding Corporation, Appellant, v. Pless & Seeman, Inc., et al., Respondents, Impleaded with Others.
    (Argued June 14, 1931;
    decided July 15, 1931.)

      William, Gold and George Goldberg for appellant.

      Eugene J. Noyes for Yandophal Holding Corporation, respondent.
   Judgment of the Appellate Division and that of the Special Term reversed and judgment ordered in favor of plaintiff for the relief demanded in the complaint, with costs in all courts, on authority of Graf v. Hope Bldg. Corp. (254 N. Y. 1); no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Osias Weisthal, Respondent, v. Arena Building Corporation, Appellant.
    (Argued June 12, 1931;
    decided July 15, 1931.)

      Everett F. Warrington for appellant.

      Fred P. Harrington and Manley J. Greenwald for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Burke, an Infant, by Irving W. Teller, His Guardian ad Litem, Appellant, v. Earl Barker, Respondent.
    (Argued June 12, 1931;
    decided July 15, 1931.)

      David James for appellant.

      Francis D. McCurn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Isaac Reiss et al., as Executors of Albert Simon, Deceased, Respondents. Adele L. Lewengood, as Guardian of Meryl A. Simon, Respondent; Grace Simon, Appellant.
    (Submitted June 12, 1931;
    decided July 15, 1931.)

      Thomas I. Sheridan and Daniel J. Madigan for appellant.

      Lloyd B. Kanter for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Hydraulic Race Company, Respondent, v. Frederick S. Greene, Individually and as Superintendent of Public Works of the State of New York, et al., Appellants, Impleaded with Others.
    (Argued June 15, 1931;
    decided July 15, 1931.)

      John J. Bennett, Jr., Attorney-General (Paul Shipman Andrews and Charles A. Russell of counsel), for appellants.

      Henry W. Killeen, Warren Tubbs and Francis J. Maloney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Scheer Realty Company, Inc., Respondent, v. James A. Higgins, Commissioner of Accounts of the City of New York, Appellant.
    (Submitted June 16, 1931;
    decided July 15, 1931.)

      Arthur J. W. Hilly, Corporation Counsel (Leonard M. Wallstein, William E. C. Mayer, J. Joseph Lilly and Ralph M. Frink of counsel), for appellant.
    No one for respondent.
   Order of the Appellate Division and that of Special Term reversed, with costs in the Appellate Division and in this court, and the motion to vacate the subpoenas denied, with ten dollars costs, on the authority of Matter of Edge Ho Holding Corp. (256 N. Y. 374); no opinion.

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


text:
    Matthew A. Heeran, Respondent, v. Clarence McNally, as Mayor of the City of Rensselaer, et al., Appellants.
    (Submitted June 16, 1931;
    decided July 15, 1931.)

      John J. Scully for appellants.

      Daniel J. Dugan and Isadore Bookstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Maryland Casualty Company, Appellant, v. Schaefer Construction Company, Defendant, and Ætna Casualty and Surety Company et al., Respondents.
    (Submitted June 15, 1931;
    decided July 15, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 256 N. Y. 663.)


text:
    Wacil Bible, Respondent, v. The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Appellant.
    (Submitted July 15, 1931;
    decided July 15, 1931.)
   Motion for a reargument denied, with ten dollars costs and necessary printing disbursements. (See 256 N. Y. 458.)


author: Per Curiam.

text:
    The People of the State of New York ex rel. Levy Brothers Realty Company, Appellant, v. William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.
    (Submitted June 11, 1931;
    decided July 15, 1931.)
   Per Curiam.

Section 719-a, subdivision 5, of the Charter of the City of New York provides: “ Costs shall not be allowed against the board [of standards and appeals], unless it shall appear to the court that it acted with gross negligence or in bad faith or with malice in making the decision appealed from.” (Laws of 1916, ch. 503.)

The context makes it plain that this provision was designed to govern the award of costs by the Special Term of the Supreme Court or by a justice thereof in disposing of a petition to review a decision of the Board (Charter, § 719-a, subds. 1 and 2).

It has no application to costs in the Appellate Division or in this court.

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


text:
    In the Matter of the Application of The People of the State of New York, by James A. Beha, as Superintendent of Insurance, Respondent, for an Order to Take Possession of the Property of the Moscow Fire Insurance Company of Moscow, Russia, Appellant.
    (Submitted July 15, 1931;
    decided July 15, 1931,)
   Per Curiam.

An amendment of the remittitur is unnecessary.

The intention of the court was to permit a period of four months to intervene between the lifting of the injunction whereby creditors had been denied the opportunity of enforcing their demands and the delivery of the surplus by the Superintendent of Insurance to the several corporations whose assets had been liquidated, whether represented by a quorum of the board of directors or by less than a quorum acting as conservators.

The motion should be denied.


text:
    The People of the State of New York ex rel. Samuel Falk, Appellant, v. The Sheriff of the County of New York, Respondent.
    (Argued July 31, 1931;
    decided August 10, 1931.)

      Ho Orleans and Samuel Falk for appellant.

      Samuel Seabury, George Trosk, Harland B. Tibbetts and Sidney Handler for respondent.
   Order affirmed; no opinion.

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


text:
    Samuel L. Goldstein, Respondent, v. Jacob Shapiro, Appellant.
    (Submitted September 28, 1931;
    decided October 6, 1931.)]
   Motion for a reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 256 N. Y. 479.)


text:
    The Cuneo Eastern Press, Inc., Appellant, v. Barnett Astrowsky et al., Respondents, Impleaded with Others.
    (Submitted September 28, 1931;
    decided October 6, 1931.)

      Irving R. Kass for motion.

      Carroll G. Walter opposed.
   Motion denied, without prejudice to its renewal upon the argument of the appeal.


text:
    Ertrob Realty Corporation, Appellant, v. 33 West 44th Street Corporation, Respondent.
    (Submitted September 28, 1931;
    decided October 6, 1931.)

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


text:
    Robert F. Ward, Respondent, v. Iroquois Gas Corporation, Appellant, and International Railway Company, Respondent.
    (Argued September 28, 1931;
    decided October 6, 1931.)

      Hamilton Ward and Noel S. Symons for motions.

      W. I. Morey opposed.
   Motion to dismiss appeal of Iroquois Gas Corporation as against the defendant International Railway Company denied, without costs and without prejudice to its renewal upon the argument of the appeal.

Motion to dismiss appeal of Iroquois Gas Corporation a:s ■ against respondent Robert F. Ward denied, with ten dollars costs.


text:
    James H. Cassidy, Respondent, v. Dairy Products Service Station, Inc., Appellant.
    (Submitted September 28, 1931;
    decided October 6, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 257 N. Y. 527.)


text:
    William H. McDonald, Respondent, v. Amsterdam Building Company, Appellant.
    (Submitted September 28, 1931;
    decided October 6, 1931.)

      Thomas F. Frawley for motion.

      Albert Foreman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that the appeal was improperly taken from the order of the Appellate Division and not from the final judgment.


text:
    Orange National Bank et al., Respondents, v. 2235 Webster Avenue Corporation et al., Defendants, and 6802 Ridge Boulevard Corporation, Appellant.
    (Submitted September 28, 1931;
    decided October 6, 1931.)

      Morris A. Babinovitch for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of The Manlius School, Respondent, against Irving C. Adams et al., Assessors of the Town of Manlius, Appellants. (Proceedings 1, 2, 3 and 4.)
    (Argued September 28, 1931;
    decided October 13, 1931.)

      William H. Harding for appellants.

      Benjamin E. Shove for respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    Harry D. Neier, Plaintiff, v. Droesch Realty Corporation, Appellant. Arthur Morris, Respondent.
    (Argued September 28, 1931;
    decided October 13, 1931.)

      Jacob A. Visel, Harry A. Horton and Joseph P. Slensby for appellant.

      Abraham Lilienthal and Arthur Morris for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Honour B. Gelson, Respondent, against Charles W. Berry, as Comptroller of the City of New York, Appellant.
    (Argued September 29, 1931:
    decided October 13, 1931.)

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Willard S. Allen of counsel), for appellant.

      James J. McLoughlin, Peter P. Smith and John J. Kane for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Matthew Peters, Appellant, for Admission to the Bar. Patrick C. Dugan et al., Composing the Committee on Character and Fitness for the Third Judicial Department, Respondents.
    (Argued September 29, 1931;
    decided October 13, 1931.)

      Matthew Peters, appellant in person.

      Patrick C. Dugan for respondents.
   Appeal dismissed; ho opinion.

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


text:
    In the Matter of The New York Central Railroad Company, Respondent, against Edward J. Flynn, as Secretary of State of the State of New York, Appellant.
    (Argued September 29, 1931;
    decided October 13, 1931.)

      John J. Bennett, Jr., Attorney-General (Harold P. Burke of counsel), for appellant.

      Frank A. McNamee, Jr., and Robert E. Whalen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Guisippina Parascandola, as Administratrix with the Will Annexed of the Estate of Joseph Auditore, Deceased, Respondent. National Surety Company, Appellant.
    (Submitted September 29, 1931;
    decided October 13, 1931.)

      James F. Donnelly and Mark Eisner for appellant.

      Edward H. Wilson and John J. Kean for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    New York Business Buildings Corporation, Respondent, v. James McCutcheon and Company, Appellant, Impleaded with Another.
    (Argued September 30, 1931;
    decided October 13, 1931.)

