author: Lewis, J. Fboessel, J.

text:
    John Bryant, Appellant, v. Presbyterian Hospital in the City of New York, Respondent.
    Argued October 16, 1952;
    decided January 15, 1953.

      Irwin Isaacs for appellant.
    Plaintiff established a prima facie case, requiring defendant to go forward with the evidence, and the trial court erred in dismissing the complaint at the end of plaintiff’s case. (White v. Prospect Heights Hosp., 278 App. Div. 789; Howe v. Medical Arts Center Hosp., 261 App. Div. 1088, 287 N. Y. 698; Roewekamp v. New York Post-Graduate Medical School & Hosp., 256 App. Div. 957, 283 N. Y. 585; Hendrickson v. Hodkin, 276 N. Y. 252; Volk v. City of New York, 284 N. Y. 279; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Layer v. City of Buffalo, 274 N. Y. 135; Kraus v. Birnbaum, 200 N. Y. 130; Osipoff v. City of New York, 286 N. Y. 422.)

      Olin S. Nye and Matthew E. Lawless for respondent.
    1. There is no evidence of negligence. (Schloendorff v. Society of New York Hosp., 211 N. Y. 125; Bakal v. University Heights Sanitarium, 277 App. Div. 572, 302 N. Y. 870; Roewekamp v. New York Post-Graduate Medical School & Hosp., 256 App. Div. 957, 283 N. Y. 585.) H. The medical evidence is insufficient to support a verdict.
   Lewis, J.

The plaintiff, by this action, seeks recovery for personal injuries allegedly suffered by him while a patient in the defendant hospital, which injuries he claims resulted from the negligent administration of a single hypodermic medication by an undergraduate nurse.

The case is here on appeal by permission of the Appellate Division where a judgment of Trial Term was unanimously affirmed which dismissed the complaint at the close of plaintiff’s evidence.

From the record before us it appears that following plaintiff’s admission to the defendant hospital on July 31,1949 — at which time he complained of pains in his side and back — the diagnosis of his physical disorder, based upon various tests and analyses, was a dormant thromboangiitis obliterans (Buerger’s disease). Then followed a series of treatments in the course of which hypodermic injections of penicillin were administered by nurses dressed all in white.” As a result of those treatments there came a time when plaintiff’s pain had subsided to such an extent that his physician informed him he would be discharged from the hospital on the following day — August 17, 1949. On the morning of that day plaintiff was seated on a porch adjoining the ward where he had been assigned, when he was approached by a person whom he described as a nurse who wore “ black shoes and black stockings and I think it was a light — light blue kind of a striped uniform.” Her uniform differed from that worn by those who had attended him and, although he thought he had seen her before, she had not previously given bim medicinal treatments of any kind. After a brief conversation with her the plaintiff accompanied the nurse back to the ward where she administered a hypodermic injection in the lower part of the right buttock. Later, when plaintiff felt severe pain in the area of his hip, the nurse in charge of his ward administered a medication which brought relief. Thereafter, according to plaintiff’s testimony, he suffered intense pain and grievous permanent physical injuries caused by the single hypodermic injection administered to him on August 17, 1949, his claim being that the injection — which allegedly injured the right sciatic nerve — was wrongly placed, negligently done, and was administered by an incompetent undergraduate nurse whose inexperience in that type of medication was known to staff members of the defendant hospital.

Giving the plaintiff the benefit of every favorable inference reasonably to be drawn from the evidence (Faber v. City of New York, 213 N. Y. 411, 414; Hanlon v. Macfadden Publications, 302 N. Y. 502, 506) we find in the record a complete lack of certain items of proof essential to his recovery herein. In reaching that conclusion we have examined plaintiff’s pleadings and the record of evidence to ascertain whether proof was made of facts which underlie his claim, and upon the establishment of which he has the burden.

By his amended complaint the plaintiff alleges that the personal injuries for which he seeks recovery resulted from a hypodermic injection of medication — which a bill of particulars asserts was penicillin — administered to him on or about September 7, 1949. However, upon the trial the plaintiff was permitted to amend his complaint and bill of particulars to allege that the hypodermic injection in suit was given on August 17,1949. The amended complaint also alleges that the injection was administered to the plaintiff by “ M. D. Smith ”, a first-year student in defendant’s nursing school. We find in the record no proof whatever in support of that allegation. Although the hospital records show that, at the time plaintiff was a patient, M. D. Smith was an undergraduate nurse in the defendant’s school of nursing, the only record which mentions a person by that name in any relation to the plaintiff is a pharmacy receipt signed by M. D. Smith ” on September 3, 1949, for “ Codeine Phosphate Solution * * * Patient’s Name * * * Bryant ”.

