text:
    Grace M. Graham, as Executrix of Edward C. Clifford, Deceased, Appellant, v. Israel O. Blake et al., as Executors of Israel O. Blake, Deceased, et al., Respondents, et al., Defendants.
    Argued June 16, 1943;
    decided October 14, 1943.

      Harry Bijur, Otto G. Sommerich and Harold H. Herts for appellant.

      Thomas F. Daly, Joyce Stanley and Frank P. TJjford for respondents.
   Judgment affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Tobias Zwerdling, Suing on Behalf of Bethlehem Steel Corporation, for Himself and for the Benefit of All Other Stockholders Similarly Situated Who May Come in and Contribute to the Cost of This Action, Appellant, v. Quincy Bent and Others and Bethlehem Steel Corporation, Defendants, Impleaded with William J. Brown, and Edward H. Schwab and Others, as Executors, etc., of Charles M. Schwab, Deceased, Respondents.
    Argued June 17, 1943;
    decided October 14, 1943.

      William 8. Bennet and Louis Boehm for appellant.

      Frederick H. Wood, Hoyt A. Moore and George M. Billings for respondents.
   Judgment affirmed, with costs; no opinion.

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


author: Per Curiam.

text:
    John C. Rochester, Appellant, v. Hugh G. Bergen et al., Respondents.
    Argued June 14, 1943;
    decided October 14, 1943.

      ' Henry Vollmer, Jr., and John C. Osborne for appellant.

      Lloyd P. Stryker, Howard A. Rochford and Harold W. Wolf- , ram for respondents. 1
   Per Curiam.

Paragraph 3 of the agreement is invalid. Paragraph 2 is inseparable from paragraph 3 and falls with it. There has been no refusal or failure to perform any other provision of the agreement. The judgment appealed from denying specific performance and dismissing the complaint is therefore affirmed, with costs.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    Mary Laventhall et al., Plaintiffs, v. Fireman’s Insurance Company of Newark, New Jersey, et al., Defendants.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Homer 1. Harris for motion.

      John L. Fletcher opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Louis G. Pacent, Appellant, v. Warner Bros. Pictures, Inc., et al., Respondents.
    Argued October 4, 1943;
    decided October 14, 1943.

      Jules G. Randal and R. W. Perkins for motion.

      Morris Gottlieb opposed.
   Motion granted and appeal dismissed, without costs.


text:
    In the Matter of the Estate of Eleanor S. Conolly, Deceased. Gladys Hart, as General Guardian of Eleanor S. Hart, an Infant, et al., Appellants; Glenn L. Buck, as Special Guardian of Eleanor S. Hart, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Arthur VD. Chamberlain for motion for leave to appeal; for motion for certificate that constitutional question is involved and in opposition to motion to dismiss appeal.

      Glenn L. Buck for motion to dismiss appeal and in opposition to motion for leave to appeal and motion for certificate of constitutional question.
   Motion for leave to appeal and for a stay denied, with ten dollars costs.

Motion to dismiss appeal taken as of right granted and appeal dismissed.

Motion for certificate that a constitutional question is involved denied.


text:
    In the Matter of the Claims of Leo Van Beck et al., Respondents, against Allied Cleaning Contractors, Inc., Appellant, and the Claim of Harry DeBree, Respondent, v. Allied Pneumatic Service Company et al., Appellants, and State Insurance Fund, Respondent. State Industrial Board, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Jeremiah F. Connor for' motion.

      William F. O’Rourke opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements. The appellants are not parties aggrieved, since no award has been made against either of them.


text:
    The People of the State of New York, Respondent, v. Louis Morelli, Appellant.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Louis Morelli, in person, for motion.
    No one opposed.
   Motion denied. Under the provisions of the Constitution no appeal lies as of right and no leave to appeal can be granted by the court.

Appeal dismissed.


text:
    The People of the State of New York ex rel. Frank Kerrigan, Appellant, against Walter B. Martin, as Warden of Clinton Prison, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.
   Motion for reargument denied. (See 291 N. Y. 513.)


text:
    Ocean Accident and Guarantee Corporation, Limited, Appellant, v. Otis Elevator Company, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Arthur K. Wing and James G. Purdy for motion.

      Bertrand L. Pettigrew and Ghauncey L. Grant opposed.
   Motion dismissed, without costs, on the ground that the application was not made within the time specified in section 592, subdivision 3, of the Civil Practice Act. (Pollak v. Port Morris Bank, 257 N. Y. 287, 288; Low v. Bankers Trust Co., 265 N. Y. 264, 265; Metropolitan Casualty Ins. Co. v. Public Nat. Bank & Trust Co., 262 N. Y. 614.)

       See, also, Morris v. Chemical Bank & Trust Co. (291 N. Y. 646).— [Rep.


text:
    The People of the State of New York, Respondent, v. Bert Kahn, Also Known as Bert Kalan, Appellant.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Bert Kahn, in person, for motion.
    No one opposed.
   Motion for leave to appeal dismissed. Such a motion cannot be considered by the Court of Appeals under section 520, subdivision 3, of the Code of Criminal Procedure. It cannot be granted by a judge of the Court of Appeals because leave has already been denied by another judge, and because the present application is not made within the time limited by the statute.

       See Code Grim. Pro., § 521; People v. Geffin, 245 N. Y. 75.— [Rep.


text:
    Robert Blume, an Infant, by William F. Blume, His Guardian ad Litem, Appellant, v. City of Newburgh, Respondent, et al., Defendants.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Hiram B. Odell, Jr., Corporation Counsel, for motion to dismiss appeal and in opposition to appellant’s motion to prosecute appeal as a poor person.

      Henry Hunter for motion by appellant to prosecute appeal as a poor person and in opposition to motion to dismiss appeal.
   Motion by respondent to dismiss appeal denied, without costs.

• Motion by appellant for leave to prosecute appeal as a poor person granted.


text:
    Frances Armstrong et al., Appellants, against Richard C. Montgomery, Successor to William A. Schubert, as Comptroller of the City of Yonkers, et al., Respondents.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Richard II. Level for motion.

      Paul L. Bleakley, Corporation Counsel (J. Raymond Hannon of counsel), opposed.
   Motion dismissed, without costs, on the ground that the application was not made within the time specified in section 592, subdivision 3, of the Civil Practice Act. (Pollak v. Port Morris Bank, 257 N. Y. 287, 288; Low v. Bankers Trust Co., 265 N Y. 264, 265; Metropolitan Casualty Ins. Co. v. Public Nat. Bank & Trust Co., 262 N. Y. 614.)


text:
    Mary Carpink, Respondent, v. Fred Karpink, Defendant. Peter A. Lauria, Appellant. (2 cases)
    Submitted October 4, 1943;
    decided October 14, 1943.

      Robert L. Bobrick for motions.

      Jesse Friedman and Nathaniel E. Brotver opposed.
   Motion for a stay denied, with ten dollars costs.

Motion to dismiss appeal denied, with ten dollars costs.


text:
    Louise M. Ennis, Appellant, v. National Bank and Trust Company of Skaneateles, N. Y., as Executor of Edward C. Miller, Deceased, Respondent.
    Argued October 4, 1943;
    decided October 14, 1943.

      Melvin A. Weeks for motion.

      Louise M. Erniis, in person, opposed.
   Motion granted and appeal dismissed, without costs on the ground that no appeal lies as of right, and no permission to appeal has been granted. '


text:
    Julia Pepper, Appellant, v. Charlotte Schmidlin et al., Respondents.
    Submitted October 4, 1943;
    decided October 14, 1943.

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


text:
    Congregation Anshe Sefard of Keap Street, Inc., Appellant, v. Title Guarantee & Trust Company, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 35.)


text:
    Thomas Buono, Appellant, v. Stewart Motor Trucks, Inc., Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Arthur K. Wing for motion.

      Joseph M. Schwartz for appellant.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless the appellant, on or before October 25, 1943, serves and files an undertaking and the case on appeal, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Albert F. Coyle, Appellant.
    Submitted October 4, 1943;
    decided October 14, 1943.

      David P. Siegel for motion.

      Frank S. Hogan, District Attorney (Harold P. Sussman of counsel), opposed.
   Motion to fix bail dismissed. The Supreme Court of the United States has denied application for certiorari. (See 320 U. S. 762.)


text:
    Brighton Operating Corp., Appellant, v. P. Walker Morrison et al., as Trustees, Respondents.
    Submitted October 4, 1943;
    decided October 14, 1943.
   Motion to amend remittitur denied. (See 291 N. Y. 6.)


text:
    Mary E. Lee, Appellant, v. Glens Falls Hospital, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 526.)


text:
    Robert I. Buchholz, Appellant, v. United States Fire Insurance Company, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.

      David A. Tichtin for motion to dismiss appeal and in opposition to appellant’s motion.

      Benjamin SMverts in opposition to motion to dismiss appeal and in support of motion for leave to argue appeal on seven copies of Appellate Division record.
   Motion granted, and appeal dismissed, with costs and ten dollars costs of motion, unless appellant, within ten days, serves and files undertaking on appeal and pays ten dollars costs, in which event the motion is denied; and upon compliance with the aforesaid condition the motion for leave to argue appeal on seven copies of the Appellate Division record is granted.


text:
    In the Matter of the Will of Meri Fobac, Deceased. Tomas Ivancic, Appellant; Antonia Fabac, Respondent.
    Submitted October 4, 1943;
    decided October 14, 1943.