      I. Maurice Wormser and George Thoms for appellant.

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

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


text:
    Arnold R. Hanson et al., Individually, and as Copartners under the Firm Name of Hanson & Hanson, Appellants, v. National Surety Company, Respondent.
    (Submitted October 5, 1931;
    decided October 13, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 257 N. Y. 216.)


text:
    Brooklyn United Theatre, Inc., Respondent, v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators’ Union, Appellant.
    (Argued October 8, 1931;
    decided October 20, 1931.)

      Jeremiah T. Mahoney and Vincent L. Leibell for appellant.

      Harold R. Medina, William F. McNulty and Joseph A. Teperson for respondent.

      Frank T. Walsh and Gardner Conroy for William F. Canavan, president of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators’ Union, amicus curies.

   Judgment modified in accordance with memorandum in Steinkritz Amusement Corp. v. Kaplan (257 N. Y. 294), and as modified afiirmed, without costs; no opinion.

Concur: Pound, Crane, Kellogg, O’Brien and Hubbs, JJ.; Cardozo, Ch. J., and Lehman, J., vote for further modification in accordance with their vote in Steinkritz Amusement Corp. v. Kaplan.


text:
    Paul Moscou, Respondent, v. Ætna Casualty and Surety Company, Appellant. Paul Moscou, Respondent, v. The Southern Sugar Company, Appellant.
    (Argued September 30, 1931;
    decided October 20, 1931.)

      R. Randolph Hicks, Barent Ten Eyck and Walter H. Saunders, Jr., for appellants.

      Bennett E. Siegelstein for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Nicholas Voevodine, Appellant, v. Government of the Commander-in-Chief of the Armed Forces in the South of Russia, Defendant, and Peter A. Morosoff, Respondent.
    (Submitted September 30, 1931;
    decided October 20, 1931.)

      Borris M. Komar for appellant.

      Frederic R. Couderi, Jr., and Mahlon B. Doing for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George T. Butler, Appellant, v. John H. Leadley Co., Inc., Respondent.
    (Argued September 30, 1931;
    decided October 20, 1931.)

      Joseph P. Walsh and Frank H. Innes for appellant.

      James Burke for respondent. .
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel Lefkowitz, Appellant.
    (Argued October 1, 1931;
    decided October 20, 1931.)

      I. Nicholas Gordon for appellant.

      Thomas C. T. Crain, District Attorney (.Robert C. Taylor of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    J. Lester Kinney, Appellant, v. W. Harry Glenny et al., Respondents.
    (Argued October 1, 1931;
    decided October 20, 1931.)

      Frank G. Raichle and J. C. Randal for appellant.

      •James McCormick Mitchell, William I. Morey and Elmer E. Finck for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Skinner Bros. Manufacturing Co., Inc., Appellant, v. Shevlin Engineering Company, Inc., Defendant, and New York Rapid Transit Corporation et al., Respondents.
    (Argued October 1, 1931;
    decided October 20, 1931.)

      Harry Merwin and John F. Collins for appellant.

      D. A. Marsh and George D. Yeomans for New York Rapid Transit Corporation, respondent.

      William J. McArthur for United States Fidelity and Guaranty Company, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bernhard Ulmann Company, Inc., Appellant, v. Central Union Trust Company of New York et al., Respondents.
    (Argued October 1, 1931;
    decided October 20, 1931.)

      David S. Konheim and'William Lurie for appellant.

      Abraham Schachewitz and William J. McArthur for Central Union Trust Company, respondent.

      James B. M. McNally for Morris Benedon et al., respondents.

      Platt K. Wiggins for National City Bank, respondent.

      Morris Hillquit, I. Henry Kutz and Nathaniel J. Palzer for Federal Reserve Bank of New York et al., respondents.
   Judgment of the Appellate Division and that of the Trial Term reversed and new trial granted, with costs to abide the event, on the authority of Strang v. Westchester County Nat. Bank (235 N. Y. 68) and United Cigar Stores Co. v. American Raw Silk Co. (184 App. Div. 217; 229 N. Y. 532), the case of Hartford v. Greenwich Bank (157 App. Div. 448; 215 N. Y. 726) being so inconsistent in principle with the cases cited that it must now be overruled; no opinion.

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


text:
    Modern Investment and Loan Corporation, Appellant, v. Walter M. Levett et al., Defendants, and Morris I. Price, Respondent.
    (Argued October 1, 1931;
    decided October 20, 1931.)

      Louis Epstein, David I. Shivitz and Samuel L. Marcus for appellant.

      Jacob Markowitz and William Walter Frankel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Richard F. Perry, Respondent, v. William B. Wrone, Appellant.
    (Argued October 1, 1931;
    decided October 20, 1931.)

      John J. Scully for appellant.

      John L. Moore and Philip J. Cirillo for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Silas E. Kingsley, Respondent, v. Silver’s Lunch Stores, Inc., Appellant.
    (Argued October 2, 1931;
    decided October 20, 1931.)

      I. Maurice Wormser, Gustav Nadel and Henry M. Flateau for appellant.

      Bernard Hershkopf and Isidor J. Kresel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Minerva Sauerbier, as Administratrix of the Estate of Devillo Sauerbier, Deceased, Respondent, v. Elmer Zeh et al., Appellants.
    (Argued October 2, 1931;
    decided October 20, 1931.)

      W. Earle Costello for appellants.

      Robert E. Cole for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles McCarthy, Appellant.
    (Submitted October 2, 1931;
    decided October 20, 1931.)

      Sidney S. Meyers and Jacob J. Sachs for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Arthur H. Kerns of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Thomas McKay, Appellant.
    (Submitted October 2, 1931;
    decided October 20, 1931.)

      William P. Thomas for appellant.

      Charles B. McLaughlin, District Attorney (Sol. Boneparth and Herman J. Fliederblum of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Louis Dubner, Respondent, v. Jamaica Puntine Leasehold Corporation, Defendant, and Toma Development Company, Inc., Appellant.
    (Submitted October 2, 1931;
    decided October 20, 1931.)

      Frank W. Holmes for appellant.

      David Olickman and Edgar F. Hazleton for respondent.
   Order affirmed, with costs; questions certified answered in the affirmative; no opinion.

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


text:
    Charles S. Hirsch et al., Copartners, Doing Business as Hirsch, Lillienthal & Co., Respondents, v. George L. Deschler, Appellant.
    (Argued October 6, 1931;
    decided October 20, 1931.)

      Reuben Tally for appellant.

      Herbert R. Limburg, Lionel S. Popkin and John A. Sherman for respondents.
   Judgment affirmed, with costs, on the ground that the contract relied upon by the defendant was so extraordinary as to be in excess of the authority of the plaintiff’s manager; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Romano Antichi, Appellant.
    (Argued October 6, 1931;
    decided October 20, 1931.)

      George S. Leisure and Clifton F. Weidlich for appellant.

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

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


text:
    Mary C. McNamara, Appellant, v. New York State Railways, Defendant. Metropolitan Casualty Insurance Company of New York Respondent.
    (Submitted October 19, 1931;
    decided October 20, 1931.)

      Carlton F. Bown for motion.

      Percival D. Oviatt opposed.
   Motion granted .and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Charles Kalfayan, Respondent, v. Compagnie Francaise de Navigation a Vapeur (Cyprien Fabre et Cie), Appellant.
    (Argued October 13, 1931;
    decided October 23, 1931.)

      Morton L. Feary and N. M. Barron for appellant.

      Arthur T. O’Leary for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed, with costs in all courts on the ground that the evidence does not sustain a finding of the defendant’s negligence; no opinion.

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


text:
    In the Matter of Tri-State Investors Corporation, Appellant, v. Frederick McH. Kitching et al., Defendants. Elizabeth F. Vilkomerson, Respondent.
    (Argued September 29, 1931;
    decided October 23, 1931.)

      Albert Adams and Samuel Meyers for appellant.

      Elizabeth F. Vilkomerson and C. Arthur Jensen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for an Addition to Fort Washington Park, in the Borough of Manhattan. Empire Mortgage Company, Appellant.
    (Argued September 29, 1931;
    decided October 23, 1931.)

      Henry DeForest Baldwin, Franklin Qrady and Woodson D. Scott for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Eleanor G. Sullivan, Appellant, against Teachers’ Retirement Board, Respondent.
    (Submitted September 29, 1931; decided
    October 23, 1931.)

      J. M. Cohen for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, William E. C. Mayer and Vine H. Smith of counsel), for respondent.
   Appeal dismissed, without costs, on the ground that the order appealed from is a unanimous decision of the Appellate Division and not an order of modification; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Rudolph C. Duringer, Appellant.
    (Argued October 5, 1931;
    decided October 23, 1931.)

      Walter A. Lynch, Thomas H. McManus and Carl Pack for appellant.

      Charles B. McLaughlin, District Attorney (Sol. Boneparth and Herman J. Fliederblum of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Luiggi Montello, Appellant, v. Kraus & Silverman, Respondent.
    (Argued October 7, 1931;
    decided October 23, 1931.)

      James F. Donnelly, Alfred W. Andrews and T. J. Gillen for appellant.