Thus, although there is no suggestion that any hospital record was withheld from plaintiff for use upon the trial, there is no evidence of the fact pleaded by the plaintiff that on August 17, 1949, M. D. Smith, an undergraduate nurse, administered to him the hypodermic injection of which he complains. Nor did he, by his own testimony or by other proof, identify the person who administered that medication, except to describe her as having worn black shoes and black stockings and a light blue striped uniform which differed from that worn by other nurses who had attended him. That meager description by the plaintiff of the nurse who was in attendance upon him did not, without more, prove that the nurse who administered the hypodermic injection on August 17, 1949, was an undergraduate nurse with only a brief period of training; nor did it prove that she lacked experience in the administration of medications hypodermically, or that her proficiency in that form of medical treatment had not been the subject of careful investigation and selection by the defendant’s staff officers. Nor was there proof as to how much training is necessary to administer medications hypodermically. Upon that phase of the case there was evidence, intro- . duced as part of plaintiff’s case, that undergraduate nurses in attendance at the three-year training course conducted at the defendant hospital were permitted to give hypodermic injections during their first year of training. There was no testimony, however, that such a procedure was not in accord with practice approved by informed medical authorities, or was not in accord with similar practice prevailing in other teaching hospitals.

It is manifest that medication given to a patient by hypodermic injection is a medical act, not administrative routine. In this jurisdiction the liability of a hospital for negligence in the performance of such an act is predicated upon a lack of care by the hospital in selecting and furnishing the doctor or nurse by whom the act is performed. The care in such selection cannot be less than “ * * * appropriate investigation of the character and capacity of the agencies of service from the highest to the lowest.” (Hamburger v. Cornell Univ., 240 N. Y. 328, 338, 339.) To paraphrase — for purposes of this case — language written for this court in the case last cited above (p. 339), “ The plaintiff does not advance [his] case materially by fastening upon the defendant a duty of diligent selection. The burden is still [his] to prove that the duty was disregarded.” The decisive factors in the record at hand are its lack of proof by the plaintiff not only of the identity of the nurse who on August 17, 1949, administered the hypodermic injection of which plaintiff complains but also the consequent lack of proof that care by the defendant hospital was disregarded in the selection of whoever was the administering nurse. (See Schloendorff v. Society of New York Hosp., 211 N. Y. 125, 129, 132; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188, 189, 191; Sutherland v. New York Polyclinic Medical School & Hosp., 273 App. Div. 29, 30-32, affd. 298 N. Y. 682; Bakal v. University Heights Sanitarium, 277 App. Div. 572, 575-576, affd. 302 N. Y. 870.)

The decision in Howe v. Medical Arts Center Hosp. (261 App. Div. 1088, affd. 287 N. Y. 698) does not reinforce the position of the plaintiff in the case at bar. Bather does it, in our view, serve to point up a vital lack in the record now before us. In the Howe case (supra) substantial evidence came into the record as part of plaintiff’s proof — and became the chief issue at the trial and the point chiefly argued on appeal — that when the woman whose alleged negligence caused plaintiff’s injuries joined the nursing staff of the defendant hospital, appropriate investigation was not made and care was not exercised by responsible staff officers of the hospital to ascertain her qualifications for professional nursing. Evidence of that character — which became a decisive factor in the Howe case — is, as we have seen, completely lacking in the record we now review.

The judgment should be affirmed, without costs.

Fboessel, J.

(dissenting). In this negligence action, plaintiff’s complaint was dismissed at the close of his case. He adduced evidence that he became a patient in defendant’s hospital on July 31,1949. After more than two weeks of treatment by physicians and nurses “ dressed all in white ”, and on August 16th, he was told by one of the attending physicians that he could “ go home tomorrow.” His brother thereupon paid the hospital bill and sent him his clothes.

The following day, on August 17th, while dressed and waiting on the hospital porch for his discharge, he was approached by a person described by him as a nurse who was wearing a 1 ‘ light blue kind of a striped uniform ”, black shoes and black stockings — not the white uniform worn by other nurses who had previously treated him. She directed him to return to his bed, where she gave him an injection in the lower part of the buttock. Hospital records indicate that such injection was given for the purpose of introducing penicillin, but the nurse’s notes failed to show any such injection on that day.

There was also evidence that this defendant permitted student nurses to give injections to patients. Competent medical testimony was produced to show that the injection in question was negligently performed, in that the needle was inserted into an improper part of plaintiff’s anatomy, causing damage to the sciatic nerve. A notation upon the continuation sheet at defendant ’s clinic indicates a conclusion by three examining physicians that plaintiff was suffering from “ underlying thromboangiitis obliterans of both legs ” and that the injection he received at Presbyterian may have done something to accelerate or precipitate the process in the right leg ”. Plaintiff’s left leg was subsequently amputated at another hospital in August of the following year.