      Frank Gibbons for motion.
    No one opposed.
   Motion granted and appeal dismissed, with • costs, and ten dollars costs of motion.


text:
    William Hodson, as Commissioner of Welfare of the City of New York, on the Complaint of Bertha Hoff, Respondent, v. William Hoff, Appellant.
    Submitted October 4, 1943;
    decided October 14, 1943.
   Motion for reargument denied,' with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 518, 763.)


text:
    In the Matter of Alma M. Fabricius, Appellant, against Board of Education of the City of New York, Respondent.
    Argued October 4, 1943;
    decided October 14, 1943.

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair and Nicholas Bucci of counsel), for motion.

      Alma M. Fabricius, in person, opposed.
   Motion denied, with leave to renew on argument of appeal.


text:
    The People of the State of New York, Respondent, v. William A. Youell, Appellant.
    Submitted October 11, 1943;
    decided October 14, 1943.

      William A. Youell, in person, for motion.
    No one opposed.
   Motion denied on the ground that appellant’s appeal has not been heard on the merits in the Appellate Division and that the order of that court refusing appellant permission to use typed papers there is not appealable.


text:
    John L. Campbell, Respondent, v. City of New York, Appellant.
    Argued May 18, 1943;
    reargument ordered October 21, 1943.
   Reargument ordered and argument set down for November, 1943, session.


text:
    The People of the State of New York, ex rel. Robert Schnabel, Appellant, v. John J. McCloskey, Jr., Sheriff of the City of New York, Respondent, and Rosario G. Schnabel, Intervening Respondent.
    Argued May 20, 1943;
    decided October 21, 1943.

      Herbert C. Smyth and George Natanson for appellant.

      Emanuel Beoher and Benjamin A. Javits for Rosario Gr. Schnabel, intervener, respondent.
   Order affirmed; no opinion.

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


text:
    Robert Leonhardt, Sr., et al., Respondents, v. State of New York, Appellant.
    (Claim No. 25202.)
    Submitted October 4, 1943;
    decided October 21, 1943.

      Jacob 1. Horoivits for motion.

      Nathaniel L. Goldstein, Attorney-General (Burns F. Barford of counsel), opposed.
   Motion granted and appeal dismissed, with costs, and ten dollars costs of motion.


text:
    Helen E. Bing et al., Respondents, v. Consolidated Oil Corporation et al., Respondents. Charles F. Benbrook, Appellant.
    Submitted October 4, 1943;
    decided October 21, 1943.

      Robert J. Marcus for appellant’s motion and in opposition to respondents’ cross motion to dismiss appeal.

      Walter M. Hinkle and Albert R. Connelly for motion to dismiss appeal and in opposition to appellant’s motion.
   Motion for order certifying that a constitutional question is involved herein dismissed.

Motion to dismiss appeal granted and appeal dismissed, with costs and ten dollars costs of motion on the ground that the order does not finally determine the action within the meaning; of the Constitution.


text:
    In the Matter of Nicholas T. Rogers, as Administrator of the Estate of Bruno Burn, Deceased, Respondent, against Albert F. Coyle, Appellant.
    Submitted October 4, 1943;
    decided October 21, 1943,

      Seymour J. Wilner for motion.

      Albert F. Coyle, in person, opposed.
   Motion granted and appeal dismissed, with costs.


text:
    In the Matter of Belmont Paper Box Co., Inc., Judgment Creditor, Respondent, v. John Stephen, Judgment Debtor, Appellant.
    Submitted October 4, 1943;
    decided October 21, 1943.

      James 1. Cuff for motion,

      Isidor Glasgal opposed.
   Motion denied, without prejudice to a renewal thereof upon the argument of the appeal.


text:
    The People of the State of New York ex rel. James J. Archer. Appellant, against Joseph H. Brophy, as Warden of Auburn Prison, Respondent.
    Submitted October 18, 1943;
    decided October 21, 1943.

      James J. Archer, in person, for motion.
    No one opposed.
   Motion denied on the ground that the appellant’s appeal has not been heard on the merits in the Appellate Division; that the order of the Appellate Division refusing appellant permission to use typed papers there is not appealable; and that under the provisions of the Constitution no appeal lies to this court from the order of the Special Term, as of right.


text:
    In the Matter of Helen Barnes, Respondent, against Margaret M. Burnet, Nominee, and S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents, and Herman N. Schwartz, Nominee, Appellant.
    Argued October 21,1943;
    decided October 22, 1943.

      Maxwell J. Eile, A. Welles Stump and Mendel Lurie for appellant.

      Anthony J. Grasiano and Josephine D. Grasiano for Helen Barnes, respondent.

      Edward Eager for Margaret M. Burnet, respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Thomas J. Curran, as Chairman of the Republican County Committee of New York County, et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 21,1943,
    decided October 22, 1943.

      Louis J. Lefkotvits, Alfred, J. Bohlinger and Lester M. Friedman for Thomas J. Curran, as Chairman of the Republican County Committee of New York County, and John J. Knewitz, as Chairman of the Republican County Committee of Bronx County, appellants.

      Alfred J. Bohlinger for George Frankenthaler and David W. Peck, appellants.

      David Halper for Matthew M. Levy, appellant.

      Solomon G. Stember for George Salvatore, respondent.

      Robert H. Elder and Edward J. Fontana for Thomas A. Aurelio, respondent.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B\ Quel of counsel), for Board of Elections, respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of Louis P. Goldberg and Frank Monaco, Individually and as Duly Designated Candidates of the American Labor Party, Kings County, for the Public Offices of City Councilmen of the City of New York, Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, and Richard Mazza and Abraham Bernknopf, Respondents.
    Argued October 22, 1943;
    decided October 22, 1943.

      Israel Gonvisser for appellants.

      Leo J. Linder and Victor Babinowits for Richard Mazza and Abraham Bernknopf, respondents.
   Order affirmed; no opinion.

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


author: Rippey and Conway, JJ.,

text:
    In the Matter of Irving Steinberg, Appellant, against William D. Meisser et al., Constituting the Board of Elections of the County of Nassau, Respondents; Albert A. Arditti, Intervener, Respondent.
    Argued October 21, 1943;
    decided October 22, 1943.

      Abraham, Schlissel and Maurice J. Fleischman for appellant.

      Marcus G. Christ, County Attorney (G. Bur chard Smith of • counsel), for Board of Elections, respondents.

      David Cohen for Albert A. Arditti, intervener, respondent.

      Paul L. Bleahley, Corporation Counsel, for City of Yonkers as amicus curiae.

      Samuel D. Smoleff for Citizens Union of the City of New York as amicus curiae.

   Order affirmed, without costs. The proposed local law is not a new charter but an amendment of the existing charter. We decide no other question.

Concur: Lehman, Ch. J., Loughban, Lewis, Desmond and Thacheb, JJ.

Rippey and Conway, JJ.,

dissent on the ground that the proposed local law changes so essentially the structure of the government of the city as to. constitute a new charter.


text:
    In the Matter of Avon Western Corporation, Appellant, against Daniel P. Woolley, as Commissioner of Public Markets of the City of New York, et al., Respondents.
    Argued October 4, 1943;
    decided November 18, 1943.

      Nathan A. Epstein and Milton E. Sahn for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair, Charles C. Weinstein and Silas S. Lippman of counsel), for respondents.
   Order affirmed, with costs; no opinion. (See 291 N. Y. 823.)

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


text:
    In the Matter of the Claim of Jane Lanning, Respondent, against Erie Railroad Company, Appellant. State Industrial Board, Respondent.
    Argued October 7, 1943;
    decided November 18, 1943.

      William G. Conable for appellant.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Orrin G. Judd of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippet, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Leon B. Kwartler, Respondent, v. Rebecca I. Kwartler, Appellant.
    Submitted October 5, 1943;
    decided November 18, 1943.

      George G. Lake for appellant.

      Morris Akner and Benjamin Koenig for respondent.
   Order affirmed, without costs. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Edwin H. Greenleaf, Appellant, against Jonah J. Goldstein, a Judge of the Court of General Sessions of the County of New York, Respondent.
    Argued October 1943;
    decided November 18, 1943.

      Neile F. Towner and Jeremiah T. Mahoney for appellant.

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

Concur: Lehman, Ch. J., Loughran, Rjppey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    People ex rel. Kendrick A. Luther et al., Individually and as Copartners Doing Business under the Name of The Luther-Keffer Agency, Appellants, against State Tax Commission, Respondent.
    Argued October 5, 1943;
    decided November 18, 1943.

      Daniel P. Cavanaugh (of the Connecticut bar), T. Carlyle J ones and Daniel Miner for appellants.

      Nathaniel L. Goldstein, Attorney-General (John C. Crary, Jr., Orrin G. Judd and Wendell P. Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of James Pallas, Appellant, against Misericordia Hospital, Employer, and State Insurance Fund, Respondent. State Industrial Board, Respondent.
    Argued October 7, 1943;
    decided November 18, 1943.