      HaroldB. Medina, HaroldB. Oakes, WilliamF. McNulty and Wiliam Butler for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and new trial granted, with costs to abide the event, upon the ground that the evidence, unexplained, is sufficient to sustain an inference by the jury that the hammer striking the plaintiff was dropped by the defendant’s servant; no opinion.

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


text:
    Sari E. Fein, Respondent, v. Paul Fein, Appellant.
    (Submitted October 9, 1931;
    decided October 23, 1931.)

      Karl Propper for appellant.

      Cecile Scheuer for respondent.
   Appeal dismissed, with costs, on the ground that the appeal has been taken from the order of the Appellate Division and not from the judgment entered thereon; no opinion.

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


text:
    Philip Lippe, Appellant, v. John L. Fink, Respondent.
    (Submitted October 9, 1931;
    decided October 23, 1931.)

      Irving L. Rollins for appellant.

      Herman B. Forman and Thilo C. Schulze for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Homer C. Gardner, Appellant, v. John J. Ginther et al., Comprising the Board of Education of Central School District No. 1 of the Towns of Sweden, Ogden, Parma and Clarkson, Monroe County, and Clarendon and Murray, Orleans County, Respondents.
    (Argued October 16, 1931;
    decided October 23, 1931.)

      Leon A. Plumb and William MacFarlane for appellant.

      James Mann for respondents.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Harold Greenstein of counsel), for the State of New York.

      Ernest E. Cole and Irwin Esmond for the Commissioner of Education of the State of New York, amicus curiae.

   Judgment affirmed, with costs; no opinion.

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


text:
    Alexander Polin, Appellant, v. Sam Kaplan, as President of Moving Picture Machine Operators’ Union of Greater New York, Local No. 306, Respondent. Charles Schneider, Appellant, v. Sam Kaplan, as President of Moving Picture Machine Operators’ Union of Greater New York, Local No. 306, Respondent.
    (Submitted October 19, 1931;
    decided October 23, 1931.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 257 N. Y. 27.)


text:
    In the Matter of New York, Westchester and Boston Railway Company, Appellant, against William G. Fullen et al., Constituting the Transit Commission of the State of New York, Respondents.
    (Submitted October 19, 1931;
    decided October 23, 1931.)

      Edward M. Deegan, Joseph A. Devery and Harry Lesser for motions.

      Madison G. Gonterman opposed.
   Motions granted and appeal dismissed, with costs and ten dollars costs of motions.


text:
    Sallie V. Kilroy, Respondent, v. United States Fire Insurance Company of New York, Appellant.
    (Submitted October 19, 1931;
    decided October 23, 1931.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 257 N. Y. 520.)


text:
    The People of the State of New York, Respondent, v. Benjamin Gordon, Appellant.
    (Argued October 5, 1931;
    decided November 17, 1931.)

      Leonard J. Obermeier for appellant.

      Charles B. McLaughlin, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Israel J. P. Adlerman of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Benardi, Joseph Cioffi, Thomas Nucito, Joseph Panzarino and Vincent Battista, Appellants.
    (Argued October 5, 1931;
    decided November 17, 1931.)

      Leo H. Klugherz, Albert H. Vitale and William J. Vitale for George Benardi, Joseph Cioffi and Vincent Battista, appellants.

      Arnold M. Goldstein and Samuel Goldstein for Thomas Nucito, appellant.

      Louis Busman and J. M. Cohen for Joseph Panzarino, appellant.

      Charles B. McLaughlin, District Attorney (Sol. Boneparth and Herman J. Fliederhlum of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Cakdozo, Ch. J., Pound, O’Brien and Hubbs, JJ. Crane, Lehman and Kellogg, JJ., dissent and vote for a new trial as to the defendant Panzarino, but concur as to the other defendants.


text:
    The People of the State of New York, Respondent, v. Guiseppe Caricari and Alfonso Corrato, Appellants.
    (Argued October 7, 1931;
    decided November 17, 1931.)

      Mortimer C. O’Brien for Guiseppe Caricari, appellant.

      Charles E. Doyle for Alfonso Corrato, appellant.

      Frank H. Coyne, District Attorney (James E. Dempsey of counsel), for respondent.
   Judgment of conviction affirmed as to each defendant; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Francis Crowley, Appellant.
    (Argued October 7, 1931;
    decided November 17, 1931.)

      Charles R. Weeks and George A. Gibson for appellant,

      Elvin N. Edwards, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Senna, Appellant.
    (Argued October 8, 1931;
    decided November 17, 1931.)

      Herman Hoffman and Samuel J. Joseph for appellant.

      Charles B. McLaughlin, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Israel J. P. Adlerman of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Resko, Appellant.
    (Argued October 8, 1931;
    decided November 17, 1931.)

      James A. Sullivan, Herman Albert and William P. Thomas for appellant.

      Charles B. McLaughlin, District Attorney (Sol. Boneparth, Herman J. Fliederblum and Samuel J. Foley of counsel), for respondent,
   Judgment of conviction affirmed; no opinion.

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


text:
    Juanita C. Hansen, Respondent, v. United Stores Realty Corporation et al., Defendants, and Theatre Zone Realty Co., Inc., et al., Appellants.
    (Argued October 9, 1931:
    decided November 17, 1931.)

      Edward P. Mowton for appellants.

      Arthur K. Wing, M. Vartan Malcom and James G. Purdy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Kardonsky, as Administrator of the Estate of Barnett Kardonsky, Deceased, Respondent, v. James Tozzi, Trading under the Name of James Tozzi & Co., Appellant.
    (Argued October 12, 1931;
    decided November 17, 1931.)

      Samuel J. Levinson and Frank Weinstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Coleman R. Chamberlin, Respondent, v. Antonio Cirrincione, Appellant.
    (Argued October 12, 1931;
    decided November 17, 1931.)

      Frank M. Wilcox and Clarence E. Méllen for appellant.

      Samuel L Argent, Milton R. Weston and S. Leighton Frooks for respondent.
   Judgment affirmed with costs; no opinion.

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


text:
    Manx Taxi Holding Company, Inc., Respondent, v. Hugo Hoffman Credit Corporation, Appellant, Impleaded with Others.
    (Argued October 12, 1931;
    decided November 17, 1931.)

      Henry C. Burnstine, Emanuel J. Freiberg and Roy Plant for appellant.

      Nathan Kelmenson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Philip Tamburrino, Respondent, v. Jayen Building Corporation, Appellant, Impleaded with Others.
    (Argued October 12, 1931;
    decided November 17, 1931.)

      Frederick Mellor for appellant.

      Jay Leo Rothschild, Louis Rivkin and Joseph Silber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rose Miller, as Administratrix of the Estate of John Miller, Deceased, Respondent, v. Amalgamated Laundries, Inc., Appellant.
    (Argued October 12, 1931;
    decided November 17, 1931.)

      Arthur K. Wing, James G. Purdy and John H. Brogan for appellant.

      Jay Leo Rothschild, Louis Rivkin and Joseph Silber for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Salvatore Citarella, Respondent, v. President and Directors of the Manhattan Company et al., Appellants.
    (Argued October 13, 1931;
    decided November 17, 1931.)

      Walter M. Hinkle, Jerome S. Hess, Irving I. Goldsmith and John D. Beals, Jr., for appellants.

      Anthony J. Romagna and Arthur H. Prints for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William H. Horan, Respondent, v. John F. MacDonald, Appellant.
    (Argued October 13, 1931;
    decided November 17, 1931.)

      Daniel"Mungall for appellant.

      Harold R. Medina, John W. Jordan and William B. Thompson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Cuneo Eastern Press, Inc., Appellant, v. Barnett Astrowsky et al., Respondents, Impleaded with Others.
    (Argued October 13, 1931;
    decided November 17, 1931.)

      Carroll G. Walter for appellant.

      Irving R. Kass and Myron Slater for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    The Lehigh Valley Rail Way Company, Appellant and Respondent, v. American Radiator Company, Respondent and Appellant.
    (Argued October 13, 1931;
    decided November 17, 1931.)

      H. S. Ogden for plaintiff, appellant and respondent.

      Daniel Day Walton for defendant, respondent and appellant.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Marion Z. Anderson, as Executrix of Edward N. Anderson, Deceased, Respondent. Edmund F Driggs, Appellant.
    (Argued October 13, 1931;
    decided November 17, 1931.)

      Edmund F. Driggs and Frank W. Holmes for appellant.

      William M. Winans and G. W. Winans for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    George Batto et al., Appellants, v. Westmoreland Realty Co., Inc., Respondent, Impleaded with Another.
    (Argued October 14, 1931;
    decided November 17, 1931.)

      Stephen Callaghan and Selma M. Ldbsenz for appellants.

      Harold L. Smith, William T. Gossett, E. Myron Bull and Andrew E. Stewart for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Imar Mortgage Corporation, Respondent, v. Ticoli Realty Corporation et al., Defendants, and Stetson Realty Corporation, Appellant.
    (Argued October 14, 1931:
    decided November 17, 1931.)

      David S. Elgot and Walter J. Loria for appellant.

      Alexander Pfeiffer and Joseph Lotterman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rex Novelty Works, Inc., Respondent, v. Southern Surety Company of New York, Appellant.
    (Argued October 14, 1931:
    decided November 17, 1931.)

      Daniel Combs for appellant.

      Jerome A. Strauss for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Delbert Russell, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    (Argued October 15, 1931;
    decided November 17, 1931.)

      Howard Cobb for appellant.