From the foregoing evidence, the jury could have found that the injection was not administered by a regularly registered or trained nurse, but by a student in defendant’s nursing school. It is now the holding of the majority of this court that such a finding is insufficient in law to establish a prima facie cause of action as against defendant hospital. With this holding I am constrained to disagree.

The traditional immunity of the hospital from liability for the acts of physicians and nurses, in their capacity as such, is based upon the view that the hospital’s duty to the patient is limited to the furnishing of competent personnel to perform medical duties. It is only for negligence in the selection of such personnel that the hospital may be held liable (Bakal v. University Heights Sanitarium, 277 App. Div. 572, affd. 302 N. Y. 870; Hamburger v. Cornell Univ., 240 N. Y. 328; Schloendorff v. Society of New York Hosp., 211 N. Y. 125).

Trained nurses, like licensed physicians, are regarded as especially equipped to render professional services to patients when called on to do so ” (Matter of Renouf v. New York Central R. R. Co., 254 N. Y. 349, 351). If, then, the injection had been administered by a regularly qualified nurse it would have been incumbent upon plaintiff to show that there was reason to doubt her competency when she was employed. To apply that same principle to one concededly not yet qualified by experience or training for the nurse’s cap, and may never be, however, seems to me to be an unwarranted extension of the immunity rule, which has not escaped criticism in recent years.

When a hospital chooses to furnish other than duly qualified nurses for the performance of strictly medical duties, it should, in fairness, be required at least to accept the burden of justifying such selection when harm results. It may be that here defendant could show that the student who actually administered the injection (a note of which was made in its hospital records but not in its nurse’s notes, as above noted), had been properly instructed in anatomy and related subjects in defendant’s nursing school, and that she had demonstrated adequate knowledge and sufficient ability as a nurse to be entrusted with such tasks. In the absence of at least such a showing by defendant the complaint should not have been dismissed, for the mere fact that she was an undergraduate is insufficient to presume her competence (see Howe v. Medical Arts Center Hosp., 261 App. Div. 1088, affd. 287 N. Y. 698). In that case a student nurse negligently burned a patient with hot water bags; although she was an undergraduate, she was actually graduated from a nonaccredited nursing school and had also had several years’ experience at recognized hospitals. From the fact that the nurse was an undergraduate,” among other things, the Appellate Division pointed out, “ the jury was entitled to conclude that the defendant had failed in its duty ” to provide competent nurses.

The conclusion here reached is not repugnant to our holding in Phillips v. Buffalo Gen. Hosp. (239 N. Y. 188), where it was said that it is the character of the act (i.e., application of hot water bottles), rather than the title of the actor, that determines the extent of the hospital’s duty. Insofar as that case retains its authority (cf. Howe v. Medical Arts Center Hosp., supra), it is distinguishable from the case at bar in that we were there concerned with a type of ministration which might reasonably be performed either by a nurse or by an orderly. As to such functions, we explicitly noted that The line of demarcation is not clearly drawn ” (p. 190). It takes no extensive professional training to equip one properly to apply a hot water bottle. But, where the act is strictly medical, as the giving of medication by the insertion of a needle into the human body, no casual, perfunctory or limited training can be considered adequate. Prima facie, only the regularly qualified nurse possesses the professional capacity, judgment and experience to perform such duties, and the mere authorization by defendant to its student nurses, however brief their training, to do so does not constitute proof that such authorization was proper.

For the foregoing reasons, the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

Loughran, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur with Lewis, J.; Froessel, J., dissents in opinion.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Elfrida I. Westerberg, Appellant, v. Tide Water Associated Oil Company, Respondent.
    Argued November 20, 1952;
    decided January 15, 1953.

      Priscilla J. Vogelsang and Edward Eager for appellant.
    I. Special Term was in error in dismissing the complaint and the judgment of the Appellate Division sustaining Special Term is likewise erroneous. (Bennett v. Bennett, 116 N. Y. 584; Oppenheim v. Kridel, 236 N. Y. 156; Psota v. Long Island R. R. Co., 246 N. Y. 388.) II. Lack of precedent should not deprive a wife of the right to maintain an action for loss of consortium, for under the growth of the common law, a wrong can always be remedied. (Woods v. Lancet, 303 N. Y. 349.) I'll. The contention of respondent in the lower appellate court and in opposition to the application for a review by the Court of Appeals that the wife has no cause of action under the Jones Act and the general maritime law is erroneous.