      Harold I. Cohen, Jay Emanuel and Harvey B. Ehrlich for appellant.

      George J. Hayes and William F. O’Rourke for State Insurance Fund, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Raymond Buholtz, Respondent, against Henry J. Kearse et al., Appellants. State Industrial Board, Respondent.
    Argued October 7, 1943;
    decided November 18, 1943.

      Charles D. Mercer and John D. Sullivan for appellants.

      Nathaniiel L. Goldstein, Attorney-General (Roy Wiedersum, and Orrin G. Judd of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Appellant, v. Lew Wohl et al., Copartners Doing Business as Centerville Dairy and Merchandising Co., Respondents.
    Submitted October 5, 1943;
    decided November 18, 1943.

      Robert O. Blabey and Donald L. Brush for appellant.

      Herbert L. Maltinshy and Harry L. Marcus for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Rosario Cassarino, Respondent, against A. W. Hopeman & Sons Co. et al., Appellants, and Chaplin Dairy Products Co. et al., Respondents. State Industrial Board, Respondent.
    Argued October 7, 1943;
    decided November 18, 1943.

      Charles D. Mercer and John D. Sullivan for appellants.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Sophie D. Cohen, Appellant, v. Eleanor C. Hughes, Respondent.
    Argued October 7, 1943;
    decided November 18, 1943.

      Meyer Kraushaar for appellant.

      Milton Pollack and Frederick Zorn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of John H. Eaton, Respondent, against Webster Motors of Glens Falls, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued October 7, 1943;
    decided November 18, 1943.

      Joseph F. Donovan for appellants.

      Nathaniel L. Goldstein, Attorney-General {Roy Wiedersum and Orrin G. Judd of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Rippey, Lewis, Conway and Desmond, JJ. Lehman, Ch. J., Lottghran and Thacher, JJ., dissent on authority of Matter of Tafft v. Stafford, 266 N. Y. 555.


text:
    In the Matter of Russell Calcagno et al., Appellants, against Town Board of the Town of Webster et al., Respondents.
    Argued October 5, 1943;
    decided November 18, 1943.

      Claude T. Taggart, George J. Skivington and Rudolph F. Napodano for appellants.

      Alan M. Hill for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. John Regan, Appellant.
    Submitted October 4, 1943;
    decided November 18, 1943.
   Motion for reargument granted. (See 291 N. Y. 508.)

Motion for an order waiving the printing of the transcript of testimony taken on the hearing ordered by Hon. John J. Fbeschi of the Court of General Sessions of the County of New York and for a further order permitting the appellant to submit said stenographic typewritten copy of testimony as a part of this motion granted. Case set down for argument on December 6, 1943.

       On motion for a new trial on ground of newly discovered evidence.


text:
    Jasper, Lynch & Fishel, Inc., et al., Respondents, v. Frieda Fingerhood et al., Appellants.
    Submitted October 18, 1943;
    decided November 18, 1943.

      Frederick E. Klein for motion.

      David M. Berger opposed.
   Motion dismissed on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of New York State Guernsey Breeders’ Co-operative, Inc., Respondent, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Submitted October 18, 1943;
    decided November 18, 1943.

      Irving G. Subís and Merritt A. Switzer for motion.

      Robert G. Blabey and Donald L. Brush opposed.
   Motion granted and appeal dismissed with costs and ten dollars costs of motion, on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Joseph Richards, Appellant, against Robert J. Kirby, as Warden of Sing Sing Prison, Respondent.
    Submitted November 15, 1943;
    decided November 19, 1943.
   Motion for reargument denied. (See 291 N. Y. 75.)


text:
    Namstrad, Incorporated, Appellant and Respondent, v. Olavarria & Co., Inc., Respondent and Appellant.
    Submitted November 15, 1943;
    decided November 19, 1943.

      Winthrop E. Kellogg for motion.
    No one opposed.
   Motion granted.


text:
    The People of the State of New York, Respondent, v. Eugene Maciaszczyk, Appellant.
    Submitted November 15, 1943;
    decided November 19, 1943.

      Eugene Maciaszczyk, in person, for motion for leave to appeal and in opposition to motion to dismiss appeal.

      Samuel J. Foley, District Attorney (George Tilzer of counsel), in opposition to defendant’s motion and for motion to dismiss appeal.
   Motion for leave to prosecute appeal as a poor person denied.

Motion to dismiss appeal granted and appeal dismissed on the ground that no direct appeal from the order of the Court of Special Sessions lies to this Court.


text:
    Alexander’s Department Stores, Inc., Respondent, v. Ohrbach’s, Inc., et al., Appellants.
    Submitted November 15, 1943;
    decided November 19, 1943.

      Edward R. Finch, J. Norman Lewis, Edward Kurland and Leo </. Bondy for motion.

      Edward Lasansky, Isidor J. Kresel and Wm. Peyton Marin opposed.
   Motion granted and appeal dismissed with costs, and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Peter Reynolds, Appellant.
    Submitted November 15, 1943;
    decided November 19, 1943.

      Samuel J. Foley, District Attorney (George Tilzer of counsel), for motion to dismiss appeal.

      Peter Reynolds, in person, for motion for leave to appeal.
   Motion to dismiss appeal granted and appeal dismissed on the ground that no direct appeal to this court lies from the order appealed from.

Motion for permission to appeal under section 588 of the Civil Practice Act and for permission to file briefs in typewritten form, denied.


text:
    In the Matter of New York Telephone Company, Appellant. William F. Canough, as Commissioner of Assessment of the City of Syracuse, Respondent. (2 Proceedings — 1941 and 1940 Assessments.)
    Submitted November 15, 1943;
    decided November 19, 1943.
   Motion to amend the remittitur denied with ten dollars costs and necessary printing-disbursements. (See 290 N. Y. 537.)


text:
    Cecelia Rapp, Appellant, v. F. Linwood Myers, Respondent.
    Argued October 5, 1943;
    decided November 24, 1943.

      Fred Forman for appellant.

      Thomas H. Clearwater and William F. Martin for respondent.
   Judgment affirmed) with costs; no opinion.

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


text:
    In the Matter of New York State Labor Relations Board, Respondent, against M. P. H., Inc., Owner and Operator of Madison Park Hospital, Appellant.
    Submitted October 7, 1943;
    decided November 24, 1943.

      Benjamin Lewis, Daniel A. Lynch, John A. King and Stanley Lieberman for appellant.

      Daniel Kornblum and William J. Kridel for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Frank O. Bauer, Treasurer of Rochester State Hospital, Appellant. Thomas Byrne, Sr., Respondent.
    Argued October 11, 1943;
    decided November 24, 1943.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley, Orrin G. Judd and Ruth K. Toch of counsel), for appellant.

      C. N. Whitman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Albert Laham et al., Respondents, v. Domestic Finance Corporation, Appellant.
    Argued October 4, 1943;
    decided November 24, 1943.

      George R. Fear on, Jackson R. Collins, Richard 0. Wiesner and M. Harold Dwyer for appellant.

      Irwin Slater for respondent.
   Orders reversed and complaint dismissed, with costs in all courts, and question certified answered in the negative, on the authority of Di Nome v. Personal Finance Company of New York (291 N. Y. 250) decided herewith. No opinion.

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


text:
    George H. Reich, Respondent, v. Railroad Employees’ Personal Loan Company, Appellant.
    Argued October 4, 1943;
    decided November 24, 1943.

      George B. Fear on, Jackson B. Collins, Bichard 0. Wiesner and M. Harold Dwyer for appellant.

      Irwin Slater for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property Required for the Addition to the Public Beach, bounded by West 15th Street and Other Streets, in the Borough of Brooklyn. City Bank Farmers Trust Co., as Trustee, et al., Respondents and Appellants.
    Argued October 8, 1943;
    decided November 24, 1943.

      Ignatius M. Wilkinson, Corporation Counsel (Reuben Levy and Julius Isaacs of counsel), for City of New York, appellant-respondent.

      Emil N. Baar send. Herbert 8. Camitta for Charles L. Feltman et al., respondents-appellants.

      Milton Loewe for City Bank Farmers Trust Co., as Trustee, etc., respondent-appellant.

      Andrew F. Van Thun, Jr., and Frank A. Kister for West Tenth Street Realty Corporation, respondent-appellant.

      Charles Lamb, William A. Lamb and Walter L. Hopkins for Roy J. Cook et ah, respondents-appellants.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph C. Mascari, alias Joseph C. Patane, Appellant.
    Argued October 11, 1943;
    decided November 24, 1943.

      Stanley Bliss, A. G. Waldo and Howard Zeller for appellant.

      Clarence E. Conley, District Attorney (Nelson L. Neidhardt of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Catherine J. Bannin, Respondent, v. Charles Peck, Appellant.
    Submitted October 8, 1943;
    decided November 24, 1943.

      Frederick E. Zane for appellant.

      Thomas J. Bannin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of John C. G. Wolter, Deceased. David E. Peugeot, as Executor, et al., Respondents; Harvey G. Wolter, Appellant.
    Argued October 11, 1943;
    decided November 24, 1943.