      Merwin W. Lay for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Cotro, Respondent, v. Nappi Holding Corporation, Appellant, Impleaded with Another.
    (Argued October 15, 1931;
    decided November 17, 1931.)

      George J. Stacy, James J. Mahoney and Robert B. Livingston for appellant.

      Samuel Deutsch and Victor Deutsch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emma M. Udall, Appellant, v. John C. Udall, Respondent, Impleaded with Another.
    (Argued October 15, 1931;
    decided November 17, 1931.)

      Harold Ashare for appellant.

      Guy 0. Walser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James Fuccillo, Respondent, v. James J. Maxwell et al., Individually and as Copartners under the Firm Name of John Maxwell’s Sons, Appellants.
    (Submitted October 15, 1931;
    decided November 17, 1931.)

      James F. Nugent for appellants.

      Milton Speiser and Joseph Speiser for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Isabella Byrne, Respondent, v. Charles Arnio, Appellant.
    (Argued October 15, 1931;
    decided November 17, 1931.)

      Mark Nave for appellant.

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

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


text:
    Gaetano Brindizi, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    (Argued October 16, 1931;
    decided November 17, 1931.)

      Thomas R. Wheeler for appellant.

      Francis T. Findlay for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James Twyman, Respondent, v. Victor C. Anderson, Appellant.
    (Submitted October 16, 1931;
    decided November 17, 1931.)

      James M. Bovard, Everett W. Bovard and Henry L. TJghetta for appellant.

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

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


text:
    Lena Hanigan, Respondent, v. Abram L. Wright, as Executor of Alma Babcock, Deceased, Appellant.
    (Argued October 16, 1931;
    decided November 17, 1931.)

      William H. Lynes and Alberti Baker for appellant.

      Harry M. Schaffer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Stone et al., Respondents, v. Charles Weidy et al., Appellants.
    (Submitted October 16, 1931;
    decided November 17, 1931.)

      Charles A. Murphy for appellant.

      Andrew J. Hanmer for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Henry F. Lalley and John C. Flinn, Appellants.
    (Argued October 19, 1931;
    decided November 17, 1931.)

      Nathan Burkan and Herman Finkelstein for John C. Flinn, appellant.

      Frederic R. Coudert, Jr., for Henry F. Lalley, appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Vine H. Smith and Rose Schneph of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Corinne Keefe, an Infant, by L. M. Layden, Her Guardian ad Litem, Appellant, v. Ellen C. Keefe, Individually and as Administratrix with the Will Annexed of the Estate of Daniel F. Keefe, Deceased, et al., Respondents, and Daniel Watkins et al., Appellants, Impleaded with Others.
    (Argued October 19, 1931;
    decided November 17, 1931.)

      L. M. Layden for plaintiff-appellant.

      J. B. McCormick for Elizabeth McFadden et al., defendants-appellants.

      Walter A. Chambers and Daniel J. Finn for Daniel Watkins, defendant-appellant.

      Thomas F. Conway, Frank Hurley and H. Prior King for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Henry G. McGivney, Appellant, against Edward P. Mulrooney, as Police Commissioner of the City of New York, Respondent.
    (Argued October 19, 1931;
    decided November 17, 1931.)

      Francis L. Driscoll and John Taylor Breen for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly, Charles E. Ramsgate and William E. C. Mayer of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    W. Irving Herskovits Fur Co., Inc., Respondent, v. Michael Hollander, Appellant.
    (Submitted October 20, 1931;
    decided November 17, 1931.)

      George P. Halperin, Elias L. Rockmore and Eugene K. Tonhonogy for appellant.

      David H. Slade, Maxwell Slade and C. Saul Port for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Winifred Conahan, Respondent, v. Louis Sherry, Inc., Appellant.
    (Argued October 20, 1931:
    decided November 17, 1931.)

      James I. Cuff and Harold V. Angevine for appellant.

      Ralph 0. L. Fay and T. J. Gillen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Minnie Cohen et al., Respondents, v. Abraham Liebhoff, Appellant.
    (Argued October 20, 1931;
    decided November 17, 1931.)

      Horace London, Philip Kranzbaum and Herman Rosenblatt for appellant.

      Ephraim Berliner, Joseph J. Zeiger and Morton Roth for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of The Schenectady Railway Company, Appellant, against Frederick S. Greene, as Superintendent of the Department of Public Works of the State of New York, Respondent.
    (Argued October 20, 1931;
    decided November 17, 1931.)

      Chatfield T. Bates for appellant.

      John J. Bennett, Jr., Attorney-General (Edward E. Brogan and Harold P. Burke of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Joseph Naposki, Appellant, v. McAllister Lighterage Line, Inc., Respondent.
    (Argued October 20, 1931:
    decided November 17, 1931.)

      Joseph Speiser and Milton Speiser for appellant.

      Leo C. Weiler, Thomas E. Nolan and William E. Lowther for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Adolph M. Engel, Appellant, v. Cheston Simmons, Jr., et al., as Executors of Cheston Simmons, Deceased, et al., Respondents, Impleaded with Another.
    (Submitted October 20, 1931;
    decided November 17, 1931.)

      Albert Adams, Samuel Meyers and Morris Meyers for appellant.

      John L. Lockwood for respondents.
   Judgment affirmed, with costs; no opinion.

Concur" Cabdozo, Ch. J., Pound, Cbane, Lehman, Kellogg, O’Bbien and Hubbs, JJ.


text:
    In the Matter of the Accounting of City Bank Farmers Trust Company, as Executor of and Trustee under the Will of Seth Low, Deceased. Robert L. Pierrepont et al., Appellants; Marian L. Raymond et al., Respondents.
    (Argued October 21, 1931;
    decided November 17, 1931.)

      Jackson A. Dykman for Robert L. Pierrepont et al., appellants.
    ■ Francis Smyth for Rector, Church Wardens and Vestrymen of Saint George’s Protestant Episcopal Church, appellants.

      C. Alexander Capron and David Kelly for Marian L. Raymond et ah, respondents.

      William M. Patterson and John Ewen for Charles A. Frank, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Robert A. Lyvers, Appellant, v. Jessie L. Lyvers, Respondent.
    (Argued October 21, 1931;
    decided November 17, 1931.)

      Wittiam MacFarlane for appellant.

      Halsey Sayles for respondent.
   Judgment affirmed,, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Charles L. Bausher, Jr., et al., as Executors of Charles L. Bausher, Deceased, Respondents, v. Thomas M. Lynch et al., Constituting the State Tax Commission of the State of New York, Appellants.
    (Argued October 21, 19311
    decided November 17, 1931.).

      John J. Bennett, Jr., Attorney-General (F. R. Chant and C. T. Dawes of counsel), for appellants.

      Almet R. Latson, Jr., Ahmet ReedLatson and William T. Condon for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Emanuel Alexiadis, Appellant, v. Abraham B. Scheumann, Respondent, Impleaded with Another.
    (Argued October 21, 1931;
    decided November 17, 1931.)

      Gustave B. Garfield and Maurice V. Seligson for appellant.

      Louis Rosenberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Otto Cart, Appellant.
    (Argued October 22, 1931;
    decided November 17, 1931.)

      Jesse Perlmutter for appellant.

      Elvin N. Edwards, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Irish Free State et al., Plaintiffs, v. Guaranty Safe Deposit Company et al., Defendants. John J. Hearn et al., Individually and in Behalf of Others, Appellants. Friends of Irish Freedom, Respondent, v. Peter J. Brady et al., as Receivers, Appellants.
    (Argued October 22, 1931;
    decided November 17, 1931.)

      John T. Ryan and Frank P. Walsh for John J. Hearn et al., appellants. . . . ..

      Philip A. Carroll and C. M. Thorne for Peter J: Brady et al., as receivers, appellants.

      John J. Kirby for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thomas J. Smith, Respondent, v. Richard E. Weldon et al., Appellants.
    (Argued October 22, 1931;
    decided November 17, 1931.)

      William J. Morris, Stephen Callaghan, Charles. S. Colden, Richard E. Weldon and George Kent Weldon for appellants.

      Cecil B. Ruskay' and Harry B. Epstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Max J. Belmont, Respondent, v. Charles Rubinger, Appellant, Impleaded with Another.
    (Argued October 22, 1931;
    decided November 17, 1931.)

      Maurice Rubinger and Walter Underhill for appellant.

      Jack Lewis Kraus, II, Herbert Spencer Leman and Joel Ritz Parker for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Cemetery Gardens, Inc., Respondent, v. Globe Indemnity Company, Appellant.
    (Argued October 22, 1931;
    decided November 17, 1931.)

      Asa B. Kellogg for appellant.

      David Goldstein and Thomas G. Frost for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Hallenbeck, Respondent, v. Henrietta Griffith, Appellant, Impleaded with Others.
    (Argued October 23, 1931;
    decided November 18, 1931.)

      George H. Witbeck for appellant.

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

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


text:
    Gotham Music Service, Inc., et al., Respondents, v. Denton and Haskins Music Publishing Co., Inc., Appellant.
    (Submitted November 16, 1931;
    decided November 24, 1931.)

      Samuel Jesse Buzzell for motion.

      Abner Greenberg opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    John J. Halleran et al., Copartners, under the Firm Name of Halleran Agency, Appellants, v. The National City Bank of New York, Respondent.
    (Submitted November 16, 1931;
    decided November 24, 1931.)