      Arthur M. Boal for respondent.
    I. Whatever rights plaintiff has must be given to her by the maritime law. (Robins Dry Dock & Repair Co. v. Dahl, 1925 A. M. C. 182, 266 U. S. 449; Lindgren v. United States, 281 U. S. 38.) II. The common law does not give a wife a cause of action against a defendant for injuries the defendant inflicted upon the husband by negligence. (Maloy v. Foster, 169 Misc. 964; Goldman v. Cohen, 30 Misc. 336; Oppenheim v. Kridel, 236 N. Y. 156; Adkins v. Children’s Hosp., 261 U. S. 525; Passalacqua v. Draper, 279 App. Div. 660; Hitaffer v. Argonne Co., 183 F. 2d 811.)
   Per Curiam.

The breach of duty by the defendant, which allegedly caused injuries to plaintiff’s husband — injuries giving rise to her present action — occurred while the defendant’s vessel was at sea and while he, as a seaman, was employed at service on that vessel. That alleged breach of duty by the defendant was a maritime tort. As' such it cannot serve as a basis for plaintiff’s complaint which demands relief of a character not within the purview of the 1920 amendment of the Merchant Marine Act (“Jones Act”) (41 U. S. Stat. 1007; U. S. Code, tit. 46, § 688). Upon that subject the United States Supreme Court has had occasion to state — *1 This Court has specifically held that the Jones Act is to have a uniform application throughout the country, unaffected by local views of common law rules.’ ” (Garrett v. Moore-McCormack Co., 317 U. S. 239, 244.) We pass upon no other question.

The judgment should be affirmed, without costs.

Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ., concur.

Judgment affirmed.


text:
    In the Matter of Walter Almgren, Appellant, against Clifford J. Fletcher, as Commissioner of Motor Vehicles of the State of New York, Respondent.
    Submitted November 24, 1952;
    decided January 15, 1953.

      Benjamin Goldring and Herman Pike for appellant.
    I. The determination below is erroneous. (Matter of Hart v. Mealey,
      287 N. Y. 39; Hall v. Dilworth, 94 Misc. 240; Barker v. Savage, 45 N. Y. 191; Lee v. City Brewing Corp., 279 N. Y. 380; Ward v. Clark, 232 N. Y. 195.) II. The determination below takes the substance out of the “ substantial evidence ” test, and deprives the statutory standard of “ gross negligence ” of objective meaning. (People v. Angelo, 246 N. Y. 451; Matter of Jenson v. Fletcher, 277 App. Div. 454, 303 N. Y. 639; People v. Grogan, 260 N. Y. 138; People v. Gardner, 255 App. Div. 683; People v. Bearden, 290 N. Y. 478.)

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman, Wendell P. Brown and Irving L. Rollins of counsel), for respondent.
    The record discloses evidence of gross negligence which is substantial in character and sufficient in law to justify the commissioner’s determination. (Matter of Stork Restaurant v. Boland, 282 N. Y. 256; Weigand v. United Traction Co., 221 N. Y. 39; Tosto v. Marra Bros., 275 App. Div. 686, 299 N. Y. 700; Von Der Geest v. Millinger, 276 App. Div. 1093; La Grande v. Abbott, 266 App. Div. 507; Lee v. City Brewing Corp., 279 N. Y. 380; People v. Rosenheimer, 209 N. Y. 115; Ward v. Clark, 232 N. Y. 195; Plantz v. Greiner, 232 App. Div. 73; Shirley v. Larkin Co., 239 N. Y. 94; People v. Bearden, 290 N. Y. 478.)
   Per Curiam.

Giving the evidence in this record the consideration to which it is fairly entitled, we deem it insufficient, as a matter of law, to support the finding that petitioner was guilty of ‘ ‘ gross negligence ’ ’ in the operation of his motor vehicle, or that he operated it “ in a manner showing a reckless disregard for life or property of others ’ ’ within the meaning of paragraph (e) of subdivision 3 of section 71 of the Vehicle and Traffic Law. (Matter of Hart v. Mealey, 287 N. Y. 39; Matter of Jenson v. Fletcher, 277 App. Div. 454, affd. 303 N. Y. 639; People v. Angelo, 246 N. Y. 451.)

The order of the Appellate Division should be reversed, and the determination of the Commissioner of Motor Vehicles annulled, without costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order reversed, etc.


text:
    In the Matter of Copal Mintz, Individually and on Behalf of All Other Tenants Who Desire to Join Herein of Premises 280 Riverside Drive, Borough of Manhattan, Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued. April 9, 1952;
    decided May 22, 1952.