      Matthew A. Tiffany for appellant.

      James A. Deck-op, David E. Peugeot (proponent-respondent in person) and Joseph E. Conners for respondents.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate. No opinion.

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


text:
    In the Matter of David G. Pollock, Appellant, against Board of Regents of the University of the State of New York, Respondent.
    Argued October 11, 1943;
    decided November 24, 1943.

      Louis Susman and Harry H. Oshrin for appellant.

      Nathaniel L. Goldstein, Attorney General (John C. Crary, Jr., Orrin G. Judd, Wendell P. Brown and Ruth K. Toch of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Lawyers Mortgage Company. Brentmore Estates, Inc., et al., Appellants; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of Lawyers Mortgage Company, Respondent. Reorganization Managers op Lawyers Mortgage Company.
    Submitted November 15, 1943;
    decided November 24, 1943.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 291 N. Y. 615.)


text:
    Marisa Morel et al., Respondents, v. Elisha Hanson et al., Appellants.
    Submitted November 15, 1943;
    decided November 24, 1943.

      Joseph A. Niclcerson for motion.

      Herman Kahn opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Albert E. McKenzie, as Trustee in Bankruptcy of Graves-Quinn Corporation, Respondent, v. Irving Trust Company, Appellant.
    Submitted November 15, 1943;
    decided November 24, 1943.

      M. Carl Levine for motion.

      William A. Onderdonk and Paul E. Mead, opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that an appeal lies as of right.


text:
    Carrie Anthony, as Administratrix of the Estate of Tracy A. Anthony, Deceased, Respondent, v. Jennie Schofield, Appellant.
    Submitted November 15, 1943;
    decided November 24, 1943.

      Alton J. Wightman for motion.

      George A. King opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Morris H. Siegel, Respondent, against Harold J. Crawford, a Justice of the Municipal Court of the City of New York, Respondent. Mae Harding, Intervener, Appellant.
    Submitted November 15, 1943;
    decided November 24, 1943.

      Lawrence 8. Timen for motion.

      E. F. W. Wildermuth opposed.
   Motion denied, without costs and without prejudice to a new application to dismiss the appeal upon proof that the service of the notice of appeal was not made within sixty days after service of entry of the order appealed from, or within the period permitted by section 592, subdivision 5-a of the Civil Practice Act.


text:
    In the Matter of Morris H. Siegel, Respondent, against Harold J. Crawford, a Justice of the Municipal Court of the City of New York, Respondent. Mae Harding, Intervener, Appellant.
    Submitted November 15, 1943;
    decided November 24, 1943.

      E. F. W. Wildermuth for motion.

      Lawrence 8. Timen opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that an appeal lies as of right.


text:
    Maria Dorazio, as Administratrix of the Estate of Francesco Dorazio, Deceased, Respondent, v. New York Telephone Company, Defendant, and United Bottle Supply Corporation, Appellant.
    Submitted November 15, 1943;
    decided November 24, 1943.

      James H. Brassel and Fred L. Gross for motion.

      Robert McGowan Smith, Joseph Lonardo and Joseph P. Rudden for plaintiff-respondent, opposed.

      Irving W. Young, H. N. Wells and Ralph W. Brown for defendant New York Telephone Company, opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that the movant may appeal as of right from so much of the determination of the Appellate Division as modifies the recovery against the movant.

On such appeal as of right it may review only the judgment against the appellant and not the judgment as to appellant’s codefendant as to which latter judgment appellant is not a party aggrieved.


text:
    C. Raymond North, Appellant, v. City of Cohoes, et al., Defendants, and Margaret O’Donnell et al., Defendants-Respondents.
    Submitted November 15, 1943;
    decided November 24, 1943.

      John Lane for motion.

      Borden H. Mills opposed.
   Motion granted and appeal dismissed with costs, and ten dollars costs of motion, on the ground that the judgment or order appealed from does not finally determine the action.


text:
    Charlotte W. Wilke et al., Appellants, v. Arthur W. Britton et al., Defendants, and Harvey D. Gibson et al., Defendants-Respondents.
    Submitted November 15, 1943;
    decided November 24, 1943.

      Robert Levine and Harold KorseniTc for motion.

      Thomas Kiernan opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Leopold Mannaberg, Appellant, v. Ely Culbertson et al., Respondents, et al., Defendants.
    Argued November 15, 1943;
    decided November 24, 1943.

      Gustave B. Garfield for motion to have appeal heard on two copies of ease, etc., and in opposition to cross motion to dismiss appeal.

      Jack K or shin for motion to dismiss appeal and in opposition to appellant’s motion.
   Motion to have appeal heard on two copies of case, et cetera, dismissed.

Motion to dismiss appeal granted and appeal dismissed on the ground the order appealed from does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Stephen Rogalski, Appellant, against Walter B. Martin, as Warden of Clinton Prison, Respondent.
    Submitted November 15, 1943;
    decided November 24, 1943.
   Motion to amend remittitur denied. The only question of constitutional law considered and determined by the court was whether the refusal to permit the appellant to challenge by habeas corpus the validity of his conviction, was not a denial of due process. (See 290 N. Y. 751.)


text:
    Moe B. Rubin, as Assignee of Nettie Rubin, Appellant, v. Mary Koppelman et al., Respondents.
    Submitted October 14, 1943;
    decided December 2, 1943.

      Samuel Beinhart and Philip Olan for appellant. •

      Maurice Finlcelstein for Mary Koppelman, respondent.

      Jolwt P. McGrath and John J. Buchley for East New York Savings Bank, respondent.

      Merwin F. Le Vine for Prudential Insurance Company of America, respondent.

      Martin P. Krimko for Raygot Realty Corp. et ah, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Herbert Lewis, Appellant.
    Argued October 19, 1943;
    decided December 2, 1943.

      Paul S eider man, Edward J. Reilly, Nathaniel Kaplan and Victor L. Anfuso for appellant.

      Thomas Gradoch Hughes, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    County of Nassau, Respondent, v. Joseph P. Day et al., as Trustees, Appellants, et al., Defendants.
    Argued October 19, 1943;
    decided December 2, 1943.

      Fred L. Gross for appellants.

      Eugene R. Hurley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bonded Municipal Corporation, Appellant, v. Carodix Corporation et al., Defendants; Joseph P. Day et al., as Trustees, Defendants-Appellants, and County of Nassau, Impleaded Defendant-Respondent.
    Argued October 19, 1943;
    decided December 2, 1943.

      Herbert L. Eutner for plaintiff-appellant.

      Fred L. Gross and Frederick A. Keck for Joseph P. Day et al., as Trustees, etc., defendants-appellants.

      Marcus G. Christ, County Attorney (John J. Knob and G. Bur chard Smith of counsel), for defendant-respondent.
   Judgment affirmed, with costs. Appeal by the defendant-trustees dismissed, without costs, on the ground they are not aggrieved parties. No opinion.

Concur: Lehman, Ch. J., Lottghban, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Max Mayer, Doing Business under the Name of Silver Lady Company, Respondent, v. Jac. Feinberg & Son, Inc., Appellant.
    Argued October 18, 1943;
    decided December 2, 1943.

      Harold L. Fierman and Milton Kunen for appellant.

      Irving Moldauer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    County of Nassau, Respondent, v. Benjamin Davis et al., Defendants, and Helen Jaschek, Appellant.
    Submitted October 19, 1943;
    decided December 2, 1943.

      Nathaniel Taylor for appellant.

      Eugene B. Hurley for respondent.
   Appeal dismissed without costs on the ground that the order does not finally determine the special proceeding within the meaning of the constitution. No opinion.

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


text:
    Carodix Corporation, Respondent, v. Anna Comiskey et al., Defendants, and Alice Seacord, as Executrix and Trustee under the Will of Charles G. Banks, Deceased, Defendant-Appellant.
    Argued October 21, 1943;
    decided December 2, 1943.

      Lyle E. Mahan and Morgan H. Seacord for appellant.

      Sidney H. Posner, Reuben v. K. Posner and Hyman Satenstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur r Lehman, Ch. J., Lottghran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    The People of the State of New York, Respondent, v. Henry B. Lennert, Appellant.
    Argued October 15, 1943;
    decided December 2, 1943.

      Irvin Husin for appellant.

      Frank S. Hogan, District Attorney (Ferdinand J. Wolf and Eunice H. Carter of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Robert Blume, by his Guardian ad Litem, William F. Blume, Appellant, v. City of Newburgh, Respondent.
    Argued October 18, 1943;
    decided December 2, 1943.

      Henry Hunter for appellant.

      Hiram B. Odell, Jr., Corporation Counsel, for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    The People of the State of New York ex rel. John J. Bennett, Jr., as Attorney-General of the State of New York, Appellant, v. Sterling Amherst Farms Dairy, Inc., Respondent.
    Argued October 19, 1943;
    decided December 2, 1943.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Herbert A. Einhorn of counsel), for appellant.

      Frank J. Ryan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William B. Roulstone, Appellant, v. Northern Terminal Corporation of New York et al., Respondents, and James N. Butterly, as Administrator of James N. Butterly, Deceased, et al., Defendants.
    Argued October 15, 1943;
    decided December 2, 1943.