      Walter K. Earle for motion.

      J. Cyril Donoghue opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author: Cardozo, Ch. J.

text:
    Stafford Security Company, Inc., Appellant, v. George Kremer, Respondent, Impleaded with Others.
    (Argued October 14, 1931;
    decided December 1, 1931.)

      Henry Waldman and Joseph G. Abramson for appellant.
    A subtenant cannot offset from rent accruing in futuro,
      against a transferee or assignee of the master lease, or the grantee of the fee, any debt due and owing from the grantor or transferer. (Darby v. Callaghan, 16 N. Y. 71; Real Prop. Law, § 290; 1 McAdam, Landlord & Tenant [3d ed.], § 238.) In an action by an assignee, setoff can only be allowed where the claims are mutual, that is where both were due and payable before the transfer of either to a third party. (Paterson v. Paterson, 59 N. Y. 574; Jordan v. National Shoe & Leather Bank, 74 N. Y. 467; Coffin v. McLean, 80 N. Y. 560; Beckwith v. Union Bank, 9 N. Y. 211; Koegel v. Michigan Trust Co., 117 Mich. 542; Green v. Darling, 10 Fed. Cas. No. 5765.) The statutes have not changed the above rule. (Civ. Prac. Act, §§ 266, 267, subd. 1.)

      Alexander Pfeiffer and Joseph Lotterman for respondent.
    The tenant’s undisputed demands against the landlord’s assignor, maturing before the assignment of the claim for rent, and belonging to the tenant in good faith, before notice thereof, were properly allowed as setoffs to the landlord’s petition, though the assigned claim for rent matured after the date of the transfer. (Civ. Prac. Act, §§ 266, 267; Seibert v. Dunn, 216 N. Y. 237; Deeves & Son v. Manhattan Life Ins. Co., 195 N. Y. 324; Bien v. Freund, 26 App. Div. 202; Michigan Sav. Bank v. Millar, 110 App. Div. 670; American Guild v. Damon, 186 N. Y. 360; American Exchange Nat. Bank v. Smith, 61 Misc. Rep. 49; Seligman v. Dudley, 14 Hun, 186.)
   Cardozo, Ch. J.

By an instrument dated February 10, 1930, the Correll Real Estate Corporation assigned to the petitioner, Stafford Security Company, Inc., a leasehold estate, to expire January 31, 1956, in the building 9 East Forty-fifth street in the city of New York.

The assignment was subject to a sublease, covering part of the building, to expire August 31, 1937, and then held by the respondent Kremer.

After the assignment, and on March 1, 1930, rent in the sum of $3,500 became due under the sublease for the three months then beginning. The rent being unpaid, the petitioner began summary proceedings to dispossess the subtenant.

The subtenant by his answer admitted the non-payment of the rent as charged in the petition, but set up counterclaims for the rent of other buildings due from the petitioner’s assignor'at the time of the assignment.

The petitioner takes the ground that a demand existing against the assignor at the time of the assignment is not available in an action or proceeding by the assignee to recover upon a demand for rent accruing after the assignment.

The respondent insists that a contract demand matured at the time of the assignment may be made the subject of a counterclaim to a demand on contract in favor of the assignee whether maturing before or afterwards.

By Civil Practice Act, section 267, subdivision 1, it is prescribed that in an action by the assignee of a contract, other than a negotiable promissory note or bill of exchange “ a demand existing against the party thereto or an assignee of the contract at the time of the assignment thereof, and belonging to the defendant, in good faith, before notice of the assignment, must be allowed as a counterclaim to the amount of the plaintiff’s demand, if it might have been so allowed against the party, or the assignee, while the contract belonged to him.”

The respondent’s demands were not allowable as counterclaims while the contract, the subject of the assignment, belonged to the assignor. The objection is not merely that the causes of action now sued upon by the plaintiff had not yet matured. Whether that without more would defeat the allowance of the counterclaims, we do not now determine (cf. Richards v. LaTourette, 53 Hun, 623, 627; revd. on other grounds, 119 N. Y. 54). The deeper objection is that the generative transaction out of which a cause of action might ultimately be born was non-existent or at best inchoate. At the time of the assignment the assignor had not yet supplied the consideration, the possession of the land, in return for which the defendant was under a duty to pay this installment of the rent (Kottler v. New York Bargain House, Inc., 242 N. Y. 28, 35; Deane v. Caldwell, 127 Mass. 242; Matter of Roth & Appel, 181 Fed. Rep. 667). The consideration was supplied thereafter by the assignee of the lease, the new owner of the reversion. It is the petitioner assignee, and not the original lessor, whose building will be occupied rent free if the offsets shall prevail. The respondent’s demands were unavailable as counterclaims while the contract belonged to the assignor, not merely because the remedial form, an action for rent, would have been premature, but for defect of the operative facts out of which remedies arise (Clark on Code Pleading, pp. 84, 503). The difficulty is not merely that in the hands of. the assignor the cause of action was imperfect. The difficulty is that it did not exist at all.

An illustration will help to clarify the distinction. We may assume the case of a contract to build a house with permission to the builder to assign the contract to another. Before any work is done; an assignment is made, with the result that the whole consideration is supplied by the assignee, who carries the work to completion. At the end the owner of the land, who has maintained a prudent silence while the work is going on, gives notice of his counterclaims. Undoubtedly demands existing against the assignor at the time of the assignment will be available in an action by the assignee to recover any moneys that were then due under the contract. They may even be available where at the time of the assignment the moneys have been earned, or the consideration therefor has been supplied, though payment has been postponed. That question-is not here. We think they are not available, where both remedy and consideration have their origin thereafter.

A different conclusion would make it possible that the assignee of a reversion would be unable to collect rent from a tenant in possession during an unexpired term extending over many years, if before notice of the assignment the tenant had become the owner of a cause of action on contract against the assignor. Such a result is too harsh, it would impose too great a clog upon the free alienation of land, to be accepted, unless under manifest compulsion, as flowing from the statute. The compulsion is lacking, for the statute is at best obscure.

Nothing said in this opinion 'applies to a case where the counterclaim, if there had been no assignment, would fall within the provisions of subdivision 1 of section 266 (a counterclaim growing out of the same contract or transaction), and not within the provisions of subdivision 2 (Seibert v. Dunn, 216 N. Y. 237, 240).

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

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

Judgment accordingly.


text:
    The New York Mortgage Company, Appellant, v. Julius Garfinkel et al., Respondents.
    (Argued November 19, 1931;
    decided December 1, 1931.)

      Daniel Levy and William Solomon for appellant.
    The evidence does not establish by proof beyond mere surmise and conjecture that the plaintiff knew of the illegal act of .its agents. (Henry v. Allen, 151 N. Y. 1; Jacobus v. Jamestown Mantel Co., 211 N. Y. 154; Credit Alliance Corp. v. Sheridan Theatre Co., 241 N. Y. 216; Granite Bond & Mortgage Corp. v. Hutchins, 225 App. Div. 412; Call v. Palmer, 110 U. S. 98; Brown v. Johnson, 43 Utah, 1; McLean v. Camak, 97 Ga. 804; Franzen v. Hammond, 136 Wis. 239; Condit v. Baldwin, 21 N. Y. 219; Estevez v. Purdy, 66 N. Y. 446; Stillman v. Northrup, 109 N. Y. 473; Baldwin v. Doying, 114 N. Y. 452; Gokey v. Knapp, 44 Iowa, 32; Matter of Hughes, 225 App. Div. 29; 251 N. Y. 529; Lopez v. Campbell, 163 N. Y. 340; Klein v. Cohen, 142 App. Div. 500.) The evidence does not establish by proof beyond mere surmise and conjecture that the plaintiff received any bonus or rebate. (Brown v. Johnson, 43 Utah, 1; McLean v. Camak, 97 Ga. 804; White v. Benjamin, 138 N. Y. 623; Brown v. Robinson, 224 N. Y. 301; Mutual Life Ins. Co. v. Kashaw, 66 N. Y. 544.)

      Ellsworth Baker and Benjamin Cosor for respondents.
    The proof shows that the appellant corporation had and was chargeable with knowledge of the usurious transaction. (Henry v. Allen, 151 N. Y. 1; Toronto Bank v. McDougall, 15 U. C. C. P. 475; American Soda Fountain Co. v. Stolzenbach, 75 N. J. L. 721; Craigie v. Hadley, 99 N. Y. 131; Holden v. New York & Erie Bank, 72 N. Y. 286; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 559; Rock River Development Co. v. German-American Brewing Co., 193 App. Div. 197; Condit v. Baldwin, 21 N. Y. 219; Wyeth v. Braniff, 84 N. Y. 627; Algur v. Gardner, 54 N. Y. 360; Bliven v. Lydecker, 55 Hun, 171; Stillman v. Northrup, 109 N. Y. 473.)
   Per Curiam.

The evidence justifies the inference that the president and the attorney-director in making the loan and in taking the bonus were acting for and in behalf of the corporation. On this point the plaintiff has at least failed to call these two officers to show what became of the money they received.

Whether the mortgage would be void for usury if the two officers, betraying their trust and violating their duty, personally accepted a bonus for the loan from the corporation, we do not decide.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Kellogg, J. Crane, J.

text:
    Adele L. Hulburt, Respondent, v. John D. Walker et al., Appellants.
    (Argued October 19, 1931;
    decided December 4, 1931.)