      Copal Mints, appellant in person.

      Beatrice Shainswit and Robert H. Schaffer for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fiild and Feoessel, JJ.


text:
    Miriam Joseph, as Administratrix of the Estate of Percy A. Joseph, Deceased, Appellant, v. Samuel Lutzky et al., Respondents, et al., Defendants.
    Argued April 8, 1952;
    decided May 22, 1952.

      Eugene L. Bondy for appellant.

      Arthur Karger, Alexander Biclcs and Irving Abraham for respondents.
   Judgment affirmed, with costs; no opinion.

Concur’: Loughban, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    The People of the State of New York, Respondent, v. Charles A. Weil, Appellant.
    Argued April 14, 1952;
    decided May 22, 1952.

      Charles A. Weil, appellant in person.

      Frank S. Hogan, District Attorney (Paul A. Stone and Bichard G. Denser of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Lewis Wolfe, Appellant.
    Argued April 14, 1952;
    decided May 22, 1952.

      Lewis Wolfe, in person, Harry G. Anderson, Franklin Miller and Rudolph Stand for Lewis Wolfe, appellant.

      Miles F. McDonald, District Attorney (William E. Siegel of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ. Taking no part: Fuld, J.


text:
    Louis F. Rothschild et al., Copartners Doing Business under the Name of L. F. Rothschild & Co., Respondents, v. Ida Clawans et al., Appellants.
    Argued April 7, 1952;
    decided May 22, 1952.

      Herbert Goldmark and Joseph K. Guerin for appellants.

      Sam L. Cohen and Felix A. Fishman for respondents.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Joseph Louis Paonessa, Appellant.
    Submitted May 19, 1952;
    decided May 27, 1952.
   Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned, it will be amended to read as follows: Upon this appeal there were presented by this record and necessarily passed upon questions under the Fourteenth Amendment of the Constitution of the United States. The Court of Appeals held that none of the rights of the defendant under the Fourteenth Amendment of the Constitution of the United States had been violated. [See 303 N. Y. 964.3


text:
    The People of the State of New York, Respondent, v. Robert L. Flower and George W. Schlicter, Appellants, et al., Defendants.
    Argued April 18, 1952;
    decided May 29, 1952.

      Michael Ruggiero for Robert L. Flower, appellant.

      Jules B. St. Germain and Harry Silver for George W. Schlicter, appellant.

      Frank A. Gulotta, District Attorney (Philip Huntington of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Sadie Cohen, Appellant, v. B. J. Denihan, Inc., Respondent.
    Argued April 15, 1952;
    decided May 29, 1952.

      Simon Greenhill for appellant.

      Abraham Greenberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Maceo Pinkard et al., Appellants, v. Robbins Music Corporation, Respondent.
    Argued April 21, 1952;
    decided May 29, 1952.

      Theodore R. Kupferman and Bernard A. Grossman for appellants.

      Julian T. Abeles and Arnold J. Bernstein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    New York Central Railroad Company, Respondent, v. County of Erie, Appellant, and Town of Cheektowaga, Respondent.
    Argued April 22, 1952;
    decided May 29, 1952.

      Elmer B. Weil, County Attorney (Worthy B. Paul of counsel), for appellant.

      Mark N. Turner for New York Central Railroad Company, respondent.

      George B. Doyle for Town of Cheektowaga, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Lucile M. Ferguson, Respondent, v. Joseph B. Ferguson, Appellant.
    Argued April 15, 1952;
    decided May 29, 1952.

      Jacob W. Friedman and Herman W. Bernstein for appellant.

      Alexander U. ZinJce and Charles W. Silver for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Mutual Life Insurance Company of New York, Appellant and Respondent, v. Max S. Weil et al., Individually and as Executors and Trustees under the Will of Samuel Weil, Deceased, et al., Respondents and Appellants.
    Argued April 17, 1952;
    decided May 29, 1952.

      Vincent Keane and Haughton Bell for appellant and respondent.

      Morris J. Brisker for respondents and appellants.
   Upon plaintiff’s appeal: Judgment affirmed, without costs. Upon defendants’ appeal: Appeal dismissed, without costs, upon the ground that they are not parties aggrieved. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Claim of John W. Conway, Respondent, against Aluminum & Brass Company et al., Respondents, and Special Disability Fund, Appellant. Workmen’s Compensation Board, Respondent.
    Argued April 21, 1952;
    decided May 29, 1952.

      John M. Cullen for appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel PolansTcy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Leo Overland, Appellant, against Le Roy Foods, Inc., et al., Respondents.
    Argued April 22, 1952;
    decided May 29, 1952.