      Bernard Hershkopf and William B. Boulstone, in person, for appellant.

      Charles J. Nehrbas for Northern Terminal Corporation of New York, et al., respondents.

      Reginald 8. Hardy and William J. Kent, Jr., for Catherine J. Heaney, as executrix of Frank J. Heaney, deceased, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippby, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Fred R. Goes, Respondent, v. Gifford Sales & Service, Inc., Appellant, Impleaded with Another, Defendant.
    Argued October 18, 1943;
    decided December 2, 1943.

      Francis T. Lynch, Milton G. Jacobs and William A. Jones for appellant.

      Julius R. Lippman and Edward E. Lippman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Rippey, Lewis, Conway, Desmond and Thaoher, JJ. Lehman, Ch. J., dissents and votes to reverse and to dismiss the complaint.


text:
    In the Matter of Marie Toyos, Respondent, against Henry E. Bruckman et al., Constituting the New York State Liquor Authority, Appellants.
    Argued October 19, 1943;
    decided December 2, 1943.

      ■ Frederick A. Sperling and Flvin N. Edwards for appellants..

      Harold J. Hinman and Leonard Farbstein for respondent.
   Appeal dismissed, with costs on the ground that the order of the Appellate Division does not finally determine the proceeding within the meaning of the Constitution. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Morris Pletman, Appellant.
    Submitted October 22, 1943;
    decided December 2, 1943.

      Sydney B. Snitkm and Saul Pearce for appellant.

      Frank S. Hogan, District Attorney (Ferdinand J. Wolf and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Louise F. Swint, as Administratrix of the Estate of Charles J. Swint, Deceased, Respondent, v. Wm. McEwan Coal Co., et al., Appellants.
    Argued October 15, 1943;
    decided December 2, 1943.

      John J. Conners, Jr., for appellants.

      Arthur B. Lanphier for respondent.
   Judgment affirmed, with costs; no opinion..

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


text:
    In the Matter of New York State Labor Relations Board, Respondent, against Toffenetti Restaurant Company, Inc., Appellant.
    Submitted November 15, 1943;
    decided December 2, 1943.

      Morris Teitelbaum for motion for leave to appeal and in opposition to motion to dismiss appeal.

      William E. Grady, Jr., and Daniel Kornblum for motion to dismiss appeal and in opposition to motion for leave to appeal.
   Motion for leave to appeal denied with ten dollars costs and necessary printing disbursements.

Motion to dismiss appeal granted, and appeal dismissed with costs and ten dollars costs of motion, on the ground that no question under the Constitution of the State of New York or under the Constitution of the United States is involved.


text:
    In the Matter of Reader Mail, Inc., Appellant, against Sol Fishko, as President of Paper Workers & Distributing Trades Union, Local 447 of International Printing Pressmen and Assistants’ Union of North America, A. F. of L., an Unincorporated Association, Respondent.
    Submitted November 22, 1943;
    decided December 2, 1943.

      Lloyd B. Ranter and Oscar A. Lewis for motion.

      Mildred Both and Frank Bcheiner opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Reader Mail, Inc., Appellant, v. Sol Fishko, as President of Paper Workers & Distributing Trades Union, Local 447 of International Printing Pressmen and Assistants’ Union of North America, A. F. of L., an Unincorporated Association, Respondent.
    Submitted November 22, 1943;
    decided December 2, 1943.

      Mildred Both and 'Frank Scheiner opposed.
   Motion dismissed with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Sterling National Bank & Trust Company of New York, as Trustee, Respondent, v. 1231 Park Ave. Holding Co., Inc., et al., Defendants. Joshua Morrison et al., Appellants.
    Submitted November 22, 1943;
    decided December 2, 1943.

      Leslie Kirsch for motion.

      Mitchell Salem, Fisher opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days appellants file the required undertaking and pay ten dollars costs, in which event the motion is denied, with leave, however (if the undertaking be so filed and the ten dollars costs paid), to plaintiff to raise anew on the argument, if it be so advised, the question as to whether appellants are parties aggrieved.


text:
    The People of the State of New York, Respondents, v. Louis Valle, Appellant.
    Argued October 13, 1943;
    decided December 8, 1943.

      Elvin N. Edioards and Joseph Lonardo for appellant.

      Ediuard J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
   Judgment of conviction [of murder in the first degree] affirmed. Appeal from judgment of conviction of murder in. the second degree dismissed. No opinion.

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


text:
    City of Little Falls, Respondent, v. State of New York, Appellant. City of Little Falls, Respondent, v. State of New York, Appellant.
    Claim No. 25,847. Claim No. 25,848.
    Argued October 8, 1943;
    decided December 8, 1943.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Orrin G. Judd of counsel), for appellant.

      James A. McTiernan for respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    Phebe Langrick et al., Plaintiffs, and Mary J. L. Frank, Plaintiff-Appellant, v. Richard Rowe et al., Defendants, and Thomas F. Rowe et al., Defendants-Respondents.
    Argued October 14, 1943;
    decided December 8, 1943.

      Jay Leo Rothschild and Samuel F. Frank for appellant.

      Milton W. Levy and Joseph T. Arenson for respondents.
   Order affirmed, without costs, upon the ground that when the appellant applied at Special Term for an order authorizing her to withdraw the fund deposited with the City Treasurer pursuant to the terms of the partition judgment in the above captioned action, she failed to give notice of such application, as required by rule 32 of the Rules of Civil Practice, to the attorneys for all parties who had appeared therein or filed notice of claim to such fund. We do not pass upon the merits of the controversy. No opinion.

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


text:
    In the Matter of the Accounting of Stella Wechsler et al., as Executors of Sigmund Wechsler, Deceased. Virginia W. Fields et al., Appellants-Respondents; Irving Trust Company, Respondent-Appellant; Doris W. Freiden, Respondent. (Seven Consolidated Appeals)
    Argued May 27,1943;
    decided December 8, 1943.

      J. Alvin Van Bergh, Joseph M. Proskauer and Charles Loolcer for Virginia W. Fields, appellant-respondent.

      Forrest M. Anderson, Raymond M. White and Norman B. Murphy for Irving Trust Company, respondent, and for Gifford, Woody, Carter and Hays, respondents-appellants.

      Helen L. Buttemuieser for Stella Wechsler, appellant-respondent.

      Richard 8. Wechsler, in person, and also for Catherine W. Palmer, appellants-respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Sigmund Wechsler, Deceased. Stella Wechsler, Appellant; Irving Trust Company, as Trustee, et al., Respondents.
    Argued May 27, 1943;
    decided December 8, 1943.

      Helen L. Buttenwieser for appellant.

      Forrest M. Anderson, Raymond M. White and Norman B. Murphy for Irving Trust Company, as trustee, respondent.
   Order affirmed with costs to the trustee-respondent, payable , out of the estate; no opinion.

Concur: Lehman, Ch. J., Lohghban, Rippet, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    In the Matter of the Estate of Albert A. Troescher, Deceased. State Tax Commission, Appellant, Anna E. Troescher et al., as Executors of Albert A. Troescher, Deceased, Respondents.
    Argued October 7, 1943;
    decided December 8, 1943.

      Mortimer M. Kassell and Paul Newman for appellant.

      Christian PL. Genghof, James D. Ewing and Lasater Terrell for respondents.
   Order affirmed, with costs. The motion to modify having been made within two years after the entry of the order originally fixing the tax, the order appealed from was within the power of the Surrogate. (Matter of Willets, 190 N. Y. 527; Tax Law, § 249-aa.) No opinion.

Concur: Lehman, Ch. J., Lotjghban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Harry L. Baker et al., as Stockholders of Tubular Textile Machinery Corporation, Appellants and Respondents, v. Samuel Cohn et al., Respondents and Appellants.
    Submitted November 29, 1943;
    decided December 8, 1943.

      David Haar, Morris Kirschstein and Louis Jersawit for motion.

      Bernard W. Cohen opposed.
   Motion denied, with leave to renew upon the oral argument of the appeal.


text:
    William Hodson, as Commissioner of Welfare of the City of New York, on the Complaint of Bertha Hoff, Respondent, v. William Hoff, Appellant.
    Submitted December 6, 1943;
    decided December 8, 1943.

      Noah Seedman for motion.
    No one opposed.
   Motion to resettle order of October 14, 1943, granted. Chapter 777 of the Laws of 1942 has removed from the statute those provisions which previously authorized the court to grant costs upon appeals from orders made in filiation proceedings in the city of New York.

       Amdg. New York City Criminal Courts Act in relation to security for costs on appeal.— [Rep.


text:
    The People of the State of New York, Respondent, v. Alphonse Alessi, Appellant.
    Submitted December 6, 1943;
    decided December 8, 1943.

      Alphonse Alessi, in person, for motion.
    No one opposed.
   Motion to prosecute appeal as a poor person denied.

Motion for leave to appeal from the order of the County Court dismissed on the ground that the order sought to be reviewed is not appealable directly to this Court.


text:
    Walter Schwartz, Appellant, v. Bausch and Lomb Optical Company, Respondent.
    Argued November 15, 1943;
    decided January 6, 1944.