      Leo J. Rice for Fairport National Bank and Trust Company, appellant.
    The plaintiff, so far as the defendant bank is concerned, is bound by her dealings with the defendant Walker. (Real Prop. Law, § 291; Dixey v. Dixey, 187 N. Y. Supp. 879; Wood v. Chapin, 13 N. Y. 509; Strough v. Wilder, 119 N. Y. 530.) Plaintiff cannot avoid her signature on the deed. (Pimpinello v. Swift & Co., 253 N. Y. 162; Davin v. Isman, 228 N. Y. 1.) The plaintiff is estopped to deny her signature on the deed. (Davin v. Isman, 228 N. Y. 1; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458.)

      Robert H. Tew for Charles W. Christler, appellant.
    Plaintiff either intentionally deeded and conveyed the property or negligently affixed her signature to the deed. In either event she is estopped from denying the validity of the second mortgage. (Pimpinello v. Swift & Co., 253 N. Y. 159; Page v. Krekey, 137 N. Y. 307; Chapman v. Rose, 56 N. Y. 137.)

      Hampton H. Halsey for respondent.
    The defendants-appellants have received by their mortgages no better rights than the alleged grantee had. (Mardon v. Dorthy, 160 N. Y. 39; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458.) There was no negligence on the part of plaintiff and the principle of equitable estoppel has no application. (Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 462; Albany County Savings Bank v. McCarthy, 149 N. Y. 71; Marden v. Dorthy, 160 N. Y. 39.)
   Kellogg, J.

On July 1st, 1927, in Monroe county clerk’s office, there was offered for record and recorded an instrument having the form of a completed deed, purporting to convey a house and lot, in the village of Fairport, N. Y., from the plaintiff, its prior owner, to the defendant John Donald Walker. At the foot of the conveyancing clauses thére was subscribed the genuine signature of the plaintiff. Following the signature there appeared a certificate of acknowledgment, subscribed by a notary public of Cook county, 111., wherein, under the venue State of Illinois, County of Cook, City of Chicago, ss.: ” it was certified that the plaintiff, on the 21st day of June, 1927, had appeared before the notary and acknowledged that she had executed the instrument.

The trial court made this finding: “ That the plaintiff never executed, or acknowledged, or delivered, or caused to be delivered the deed recorded in Monroe County Clerk’s Office in Liber 1419 of Deeds, page 466.” The deed so described is the instrument of conveyance to which we have referred. It also made the finding: That the signature on the deed to defendant Walker is the real and authentic signature of the plaintiff.”

The proof is overwhelming that the plaintiff never acknowledged the instrument before the Cook county notary; that she was in the city of Milwaukee from May 15th to June 23d; that she was in the city of Spokane, State of Washington, immediately following the latter date for a period of three months. The clear inference is that the defendant Walker, who visited the plaintiff in Milwaukee during the month of June, 1927, then procured her signature to the writing; that he later persuaded the notary, who never saw the plaintiff, to certify that she had appeared before him in Chicago on June 21st, 1927, and had then acknowledged the instrument.

The court, in making the finding that there was no execution and delivery of the instrument by the plaintiff to Walker, coupled the words “ never executed ” with the words “ or delivered,” thereby indicating that “ executed ” was not used in a sense to include “ delivered.” Thus regarded, the finding that the plaintiff never executed the instrument, at first thought, seems inconsistent with the finding that the signature to the instrument was the “ authentic signature ” of the plaintiff. Likewise, the finding that the plaintiff never “ delivered ” the instrument may seem inconsistent with the undisputed fact that the writing, after subscription by the plaintiff, came into the possession of Walker, so far as appears, by lawful means. However, it is an obvious truth that a writing, not containing, when signed, words essential to a conveyance, is not an instrument of conveyance; that if the necessary words to complete it are afterwards inserted therein, the completed instrument is not one which was “ executed by the signer. Thus, if it appears in this proof that the disputed instrument, when signed and delivered, did not contain the words of description now exhibited thereby, obviously it is an instrument which the plaintiff never executed or delivered. The findings would then correctly express the facts, and the apparent inconsistencies would disappear. We think that it clearly so appears.

According to the testimony of the plaintiff, she was attended by Walker in the city of Milwaukee, on June 22d, 1927, and at that time executed in duplicate a contract of sale to Walker of the premises in question. The contract, which was placed in evidence, provides for a sale of the house and lot “At a purchase price of $7,000,” for which Walker is to give the plaintiff his judgment note for $7,000, payable October 1st, 1927. The contract also contains this clause: “Whereas, the party of the second part accepting the deed at the above price mentioned on the above terms, agrees to deliver to the party of the first part, his good and sufficient judgment note of that date in the amount of Seven hundred dollars ($700) due October 1st, 1927.” The two notes were then and there delivered to the plaintiff, and the plaintiff signed the contract duplicates, delivering one to Walker.

The plaintiff also testified that, on or about June 21st, 1927, in Milwaukee, she signed some writing other than the duplicate contracts. She says concerning it: “ There was just one sheet, and Mr. Walker said that would hold me if anything happened to me or he. It was a plain sheet of paper with no typewriting on it at all on the back of it, and no writing above.the place where I signed; there was some typewriting above where I signed the paper.” The blank form, upon which the conveyance in question was written, is a paper of one sheet; it is a “ white piece of paper;” there is no handwriting above the plaintiff’s signature; there are upon the original form itself, several inches above the signature, the typewritten words “ Subject to all restrictions of record,” and further down, “Adele L. Hulburt, party of the first part.”

The contract of sale states that the $700 note which Walker was to give in addition to the $7,000 note for the purchase price, was designed to be given by him for accepting the deed at the above price mentioned on the above terms.” . Walker states that the additional payment was for the present delivery of a deed; that “ the extra seven hundred dollar note was for the privilege of going ahead and placing the mortgage on the property and the use of the money.” The plaintiff herself says that Walker stated: “Here is another one for seven hundred dollars, I will give you, to hold this property for me until the first of October.” She gave the following answer to the following question: “ Q. What did you get the seven hundred dollars for? He wanted that I should hold the property and that if anything happened to him or me that would give him the property.” In the absence of any proof of a trick or device practiced or any misrepresentation made by Walker, it is a reasonable conclusion that the plaintiff voluntarily executed and delivered to Walker at or about the time she executed the duplicate contracts the additional writing referred to by her; that this writing was the disputed document; that the plaintiff had the will to sign and deliver the document in its then form.

What then of the plaintiff’s statement that she did not sign a paper which looked like the disputed instrument and “ nothing that looked like a deed?” The answer is that if the legal form which she signed did not contain a description of the property, she did not sign a deed, or any paper that looked ” like a deed.

No words, either penned or typewritten, which describe the property to be conveyed appear upon the conveyancing blank itself. Typewritten words, describing the property by metes and bounds, appear upon a slip of typewriting paper, the upper edge of which is pasted to the deed, at a part thereof left blank for the insertion of a description. These words occupy eighteen fines of typewritten matter supplying an elaborate description of the property. As many as eleven different measurements of distance, and an equal number of compass directions, appear in the description. No man could long hold these measurements in mind. They must have been copied from some document or memorandum and placed upon the typewritten slip. Before the execution of the instrument, Walker had not been in Fairport, N. Y.; had had no recourse to the deeds conveying the property to the plaintiff; had not visited or been in communication with the Monroe county clerk’s office. Walker himself says that the description was copied from a contract of sale of the property to her which the plaintiff had handed to him while on her western visit. The plaintiff, who must be believed in view of the fact that no credit may be accorded to Walker, stated she had had no papers with her which gave a description of her property. The just inference is that the description slip had not been pasted to the instrument when the plaintiff signed, and was thereafter inserted by the defendant Walker.

It is, of course, true that no title passed by the delivery of the blank deed to Walker, and that the instrument in his hands was void. However, we are not now concerned with Walker’s rights. On or about June 25th, 1927, Walker appeared in Fairport and then exhibited to the defendant Fairport National Bank and Trust Company the document in its present form, then having the printed slip, giving the description, attached thereto. He obtained a substantial loan from the bank which took from him a mortgage upon the house and lot for its security. He pursued a similar course with the defendant Christler, who advanced a substantial sum upon the faith of a second mortgage. Both of these parties were ignorant of any forgery or fraud committed by Walker. The question is not whether these persons acquired liens upon the premises from a person who had no title. Bather is it this: Is the plaintiff, the real owner of the property, estopped to dispute the validity of the mortgages?