      Max Bothenberg for appellant.

      David Gale and Alfred Sobol for respondents.
   Order affirmed, with costs. A director has an absolute right to inspect the corporate books (People ex rel. Wilkins v. Ascher Silk Corp., 237 N. Y. 574, 630), but such right terminates when, as here, an applicant for such an order is removed as director while his application is pending before the Special Term (Matter of Hafter v. Eagle Fish Co., 296 N. Y. 808). No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fund and Fboessel, JJ.


text:
    Cable and Wireless, Limited, Appellant and Respondent, v. William A. Lyon, Superintendent of Banks of the State of New York, as Liquidator of the Business and Property in New York of Yokohama Specie Bank, Ltd., Respondent and Appellant.
    Argued April 17, 1952;
    decided May 29, 1952.

      William J. O’Shea, John Godfrey Saxe, Frederick vP. Bryan and Richard R. Schilling, Jr., for appellant and respondent.

      Daniel Gersen and Edward Feldman for respondent and appellant.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Arbitration between Cauldwell-Wingate Company, Appellant, and Wander Iron Works Co., Respondent.
    Argued April 21, 1952;
    decided May 29, 1952.

      Monroe J. Cahn and Herbert 8. Greenberg for appellant.

      Emanuel Harris and Max E. Greenberg for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Arbitration between Western Electric Company, Incorporated, Respondent, and Communications Workers of America, Appellant.
    Argued April 16, 1952;
    decided May 29, 1952.

      Henry Mayer and Abraham, Weiner for appellant.

      William J. Butter, Robert A. Levitt and Allen 8. Wilder for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Dye and Fboessel, JJ. Dissenting: Fuld, J.


text:
    Edward Rosner, Appellant and Respondent, v. U. S. Waterways Corporation, Respondent and Appellant; Emanuel Kulukundis et al., Respondents, et al., Defendants.
    Argued April 8, 1952;
    decided May 29, 1952.

      Charles H. Tuttle, Stoddard B. Colby and Edward J. Ross for appellant and respondent.

      William M. Chadbourne, Gerald B. O’Neill, Harry E. Hasselmann and Richard W. Dearborn for respondent and appellant, and respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of the Arbitration between Sperry Gyroscope Company, Division of the Sperry Corporation, Respondent, and Engineers’ Association et al., Appellants.
    Argued April 16, 1952;
    decided May 29, 1952.

      Henry Mayer and Abraham Weiner for appellants.

      Moses Shapiro for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughkan, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Josephine C. McGoey, as Administratrix of the Estate of Peter J. McGoey, Deceased, Appellant, v. City of New York, Respondent.
    Argued April 17, 1952;
    decided May 29, 1952.

      Paxton Blair, Frederick Travers and Harry H. Lipsig for appellant.

      Denis M. Hurley, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Emil T. Rinas et al., Constituting the Board of Water Commissioners of Roslyn Water District of the Town of North Hempstead, Nassau County, Appellants, against Perry P. Duryea et al., Constituting the Water Power and Control Commission of the State of New York, et al., Respondents.
    Argued April 21, 1952;
    decided May 29, 1952.

      Harry W. Moore and Harold 8. Meltser for appellants.

      Nathaniel L. Goldstein, Attorney-General (Edward L. Ryan and Wendell P. Brown of counsel), for Water Power and Control Commission of the State of New York, respondent.

      J. Oákey McKnight for Incorporated Villages of East Hills and Old Westbury, respondents.

      Albert A. Oppido for Westgate Building Corp. and others, respondents.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Frances M. Watts, as Administratrix of the Estate of Stanley Watts, Deceased, Appellant, v. Mitchell Bros. Realty Corporation, Respondent.
    Argued April 23, 1952;
    decided May 29, 1952.

      Henry Hirschberg and John T. Masseo for appellant.

      Daniel Becker, John J. O’Connor and Paul F. Murphy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    John B. Murphy et al., Respondents, v. Everett W. De Revere, Jr., Respondent; Salvatore Tarantelli et al., Defendants, and The President and Trustees of the Village of Ossining, Appellants.
    Submitted April 21, 1952;
    decided May 29, 1952.

      William F. McNulty and Ubaldo N. Marmo for motion.