      Leo G. Hosenfeld and William L. Clay for appellant.

      Morgan F. Bisselle and Warren G. Tucker for respondent.
   Judgment affirmed, with costs, on the authority of Scherim v. Titanium Alloy Co. (286 N. Y. 531). No opinion.

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


text:
    New York Telephone Company, Appellant, v. New York City Tunnel Authority, Respondent.
    Argued November 22, 1943;
    decided January 6, 1944.

      Irving W. Young, Carl M. Abromeit, Earle M. Simonson, Hugh N. Wells and Charles T. Bussell for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair and Alfred D. Jahr of counsel), for respondent.
   Judgment affirmed, with costs; no opinion. See Matter of Young v. Kracke (262 App. Div. 67, affd. 287 N. Y. 634, reargument denied, 287 N. Y. 754); Bachmann v. New York City Tunnel Authority (263 App. Div. 945, appeal dismissed, 288 N. Y. 707).

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


text:
    The People of the State of New York, Respondent, v. Albie L. Hotchkiss, Appellant.
    Argued November 24, 1943;
    decided January 6, 1944.

      Joseph Stein for appellant.

      Joseph A. Devins, District Attorney (Beverly S. Galloway of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loiighran, Rippby, Lewis, Conway, Desmond and Thachee, JJ.


text:
    Belle E. Sommerich, Respondent, v. Joseph B. Miller, Individually and as Trustee of Series N-69 of New York Title and Mortgage Company, Appellant.
    Argued November 29, 1943;
    decided January 6, 1944.

      Reid A. .Curtis for appellant.

      Seymour J. Wilner and Walter M. Weis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lena Schwartz, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.
    Argued December 1, 1943;
    decided January 6, 1944.

      William R. McDermott, James D. Ewing and Eugene Z. Du Bose for appellant.

      Morton Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William B. Sachs, Appellant, v. Cluett Peabody & Co., Inc., Respondent.
    Argued November 15, 1943;
    decided January 6, 1944.

      Elkon Turk, George Gaskill and Herman Goldman for appellant.

      William Piel, Jr., Edward H. Green and Roy L. Steinheimer, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Hazel Sheppard, Made on Behalf of Reginald Fludd, Respondent, against Albert J. Demps, et al., Appellants.
    Argued November 16, 1943;
    decided January 6, 1944.

      Floyd Coursen and Harry Wareham for appellants.

      Abraham, Markoff for respondent.
   Appeal dismissed, without costs, on the ground that the order does not finally determine the proceeding within the meaning of the Constitution. No opinion.

Concur: Lehman, Ch. J., Loughran, Rippby, Lewis, Conway Desmond and Thacher, JJ.


text:
    In the Matter of James Coleman et al., Appellants, against John H. Delaney et al., Constituting the Board of Transportation of the City of New York, et al., Respondents.
    Argued November 16, 1943;
    decided January 6, 1944.

      William H. Barrow for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Charles F. Murphy of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Katherine G. Burri, Individually and as President of the Civil Service Forum, Council 189, et al., Respondents, against City of New York et al., Appellants.
    Argued November 18, 1943;
    decided January 6, 1944.

      Ignatius M. Wilkinson, Corporation Counsel (Murray Sendler and Charles F. Murphy of counsel), for appellants.

      Albert De Boode for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Anna S. Gwydir, Jr., et al., Appellants, v. Albert Cowdell, Jr., Respondent.
    Argued November 22, 1943;
    decided January 6, 1944.

      ■ Frederick N. Van Zandt for appellants.

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair and Charles F. Murphy of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Catherine F. Brew, as Executrix of Mona B. Seidl, Deceased, Appellant, v. Henry Behrenhoff, Respondent.
    Argued December 1, 1943;
    decided January 6, 1944.

      Myron Wisoff and Samuel J. Moskowits for appellant.

      Herbert F. Hastings, Jr., andF. G. Mann for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    H. P. Drewry, S. A. R. L., Appellant, v. Aristoteles v. Onassis, Respondent.
    Argued November 16, 1943;
    decided January 6, 1944.

      Henry 8. Bacon and Selden Bacon for appellant.

      Oscar R. Houston, T. Catesby Jones and Francis X. Nestor for respondent appearing specially.
   Judgment affirmed, with costs; no opinion.

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


text:
    J. Numa Jordy, Appellant, v. Frango Corporation, Respondent.
    Argued November 18, 1943;
    decided January 6, 1944.

      Alexmtder Pfeiffer, Julius D. Freilicher and Myron P. Gordon for appellant.

      Thomas J. Blahe and James A. Walsh for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary V. Williams, as Administratrix of the Estate of Thomas J. Williams, Deceased, Respondent, v. County of Saratoga, Appellant, Impleaded with Paul Wiley, Defendant.
    Argued November 24, 1943;
    decided January 6, 1944.

      John W. Nichols., County Attorney (John A. Slade of counsel), for appellant.

      John F. Boyle for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Ríppey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Paul, Swiderski, Respondent, v. Abe Steinhorn et al., Doing Business as Owners of Grand Mountain Hotel, Appellants.
    Submitted December 1,1943,
    decided January 6, 1944.

      B. G. Barton for appellants.

      Myron Wisoff and Sylvia Miller for respondent.
   Judgment affirmed, with costs; no opinion. •

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


text:
    The People of the State of New York, Respondent, v. N. Sumergrade & Sons, Inc., Appellant. (3 cases.)
    Argued November 17, 1943;
    decided January 6, 1944.

      Alexander'-Stone, Murry G. Beeher and Dmiel G. Boss for appellant.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and Henry S. Manley of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Louis H. Pink, Superintendent of Insurance of the State of New York, as Conservator of Property and Assets of Union Indemnity Company in the State of New York, Appellant, v Kraus & Silverman, Inc., Respondent.
    Submitted November 19, 1943;
    decided January 6, 1944.

      Clarence E. Mellen for appellant.

      James J. McLoughlin and John J. Kirwan for respondent.
   Judgment affirmed, with costs on the authority of Semanchuck v. Fifth Ave. & 37th St. Corp. (290 N. Y. 412). No opinion.

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


text:
    In the Matter of Alma M. Fabricius, Appellant, against Board of Education of the City of New York, Respondent.
    Argued November 15, 1943;
    decided January 6, 1944.

      Alma M. Fabricius in person for appellant.

      Ignatius M. Wilkinson, Corporation Counsel (Nicholas Bucci and James Hall Prothero of counsel), for respondent.
   Appeal dismissed, without costs, on the ground that no substantial constitutional question is involved. No opinion.

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


text:
    In the Matter of the City of New York, Acting on Behalf of the New York City Housing Authority, Respondent, Relative to Acquiring Title to Lands Situated in the Area Bounded by Prince and Other Streets in the Borough of Brooklyn, Pursuant to a Plan Determined upon by said New York City Housing Authority (Fort Greene Houses). Brooklyn Union Gas Company, Appellant.
    Argued November 17, 1943;
    decided January 6, 1944.

      Jackson A. Dykman, Augustus J. Wheeler and Dimitri G. Eristoff for appellant.

      Ignatius M. Wilkinson, Corf oration Counsel (Herman Horowitz and Murray Sendler of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Augusta J. Hart et al., Appellants, v. Samuel M. Morgenstern et al., Respondents, Impleaded with Others, Defendants.
    Argued November 19, 1943;
    decided January 6, 1944.

      R. E. Burdick and Lewis M. Isaacs, Jr. for appellants.

      David I. Michaelson and Sidney Sheingorn for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. 270 Park Avenue Corporation, et al., Respondents, against James J. Sexton et al., as Commissioners of Taxes and Assessments of the City of New York, et al., Appellants.
    Argued November 18, 1943;
    decided January 6, 1944.

      Ignatius M. Wilkinson, Corporation Counsel {Arthur H. Goldberg and Edmund B. Hennefeld of counsel), for appellants.

      Herbert C. Smyth, Jr., George Natanson and Gerald Dwyer for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Daphne Hellman, Appellant, for an Order Awarding Her the Custody of Alexander Bull, an Infant. Harry Bull, Respondent-Appellant.
    Argued November 22, 1943;
    decided January 6, 1944.

      I. Maurice Wormser, René A. Wormser and Michael J. Kiely, Jr., for petitioner-appellant.

      George W. Whiteside, Dwight R. Collin and Henry A. Bull for1 respondent-appellant.
   . Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghban, Rippey, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Max Herring, as Administrator of the Estate of Pearl Herring, Deceased, Respondent, v. J. B. Slattery & Bros., Inc., Respondent, and New York City Housing Authority, Appellant.
    Argued November 29, 1943;
    decided January 6, 1944.

      Charles F. Bachmann, Robert H. Nix and J ohn P. Smith for appellant.-

      Jacqitin Frank and Louis Sirota for plaintiff-respondent.

      Robert L. Callahan for defendant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Mary McAllen, Respondent, against James Marshall et al., Constituting the Retirement Board of the Board of Education Retirement System of the City of New York, Appellants.
    Argued December 1, 1943;
    decided January 6, 1944.