That a person, who signs his name as a party to a blank negotiable instrument, afterwards completed by the insertion of words expressing an intent not held by the signer, is bound by its then terms, in respect to innocent third parties, is a proposition not susceptible of contradiction. The rule results, so it is very generally said, from the accepted principle that whoever signs and puts in circulation a blank negotiable instrument, impliedly confers authority upon a subsequent holder to fill in the blanks at will, and may not urge, as against innocent third persons, that the words thereafter inserted were contrary to the authorization actually given. (Van Duzer v. Howell, 21 N. Y. 531; Redlich v. Doll, 54 N. Y. 234; Ledwich v. McKim, 53 N. Y. 307; Weyerhauser v. Dun, 100 N. Y. 150.) In support of the principle there is often quoted this statement of Lord Mansfield : The indorsement of a blank note is a letter of credit for an indefinite sum.” (Russell v. Langstaffe, 2 Doug. 514, 516.) This principle of implied authority does not apply to instruments, other than those which are negotiable, or quasi-negotiable by custom. (Chauncey v. Arnold, 24 N. Y. 330; Dutchess & Columbia County R. R. Co. v. Mabbett, 58 N. Y. 397; Levy v. Louvre Realty Co., 222 N. Y. 14.) An instrument, purporting to be a mortgage, which is left blank as to the name of the payee, is absolutely void. (Chauncey v. Arnold, supra, at p. 332.) There the court said: “ A transfer to a person not named, or in any way described or designated, is, unconnected with anything else, a mere nullity.” However, if authority is expressly granted to fill in blank spaces left in a deed or mortgage, or if the granting of such authority be a legitimate factual inference, the grantor or mortgagor, in respect to innocent third parties, may be bound by the words inserted. (Richards v. Day, 137 N. Y. 183; Levy v. Louvre Realty Co., supra; Drury v. Foster, 2 Wall. [U. S.] 24; Nelson v. McDonald, 80 Wis. 605; Phelps v. Sullivan, 140 Mass. 36; Palacios v. Brasher, 18 Col. 593; Guthrie v. Field, 85 Kan. 58.)

There is another principle which must be considered. If a negotiable instrument, such as a check, complete on its face, but exhibiting blank spaces, wherein additional figures or names may readily be inserted, is signed in that condition by a drawer, and the instrument is altered by the introduction of other figures or words, the drawer may be hable to an innocent drawee, who has paid the check, because his negligence has facilitated the forgery. (Young v. Grote, 4 Bing. 253; Gutfreund v. East River Nat. Bank, 251 N. Y. 58, 62.) This principle rests primarily on the doctrine of estoppel. If the negligence of the depositor enables the clerk to alter the check and so causes the bank to make payment on a forged order, the depositor is estopped from disputing the authority of the banker to pay.” (Per Pound, J., in Gutfreund v. East River Nat. Bank, supra, at p. 63.) The principle of implied authority, applicable to negotiable instruments, referred to in the last paragraph, renders the obligation of a party to pay an instrument according to its terms, although composed of inserted words not expressive of his intent, as absolutely valid as if made with actual authority. “ But how different is the principle of estoppel. It validates no transaction whatever. It all along implies a transaction itself invalid, and a person is forbidden for equitable reasons to set up that invalidity.” (Per Wilde, J., in Swan v. North British Australasian Co., 7 H. & N. 603, 634.) It is not perceived why the principle of estoppel by negligence should not apply, in many instances of incomplete negotiable instruments, where the party signing has been held on the principle of implied authority. Certainly, if a party be negligent, in subscribing his name to a completed instrument, in which small spaces, offering an opportunity for- forgery, have been left, he is equally, if not more grossly, negligent, in signing an incomplete instrument, in which more extensive blanks appear. However this may be, it is the principle of implied authority, not the principle of estoppel, which has been held to be inapplicable to cases involving non-negotiable instruments.

It has been said in several cases that the principle of estoppel by negligence, alluded to above, applies to deeds and all other non-negotiable instruments. One who signs a printed form of bond, leaving it to a justice of the peace to insert certain specified provisions, is not bound to the named obligee, in respect to words inserted by the justice, which were not authorized. (Richards v. Day, 137 N. Y. 183.) Yet in that case, Earl, J., remarked: There might be cases of an estoppel where one who signed a paper in that way would be bound by it. But in this case no estoppel arises, as the action is between one of the original parties and the representative of the other.” In McNeil v. Tenth Nat. Bank (46 N. Y. 325, 329), Rapallo, J., said that the principle that the vendor of a non-negotiable instrument can convey no greater title than he has, was “ a truism, predicable of a simple transfer from one party to another where no other element intervenes,” but that this did not apply where the rights of innocent third parties were involved. Their rights in such cases do not • depend upon the actual title or authority of the party with whom they deal directly, but are derived from the act of the real owner, which precludes him from disputing, as against them, the existence of the title or-power which, through negligence or mistaken confidence he caused or allowed to appear to be vested in the party making the conveyance.” Of a person who signed a non-negotiable instrument of guaranty it was said by O’Brien, J., in Page v. Krekey (137 N. Y. 307, 312), that “ if he actually signed the paper, though procured to do it by fraud, and is chargeable with negligence, he is liable to an innocent party who acted to his prejudice upon the faith of the instrument.” In Swan v. North British Australasian Co. (supra), Wilde, J., said that it is difficult to see why, if a man is restrained or estopped from repudiating a parol transfer, he should be less restrained by the same estoppel from repudiating a solemn transfer by deed ” (p. 635). On the appeal in that case (2 H. & C. 175), Mellor, J., agreed that a grantor, signing a deed with unfilled blanks, might be bound by words subsequently inserted; Not by validating a void deed, as was supposed on the argument, but by holding that the parties shall not be permitted to aver, against equity and good faith the invalidity of a deed which either by words or conduct they have asserted to be valid, and upon which others have acted.”"

In Pence v. Arbuckle (22 Minn. 417) these facts were considered: Husband and wife signed a blank form of warranty deed, containing the usual printed matter. The deed was blank in respect to the names of the parties, the description of the property to be conveyed, and the consideration payable. They acknowledged the deed in its then form before a proper officer, who attached his certificate of acknowledgment, which was dated August 24th, 1857. They then delivered the deed to an agent for the purpose of enabling him to make a sale of certain property. The agent filled up the blanks; inserted his own name as grantee; executed and delivered the instrument to an innocent third person; and received for himself the consideration paid. The ground of the decision upholding the conveyance was estoppel, the court saying: The signature and certificate were a continuing representation that the instrument, in whatever condition it might be when presented to anyone, was in that condition on August 24, 1857 ” (p. 420).

The general principle of estoppel, applying to deeds or other instruments, containing blanks when signed, which prevents the signer from disputing the words subsequently inserted, was thus stated by Wilde, J., in the case cited (Swan v. North British Australasian Co., 7 H. & N. p. 623): That if he has led others into the belief of a certain state of facts by conduct of culpable neglect calculated to have that result, and they have acted on that belief to their prejudice, he shall not be heard after-wards, as against such persons, to show that state of facts did not exist.” In commenting upon this statement, Blackburn, J., on the appeal (Swan v. North British Australasian Co., 2 H. & C. 175) said: “ This is very nearly right, but in my opinion not quite, as he omits to qualify it by saying that the neglect must be in the transaction itself, and be the proximate cause of the leading the party into that mistake; and, also, as I think, that it must be the neglect of some duty that is owing to the person led into that belief, or, what comes to the same thing, to the general public of whom the person is one, and not merely neglect of what would be prudent in respect to the party himself, or even of some duty owing to third persons, with whom those seeking to set up the estoppel are not privy; and these distinctions make in the present case all the difference ” (p. 182).

We agree with the opinion of Blackburn, J., to the extent of his statement that mere carelessness, as commonly understood, is not Sufficient; there must be the neglect of some duty that is owing to the person led into that belief; or, what comes to the same thing, to the general public of whom the person is one;” and “ not merely neglect of what would be prudent in respect to the party himself.” There is negligence only where no care is exercised to avert a risk to others which reasonably should be apprehended. “ The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.” (Per Cardozo, J., in Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344.)

Notes and checks are intended for transfer; instruments of a similar nature, such as bonds and certificates of stock, by their very form and nature, are designed to circulate freely in the channels of commerce. Instruments conveying real property are not susceptible of transfer to third persons; nor does the execution of a bond and mortgage readily suggest the thought of subsequent transfer. But there is no such implication in the delivery of a bond and mortgage. The suggestion of a future transfer is not immanent in the transaction.” (Per Cardozo, J., in People’s Trust Co. v. Smith, 215 N. Y. 488, 494.) An injury to third persons through careless execution of negotiable instruments or of documents transferring them, should reasonably be apprehended by those who consign them to the commercial stream. A similar apprehension, in the case of instruments not ordinarily intended for use by third persons, would less readily come to mind. Consciousness of peril to strangers, in the careless execution of instruments of the negotiable type, would induce the reasonably prudent man to exercise attentive care, that the peril might be avoided. In the case of instruments of the non-negotiable type, the risk involved is less easily perceived; correspondingly the duty of care less frequently arises. This distinction was the governing thought in such cases as People’s Trust Co. v. Smith (supra) and Westlake v. Dunn (184 Mass. 260). In the latter case a landowner had signed a deed which was blank as to the name of the grantee. He temporarily intrusted it to a friend that he might exhibit it to a third person, a prospective buyer. The friend filled in his own name as grantee, and mortgaged the land to a bank which loaned him money. It was held that the owner was not estopped by his carelessness from asserting the invalidity of the instrument. We conclude, therefore, that, while negligence may serve, in the case of non-negotiable instruments, to preclude an attack upon their validity, more persuasive evidence, to establish the duty of care and its breach, may be required in a situation involving instruments of that character than in one involving instruments which are classed as negotiable.