      Morton Sokol, Thomas J. O’Neill and Daniel Dansiger opposed.
   Motion denied, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right.


text:
    Marion L. Van Valkenburgh, Plaintiff, and Joseph D. Van Valkenburgh, Appellant, v. Mary Lutz, Individually and as Executrix of William Lutz, Deceased, Respondent.
    Submitted May 19, 1952;
    decided May 29, 1952.
   Motion for reargument denied. Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to read as follows: Judgments reversed, counterclaim dismissed and judgment directed to be entered in favor of plaintiff, Joseph D. Van Valkenburgh, for the relief prayed for in the complaint subject to the existing easement. (Lutz v. Van Valkenburgh, 274 App. Div. 813), with costs in all courts. [See 304 N. Y. 95.]


text:
    Cornelius W. Every, Doing Business as Every’s Express, Appellant, v. Alonzo Haver, Inc., Respondent, et al., Defendants.
    Submitted May 19, 1952;
    decided May 29, 1952.

      Theodore P. Ferny for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant, within ten days, serves and files an undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    Mary-Alice Rodgers, Appellant and Respondent, v. William H. Rodgers, Respondent and Appellant.
    Submitted May 19, 1952;
    decided May 29, 1952.

      Roger Hinds for motion and in opposition to cross motion.

      Maurice R. Whitebooh for cross motion and in opposition to motion.
   Motion by defendant granted, and plaintiff’s appeal in its entirety dismissed upon the ground that a stipulation for judgment absolute cannot be given in this action for a separation since a counterclaim for annulment remains untried. (Weiman v. Weiman, 295 N. Y. 150.)

Cross motion by plaintiff granted and defendant’s appeal dismissed upon the ground that the order appealed from does not finally determine the action within the meaning of the Constitution. [See 304 N. Y. 716.]


text:
    In the Matter of the Probate of the Will of Rose Moskowitz, Deceased. Julius S. Moskowitz, Respondent; Annette Rich, Appellant.
    Submitted May 19, 1952;
    decided May 29, 1952.
   Motion to amend remittitur denied, with $10 costs. [See 303 N. Y. 992.]


text:
    Roman Silversmiths, Inc., Appellant, v. Hampshire Silver Co., Inc., et al., Defendants, and Irwin Fenton, Intervener, Respondent.
    Submitted May 19, 1952;
    decided May 29, 1952.

      Stanley M. Estrow for motion.
    No one opposed.
   Motion dismissed upon the ground that the orders do not finally determine the action within the meaning of the Constitution.


text:
    Frank E. Nash, Doing Business under the Name of Frank E. Nash Fence Company, Appellant, v. Frank Mennan, as President of Local 580 of the International Association of Bridge, Structural and Ornamental Iron Workers, et al., Respondents.
    Submitted May 19, 1952;
    decided May 29, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 956.]


text:
    Town of Pelham, Respondent, v. City of Mount Vernon, Appellant.
    Submitted May 19, 1952;
    decided May 29, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 304 N. Y. 15.]


text:
    In the Matter of Ottavio Natalicchio, Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent, and Salvatore Losi, Intervener, Respondent.
    Submitted May 19, 1952;
    decided May 29, 1952.

      Robert R. Kaufman for motion.

      Irving A. Oremland opposed.
   Motion to dispense with printing the appellant’s brief and for leave to prosecute the appeal on seven legible typewritten copies of that brief granted. Motion for leave to prosecute the appeal on the original record denied, since the appeal may be so prosecuted as of right under subdivision 2 of section 9 of the State Residential Rent Law (L. 1946, ch. 274, as amd.).


text:
    In the Matter of the Arbitration between Lesavoy Industries, Inc., Appellant, and Brighton Mills, Inc., Respondent.
    Argued May 21, 1952;
    decided June 3, 1952.

      Samuel Rubin and Seymour' J. Ugelow for appellant.

      Melvin Liebowits, Reuben Golin and Arthur A. Litt for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Arbitration between Lastmor Products Mfg. Corp. et al., Appellants, and Zendel Storozum, Respondent.
    Argued May 19, 1952;
    decided June 5, 1952.

      Herbert M. Marltham and Emanuel Greenberg for appellants.

      Sidney Hoffman for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conwat, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Accounting of Chase National Bank of the City of New York, as Surviving Trustee under a Trust Agreement Made by Joseph N. Ford, and as Administrator of the Estate of Joseph N. Ford, Deceased Trustee, Respondent. Annie W. Harshbarger et al., Appellants; Marie G. Ford, Respondent.
    Argued May 20, 1952;
    decided June 5, 1952.

      Mark F. Hughes, Harold J. Gallagher, Richard Owen and William T. Collins, II, for appellants.

      David R. Grow, Frederick C. Tanner and Charles F. Hopkins for respondents.
   Order affirmed, with costs to the respondents; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Harold S. Miller, Appellant, v. Burlington Mills Ribbon Corp., Respondent.
    Argued May 20, 1952;
    decided June 5, 1952.