      1 Ignatius M. Wilkinson, Corporation Counsel (Nicholas Bucci, James H. Prothero and Edna Classman of counsel), for appellants.

      David A. Savage and John F. O’Shea for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Charles T. Homewood, Deceased. Emma W. Eggert et al., Appellants; Frank P. Wolfe, Respondent.
    Argued November 15, 1943;
    decided January 6, 1944.

      Marry M. Young and Frank J. Militello for appellants.

      Gerald G. Gibbs and Anthony J. Rizzo for respondent.
   Appeal dismissed, without costs on the ground that the order does not finally determine the proceeding, within the meaning of the Constitution. No opinion.

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


text:
    Sylvester Holmes, Respondent, v. County of Erie, Appellant.
    Argued November 15, 1943;
    decided January 6, 1944.

      Elmer R. Weil and Ralph A. Lehr for appellant.

      Harry Rosenberg, Monroe County Legal Adviser, as amicus curiae, in support of appellant.

      Truman H. Preston, County Attorney, and Charles T. Major for Onondaga County and New York State County Officers’ Association, as amici curiae in support of appellant.

      Michael Catalano and Jacob Weissfeld for respondent.
   Order affirmed with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Blanche Marquis, Appellant, v. Leonard J. Marquis et al., Respondents.
    Argued November 16, 1943;
    decided January 6, 1944.

      ' Henry Epstein for appellant.

      H. H. Nordlinger and Jacob I. Gharney for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of Edward McDonnell, Appellant, against Abram W. Skidmore, as Commissioner of the Police Department of the County of Nassau, et al., Respondents.
    Argued January 4, 1944;
    decided January 6, 1944.

      Saul B. Bradie, Leonard Acker, Philip Waters and Sidney S. Hein for appellant.

      Marcus P. Christ, County Attorney (J. Oakey McKnight of counsel), for respondents.
   Appeal dismissed, without costs; no opinion.

Concur: Lehman, Ch. J., Lohghran, Rippey, Lewis, Conway, Desmond and Thacher, JJ.


text:
    Laura Solomon, Respondent, v. Charles Solomon, Appellant.
    Submitted December 6, 1943;
    decided January 6, 1944.
   Motion for reargument denied (See 290 N. Y. 337).


text:
    The People of the State of New York, Respondent, v. Patrick O’Rafferty and Bruno Makara, Appellants.
    Submitted December 6, 1943;
    decided January 6, 1944.

      Frank S. Hogan, District Attorney (Alan J. Elliot of counsel), for motion.

      Patrick O’Rafferty, in person, opposed.
   Motion granted and appeals dismissed on the ground that none of the orders is appealable to this court.


text:
    The People of the State of New York, Respondent, v. Herbert Lewis, Appellant.
    Submitted January 3, 1944;
    decided January 6, 1944.
   Motion for reargument denied. (See 291 N. Y. 731.)


text:
    Louis H. Riedell, Respondent, v. S. Karpen & Bros., Appellant; Laboratory Furniture Co., Inc., Respondent; et al., Impleaded Defendants.
    Argued December 2, 1943;
    decided January 13, 1944.

      William C. Morris and Edward M. Fuller for appellant.

      Charles Margett and Benjamin H. Siff for plaintiff-respondent.

      Joseph Kane and George J. Stacy for defendant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Theodore Randell, Appellant.
    Submitted November 24, 1943;
    decided January 13, 1944.

      Robert Mitchell for appellant.

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

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


text:
    Kathryne S. Tontrup et al., Appellants, v. Rector Church Warden and Vestrymen of St. Bartholomew’s Church in the City of New York, Respondents.
    Argued November 30, 1943;
    decided January 13, 1944.

      Francis J. Hughes for appellants.

      Lyman A. Spalding and Robert E. Curran for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Rippey, Lewis, Desmond and Thacheb, JJ. Conway, J., dissents on the ground questions of fact were presented for the jury as to defendants’ negligence and plaintiff’s freedom from contributory negligence.


text:
    Hedwig Sieniewicz, as Administratrix of, the Estate of Feliks Sieniewicz, Deceased, Appellant, v. Merusad Realty Corp., Respondent.
    Argued December 2, 1943;
    decided January 13, 1944.

      Joseph J. Brophy, Edward A. Shandell, Desmond T. Barry and Abbott L. Levine for appellant.

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

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


text:
    Yetta Schuss, Appellant, v. La Brug Holding Corporation, Respondent.
    Argued December 2, 1943;
    decided January 13, 1944.

      Myron Wisoff and Louis Bothbard for appellant.

      H. H. Brown and E. G. Sherwood for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Lewis, Desmond and Thacheb, JJ. Rippey and Conway, JJ., dissent on the ground that questions of fact were presented for the jury as to defendant’s negligence and plaintiff’s freedom from contributory negligence.


text:
    Stephen Kostka, Respondent, v. George E. Stack, Appellant.
    Argued December 3, 1943;
    decided January 13, 1944.

      Alfred L. Simon for appellant.

      Carl L. McMahonio? respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    J. Hermon McLear, as Director and Officer of McLear Mines, Inc., Appellant, v. Clara McLear and Herbert G. McLear, Respondents, et al., Defendants.
    Argued October 6, 1943;
    decided January 13, 1944.

      Benedict 8. Bosenfeld, Benjmnin Algase, Arthur B. Hart and Albert Jalcobson for appellant.

      Herbert G. McLear, respondent, in person.

      Alfred J. Gonforti for Clara McLear, respondent.
   Judgments affirmed, with costs, on the ground that plaintiff has not shown facts sufficient to raise an issue with respect to the verity and conclusiveness of the documentary evidence establishing acquiescence and ratification on his part. The ten-year Statute of Limitations is the statute applicable. No opinion.

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


text:
    Walter D. Ludlum, Respondent, v. Kathryn E. Haskins et al., Respondents, and Marie T. West et al., Appellants.
    Argued November 23,1943;
    decided January 13, 1944.

      Egbert W. Doughty for appellants.

      Clarence F. Corner and Gilbert F. Regan for plaintiff-respondent.

      Benjamin Cohn for defendants-respondents.
   Costs and disbursements waived by all parties. Judgment affirmed, without costs; no opinion.

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


text:
    Edmund Seaman, Appellant, v. Aetna Casualty and Surety Company, Respondent et al., Defendants.
    Argued December 1, 1943;
    decided January 13, 1944.

      Elwood C. Smith for appellant.

      George F. Roesch for defendant-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Premium Point Company, Respondent, v. Emigrant Industrial Savings Bank, Appellant.
    Argued December 2, 1943;
    decided January 13, 1944.

      John E. McAniff, Joseph A. Doran and Edwin A. Berbery foi appellant.

      Osmond K. Fraenbel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of Emma B. Johnson, Deceased. Norma D. Owen et al., Appellants; Norman W. Roe et al., Respondents.
    Argued November 17, 1943;
    decided January 13, 1944.

      Nathan L. Miller and Frederick M. Schlater for Norma D. Owen appellant.

      Frederick M. Schlater for George B. Dare, appellant.

      Archibald B. Watson, Harold B. Medina, Balph 0. Willguss and Lamar Hardy for Norman W. Roe, respondent.

      Samuel B. Stewart, Jr., Bruce Bromley, Bobert H. Wilson, Jr., Gerald Fitzgerald and Louis A. Perkins for charitable and other legatees, respondents.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate, and questions certified answered in the negative. No opinion.

Concur: Lehman, Ch. J., Loughban, Rippby, Lewis, Conway, Desmond and Thacheb, JJ.


text:
    Minnie Manchik, Respondent, v. Pinelawn Cemetery, Respondent, et al., Appellant.
    Argued November 29, 1943;
    decided January 13, 1944.

      Lewis G. Evans for appellant.

      G. Elmer Bpedick and Arthur L. Reuter for plaintiff-respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helene H. Burow, Appellant, v. Orison C. Bouton et al., Respondents.
    Argued December 1, 1943;
    decided January 13, 1944.

      John B. Bushong for appellant.

      Alexander Brand for respondents.
   Judgment of the Appellate Division reversed, and the judgment entered upon the decision of the Official Referee affirmed, with costs in this court and in the Appellate Division, on the ground that the decision of the Official Referee is in accord with the weight of the evidence. No opinion.

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


text:
    In the Matter of Morris H. Siegel, Respondent, against Harold J. Crawford, a Justice of the Municipal Court of the City of New York, Respondent. Mae Harding, Intervener, Appellant.
    Submitted January 3, 1944;
    decided January 13, 1944.

      E. F. W. Wildermuth for motion.

      Lawrence S. Timen opposed.
   Per Curiam.

The motion is granted to the extent that the respondent is directed to accept service of notice of appeal from the order of the Appellate Division entered on the 7th day of July, 1943. The other orders appealed from are not appealable to this court without permission of the Appellate Division. The appeal so taken must be perfected by giving of a new bond within ten days from date.


text:
    In the Matter of Frank C. Uitz, Jr., Appellant, against Frederick Moran et al., as Commissioners of the State Board of Parole, Respondent.
    Submitted January 3, 1944;
    decided January 13, 1944.