The plaintiff, in signing a blank form of warranty deed, which contained no description of the land to be conveyed, was certainly careless in the ordinary sense of that word. Whether she was guilty of negligence, as the law defines the term, depends upon the risks, arising from that act, which should reasonably have been apprehended. The case differs from Pence v. Arbuckle (supra) in a marked degree. There the putative grantors not merely signed and delivered a form of deed containing no words except those of the printed blank, they acknowledged before a proper officer their execution of the instrument and procured his certificate of acknowledgment to be attached thereto. The instrument, if completed by the filling of the blanks, would be in such form that it might be recorded. In this instance, if the plaintiff had given thought to the matter, her reflections might well have assumed this form: This instrument, since it lacks a description, is a nullity. It may be made complete through forgery. Even then, no certificate of acknowledgment is appended thereto. In order that third persons may be induced to buy from the putative grantee, not only must a forged description be inserted, but a notary public must be procured to sign a false certificate of acknowledgment thereto, so that the deed may be rendered eligible for record. There is no likelihood of damage to third persons if I sign the instrument. We think that, in view of the many obstacles to be overcome by the putative grantee, the defendant Walker, before he might become armed with a completed and acknowledged deed with which to negotiate a loan by means of a mortgage, the plaintiff might reasonably have concluded that no risk to others was involved in signing an instrument, containing no description, and, therefore, conveying no title, when delivered to Walker. At least, we are of the opinion that the plaintiff was not, as a matter of law, guilty of negligence, and that the decision by the trial judge that she was not thus guilty, as a matter of fact, must stand.

The judgment should be affirmed, with costs.

Crane, J.

(concurring). I concur in the result on the ground that the mortgagees were put on notice by the form of the deed which came into the possession of their agent.

Cardozo, Ch. J., Pound, Lehman, O’Brien and Hubbs, JJ., concur with Kellogg, J.; Crane, J., concurs in result in memorandum.

Judgment affirmed.


author: Lehman, J.

text:
    Edward S. Mitchell, Inc., Appellant, v. Dannemann Hosiery Mills, Respondent.
    (Argued October 21, 1931;
    decided December 4, 1931.)

      Irving M. Engel and Karl W. Kirchwey for appellant.
    On the issue of reformation, the Appellate Division having failed to make new findings of fact, its decision must be conclusively presumed to have been upon a question of law, and the sole inquiry is as to whether or not the record discloses any evidence to sustain the findings of the trial justice. (Schnibbe v. Glenz, 252 N. Y. 7; Ganz v. Ganz, 253 N. Y. 356; Beatty v. Guggenheim Exploration Co., 223 N. Y. 294; McDougall v. Shoemaker, 236 N. Y. 127; Partola Mfg. Co. v. General Chemical Co., 234 N. Y. 320.) There was ample evidence to sustain the findings of the trial justice. (Joy v. Diefendorf, 130 N. Y. 6; Greenhall v. Davis, 190 App. Div. 632; Matter of Kindberg, 207 N. Y. 220; Strickland v. Henry, 175 N. Y. 372; Levy v. Louvre Realty Co., 222 N. Y. 14; Caldwell v. Lucas, 233 N. Y. 248; York Mortgage Corp. v. Clotar Construction Corp., 254 N. Y. 128; Boyd v. Boyd, 252 N. Y. 422.)

      Thomas F. Hennessey for respondent.
    The Appellate Division was correct in modifying the judgment of the trial court and deciding that reformation of the agreement should be permitted. (Pitcher v. Hennessey, 48 N. Y. 415; Horn v. Schrenkeisen, 110 N. Y. 55; Marsh v. McNair, 48 Hun, 117.) No commissions are payable under the agreement for shipments made on orders accepted after June 19, 1929. (Outerridge v. Campbell, 87 App. Div. 597; Bailey v. Stafford, Inc., 178 App. Div. 811; Everitt v. New York Engraving & Printing Co., 20 Misc. Rep. 548.)
   Lehman, J.

The defendant by written contract dated September 14, 1928, conferred upon Edward S. Mitchell the selling agency for its merchandise. Mitchell transferred the agency to the plaintiff, as he had a right to do under the terms of the agency contract. The defendant agreed to pay to the selling agent four per cent commission on. all regular merchandise shipped by us on orders accepted during the life of this agreement.” On irregular ” merchandise the defendant reserved the option to make sales “ from time to time by ourselves ” and on such sales the agent was to receive no commission, but it was provided that This is not to apply, however, to sales * * * to your customers as hereinafter defined. It is further agreed that four months’ written notice shall be sufficient to close our selling relations. After giving of such notice you are to be entitled to commissions of four per cent (4%) only on shipments of all merchandise made by us to any of your customers regardless of whether orders for such shipments are obtained through you or not. ' Your customers ’ shall mean any customers whom you may heretofore have brought or may hereafter bring into business relations with us or with our predecessors, Dannemann Kuehnert Hosiery Co.”

Pursuant to these provisions in the contract the defendant gave the stipulated notice on February 19th, 1929. The selling relations ” were accordingly terminated. Then a dispute arose as to the amount of commissions which should be paid to the plaintiff. The plaintiff claimed that the provision that after giving of such notice ” the selling agent should be entitled to commissions of four per cent (4%) only on shipments * * * made by us to any of your customers regardless of whether orders for such shipments are obtained through you or not,” applied only after the expiration of the four months’ notice. Under such a construction the plaintiff would continue to be entitled, during those months, to commissions on all shipments of “ regular ” merchandise, whether obtained through it or not, and whether made to its customers or not, and so long as the defendant remained in business the plaintiff would be entitled to commissions on orders shipped to customers introduced by it to the defendant.

In this action to recover such commissions the defendant urged that after giving ” the four months’ notice the defendant was at liberty to sell regular ” merchandise as well as irregular merchandise without obligation to pay commissions on sales not made to customers of the plaintiff and that all obligation to pay commissions of any kind ceased at the expiration of the four months’ notice. In case the court should refuse to accept its construction of the contract, it pleaded a counterclaim for reformation of the contract.

The construction urged at the trial by the plaintiff would require that the words “ after giving of such notice ” be read as if they were after the expiration of such notice.” The justice at Special Term rejected that construction and allowed the plaintiff commissions only upon orders received by the defendant, after the giving of the notice, from plaintiff’s customers. The construction urged by the defendant would require that the words during the life of this agreement,” expressly inserted in the first paragraph, to read by implication into each succeeding paragraph. Doubtless the court might find ground for such implication if the result would otherwise be unreasonable, perhaps even if the result would otherwise be improbable. That is not the case here. Mitchell first became the selling agent of the mills owned by the defendant’s predecessor, Dannemann Kuehnert Hosiery Company in February, 1927. At that time Mitchell had an established business and represented, as selling agent, other hosiery manufacturers while the mills were beginning a new business. Both parties must have contemplated that Mitchell would sell the products of the mills to his own customers, for the product was "unknown and the mills had no customers. It is not unreasonable that Mitchell in entering into a sales agency contract, terminable on four months’ notice, should have provided that, when he induced his customers to enter into business relations with the mills, he should become entitled to a commission, not only on orders which he obtained directly, but on orders which were the indirect result of that contract, and that such commissions should continue, though selling relations between himself and the mills were terminated. The original contract made by Mitchell with the mill owners contained similar provisions in regard "to commissions to those inserted in the contract which was made in September, 1928, when there was some change in the ownership of the mills and Mitchell desired permission to transfer the agency to a corporation. We should not read into these terms any implied limitation that such commissions, like commissions to be paid upon orders shipped to purchasers who were not customers of the plaintiff, should continue only during the life of the contract ” and while selling relations continued between the mills and the plaintiff. The .fact that the words during the life of the contract ” were inserted in the clause relating to the payment of the stipulated commissions, concededly payable while the selling relations ” continued and were omitted from the clause relating to payments after the giving ” of the notice which was intended to terminate those relations, is not without significance. So the trial judge decided and accordingly gave the contract a literal construction, allowing the plaintiff commissions on orders accepted even after June 19th from plaintiff’s customers. At the same time he dismissed the counterclaim for reformation.

Both parties appealed from the judgment to the Appellate Division and on that appeal the judgment was modified by striking out that part thereof which dismisses the counterclaim, and by granting and decreeing reformation of the agreement * * * by reciting that * * * the plaintiff is entitled to commissions on sales to its customers up to June 19, 1929, only.” The court did not expressly reverse any findings of fact made by the trial court and made no new findings of its own. The modification is, therefore, only on questions of law and must have been so intended by the Appellate Division.

There was no error of law in the construction of the contract according to its letter when such construction produces no unreasonable result, even though we may be unable to say with certainty that the parties may not have intended otherwise. There was no error of law in the dismissal of the counterclaim, though the plaintiff has produced no testimony contradicting the testimony produced by the defendant of conversations, in which Mitchell is alleged to have agreed that no commissions of any kind should be paid after the selling relations were terminated by notice. Mitchell was dead at the time of the trial. Only the president of the defendant and his former stenographer were, so it is said, present at these conversations with Mitchell. Their testimony is not entirely free from inconsistencies and improbabilities and perhaps some self-contradictions. At least where the other participant to the conversations is dead their credibility becomes a question of fact. Indeed, the question of where the weight of the evidence lies would certainly not be free from doubt if that question might be considered.

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

Pound, Crane, Kellogg and O’Brien, JJ., concur; Cardozo, Ch. J., and Hubbs, J., dissent on the ground that by a fair construction of the contract the plaintiff is not entitled to commissions on sales to customers after June 19, 1929.

Judgment accordingly.