      Frank C. Uits, Jr., in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Wortley P. Paul of counsel), opposed.
   Motion for leave to prosecute appeals as a poor person denied on the ground no appeal lies as of right from the orders appealed from.


text:
    The People of the State of New York ex rel. Louis Monsky, Appellant, against Walter B. Martin, as Warden of Clinton Prison, Respondent.
    Submitted January 3, 1944;
    decided January 13, 1944.

      Nathaniel L. Goldstein, Attorney-General (Patrick H. Glune, Orrin G. Judd and Ruth K. Toch of counsel), for Motion to dismiss appeal and in opposition to appellant’s motion.

      Louis Monsky, in person, for motion for leave to prosecute appeal on original record et cetera, and in opposition‘to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed on the ground that no substantial constitutional question is involved in the appeal from the order of the Appellate Division and that no appeal lies as of right from that order.

Motion for assignment of counsel and for leave to prosecute appeal on original record and typewritten brief denied.


text:
    Abraham Moliver, as Administrator of the Estate of Isidore Moliver, Deceased, Appellant, v. Samuel Knebel, Respondent.
    Submitted January 3, 1944;
    decided January 13, 1944.

      Morris Felder for motion.
    ! Harry J. McDermott opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements on the ground that the judgment does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Avon Western Corporation, Appellant, against Daniel P. Woolley, as Commissioner of Public Markets of the City of New York, et al., Respondents.
    Submitted January 3, 1944;
    decided January 13, 1944.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: The petitioner appellant contended that section B36-83.0 of the Administrative, Code of the City of New York (L. 1937, eh. 929) violates the provisions of the Fourteenth Amendment to the Constitution of the United States. This court held that the aforesaid provisions of the Administrative Code of the City of New York do not violate the Fourteenth Amendment to the Constitution of the United States. (See 291 N. Y. 687.)


text:
    Multiple Trading Corporation, Appellant, v. Demola Realty Corporation et al., Respondents, Impleaded with Others.
    Submitted January 3, 1944;
    decided January 13, 1944.
   Motion to amend the remittitur, to vacate the order of affirm- . anee of the Court of Appeals, dated July 29, 1942, to relieve appellant of certain stipulations and for leave to appellant to apply to the courts below for any relief to which appellant deems itself entitled, denied, with ten dollars costs and necessary printing disbursements. (See 289 N. Y. 559.)


text:
    Maurice F. Simon, Appellant and Respondent, v. Noma Electric Corporation et al., Respondents and Appellants, et al., Defendants.
    Submitted January 3, 1944;
    decided January 13, 1944.

      David J. Colton and Joseph Lieberman for motion.

      Philip Warshaw for Noma Electric Corporation, Air Conditioners Sales Corporation and Henri Sadacca, defendants, respondents and appellants.
   Motion to dismiss appeal denied and substitution denied, without prejudice to an application to be made under section 578 of the Civil Practice Act. The court has no power to grant a motion substituting the next of kin.


text:
    The People of the State of New York, Respondent, v. Victor J. Garity, Appellant.
    Submitted January 3, 1944;
    decided January 13, 1944

      Charles P. Sullivan, District Attorney (James F. T. Delaney of counsel), for motion to dismiss appeal and in opposition to motion for enlargement of time.

      Victor J. Garity, in person, for motion for enlargement of time and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed on the ground that no appeal lies as of right.

Motion for enlargement of time denied.


text:
    The People of the State of New York ex rel. Charles Morriale, Appellant, against Vernon C. Branham, as Superintendent of Woodbourne Institution for Defective Delinquents, Respondent.
    Submitted January 3, 1944;
    decided January 13, 1944.
   Motion for reargument granted. (See 291 N. Y. 312.)


author: Loughran, J.

text:
    Charles S. Scholen, as Limited Administrator C. T. A. of the Estate of Frederick B. Aebly, Deceased, Respondent, v. Guaranty Trust Company of New York, Appellant.
    Submitted October 20, 1943;
    decided January 13, 1944.

      Theodore Kiendl, Otis T. Bradley and Russel S. Coutant for appellant.
    I. Tbe order appealed from should be reversed and tbe certified question answered in tbe negative. Tbe controlling statute is section 48, subdivision 1, of tbe Civil Practice Act, which provides that an action upon a contract obligation or liability express or implied must be commenced within six years after tbe cause of action accrued. The present action was begun more than nine years after tbe alleged breach of tbe contract. {New York & Boston Despatch Express Go. v. Gar-roll, 170 App. Div. 197; Keys v. Leopold, 241 N. Y. 189; Ochs v. Woods, 221 N. Y. 335; Brick v. Gohn-Eall-Marx Co., 276 N. Y. 259.) II. Section 57 of tbe Civil Practice Act is inapplicable.

      Edward A. Scott, Jr., for respondent.
    I. Tbe cause of action did not accrue until plaintiff was appointed administrator with tbe will annexed in February, 1941, and tbe Statute of Limitations did not commence to run against tbe claim until tbe issuance of such letters of administration. {Moore v. Maddock, 224 App. Div. 401; Titus v. Wallick, 222 App. Div. 17; Seymour v. Mechan: hcs & Metals Nat. Bank, 199 App. Div. 707; Civ. Prac. Act, § 11; -Dunning v. Ocean Nat. Bank, 61 N. Y. 497; Sanford v. Sanford, '■62 N. Y. -’553.-; Bucklin v. Ford, 5 Barb. 393; Grapo v. City of fSyracuse, 183-N. Y. 395; American Ry. Co. v. Coronas, 230 F. ■545.-) II. Tbe contract did-not provide any specific time when it 'wás to In tbe absence specific limitation 'df time for performance, tbe law provides that performance be within a reasonable time. What constitutes a reasonable .time would .be for .determination .upon tbe trial by tbe jury. (Moore v. Maddock, 224 App. Div. 401; Ahrens v. Guaranty Trust Go., 125 Mise. 443.)
   Loughran, J.

Plaintiff sues as limited administrator the will annexed of Frederick B. Aebly, deceased. Guaranty Trust Company of New York is the defendant. A previous contest between the same parties in respect of the same subject matter was heretofore dealt with by this court (288 N. Y. 249). Following our decision of that appeal, the plaintiff discontinued the former controversy and commenced the present action.

This complaint like its predecessor contains two causes of action. The first cause is new to a degree and is this in substance: The last will and testament of the plaintiff’s testator named the defendant trust company as sole executor and trustee and was delivered by the testator to the defendant in reliance on its promise to use due diligence in holding said will during the lifetime of said maker, offering the same for probate upon his death, applying for letters testamentary and entering upon the discharge of its duties as such executor, or, if, at the time of his death, it did not desire to offer said will for probate or qualify as such executor then, and in that event, to notify the legatees named therein of the existence of such will and within a reasonable time thereafter, deliver the same into the Surrogate’s Court where the same could be offered for probate by any person or persons lawfully entitled to do so; ” this undertaking of the defendant was ignored by it with the result that on the testator’s death his estate was distributed by the Public Administrator of Richmond County to next of kin residing in the Republic of Switzerland, none of whom was mentioned in the will; thereafter the defendant made deposit of the will in the office of the clerk of the Surrogate’s Court of Richmond County together with a renunciation of all right to act as the execiitor and trustee nominated in the instrument.

We assume in favor of the plaintiff that this first cause of action sufficiently alleges an express promise of the defendant trust company to be active in an endeavor to learn of the testator’s death within a fitting time after that event should befall. Such an undertaking, express or implied, was an indispensable condition of the asserted liability of the defendant to the testator’s legatees, as we held on the former appeal (288 N. Y. 249). The second canse of action states once more matters which we then held would he “ sufficient to permit the trier of the facts to find the assumption of a duty by the defendant to exercise care to discover within a reasonable time the death of plaintiff’s testator.” (288 N. Y. 249, 254.)

On the ground that this action is barred by the Statute of Limitations, the defendant trust company moved at Special Term for dismissal of the complaint under rule 107. The motion was denied. The Appellate Division affirmed and gave leave to the defendant to present to us this question: “ On the record on appeal herein did the cause of action accrue within the time limited by law for the commencement of an action thereon? ”

Both causes of action come down to quite the same thing, namely, a breach by the defendant trust company of its express promise or implied duty to benefit the testator’s legatees by the exercise of such diligence as would be likely to afford it timely notice of his death. The liability arose át the time-of the omission by the defendant of the care it undertook to use, and not at the time this omission was found out by the beneficiaries of the defendant’s duty. The loss which resulted meantime was not a new cause of action, but a measure of damages merely. (See Northrop v. Hill, 57 N. Y. 351, 355, 356; Campbell v. Culver, 56 App. Div. 591; Crowley v. Johnston, 96 App. Div. 319; Allen v. Todd, 6 Lansing, 222, 224; 19 Halsbury’s Laws of England, pp. 42, 43.) The applicable limitation is the six-year period. (Civ. Prac. Act, § 48, subd. 1.)

The orders should bo reversed and the motion to dismiss the complaint granted, with costs in all courts. The question certified should be answered in the negative.

J., Bippey, Lewis, DesmoNd and Teacher, JJ., concur.

Orders reversed, etc.