      Leo H. Hirsch, Jr., and Samuel B. Feller for appellant.

      Leo J. Friedman and Arthur J. Brothers for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Appointment of a Committee of the Person and Property of John A. McCarthy, an Alleged Incompetent Person. Eugene J. McCarthy et al., Appellants; Anna V. McCarthy, Respondent.
    Argued May 21, 1952;
    decided June 5, 1952.

      Bruce Bromley, Maurice Rosenberg, George Trosh in person, Joseph G. Abramson in person and Emanuel L. Greene in person for Eugene J. McCarthy and others, appellants.

      Vincent J. Malone for Martin J. Kelly, Jr., and another, appellants.

      Arthur G. Klein, special guardian, appellant in person.

      John P. McGrath, Felix A. Muldoon and Charles 8. Eorgan, Jr., for respondent.

      Joseph V. McKee for Catholic Charities of the Archdiocese of New York, amicus curiae, in support of respondent’s position.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate. The determination of the make-up of a committee of an incompetent, and of allowances to attorneys and others in such a proceeding, rests in the sound discretion of the Supreme Court, and, in the exercise of that discretion, the Appellate Division stands in the same position as the Special Term. Therefore, the Appellate Division’s order of modification — “on the law and on the facts and in the exercise of the court’s discretion” — presents no question for review by this court. No opinion.

Concur: Lotjghean, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Feoessel, JJ.


text:
    Davis Dresser, Appellant, v. William Morrow and Company, Inc., et al., Respondents.
    Argued May 20, 1952;
    decided June 5, 1952.

      Eleasar Lipsky and Oswald Vischi for appellant.

      Frederick M. Schlater for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Accounting of Percy J. Smith et al., as Executors of William E. Abele, Deceased, Appellants and Respondents. Commissioner of Welfare of the City of New York, Respondent and Appellant; Lafayette National Bank of Brooklyn in New York, as Substituted Trustee under the Will of William E. Abele, Deceased, Appellant and Respondent; William C. McCreery, as Special Guardian for Esther Abele and Others, Infants, Respondent.
    Argued April 16, 1952;
    decided June 5, 1952.

      John McElraevy, Jr., in person, William G. McCreery, special guardian in person, and Donald F. Ayers for executors, appelants and respondents.

      Pallister Hamilton Feely and Walter Jeffreys Garlin for Lafayette National Bank of Brooklyn in New York, substituted trustee, appellant and respondent.

      Denis M. Hurley, Corporation Counsel (Seymour B. Quel and Alfred Weinstein of counsel), for respondent and appellant.
   Order of Appellate Division reversed and decree of Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to all parties appearing separately and filing separate briefs payable out of the estate, on the ground that the findings of the Surrogate’s Court are in accord with the weight of the evidence. We pass upon no other question. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Edna von R. Blair, Appellant, v. C. Chester Du Mond, as Commissioner of Agriculture and Markets, et al., Respondents.
    Argued May 19, 1952;
    decided June 5, 1952.

      Sherman S. Rogers and Paxton Blair for appellant.

      Nathaniel L. Goldstein, Attorney-General (Ruth Kessler Toch and Wendell P. Brown of counsel), for Commissioner of Agriculture and Markets of the State of New York, respondent.

      Thomas P. Kennedy for Chairman of Board of Supervisors, Columbia County, respondent.
   Appeal dismissed, with costs, upon the ground that there are questions involved other than the validity of a statutory provision under the State or Federal Constitutions (Civ. Prac. Act, § 588, subd. 4). No opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Application of Lucy Spitzmuller, Appellant. Bankers Trust Company, as Trustee of Trusts Created by Morton Otis, Respondent.
    Argued May 20, 1952;
    decided June 5, 1952.

      Leslie H. Arps and Joseph H. Flom for appellant.

      Orison S. Marden, Haliburton Fales, II, and John M. Johnston for respondent.

      Peter Keber for New York State Bankers Association, amicus curiae, in support of respondent’s position.
   Order affirmed, with costs payable out of any balance of the fund remaining in the hands of the trustee. No opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Eleanor Post, Individually and as Receiver of the Personal Property and Rents and Profits of the Real Property of Edward L. Post, Appellant, v. Gurdon Browne et al., Respondents, et al., Defendants.
    Argued May 22, 1952;
    decided June 5, 1952.

      James E. Birdsall and Arthur G. Warner for appellant.

      Howard A. Thomsen for respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Accounting of Bank of New York and Fifth Avenue Bank, as Trustee under an Agreement of Trust Made by Alfred H. Smith, Deceased. Chase National Bank of the City of New York, as Executor and Trustee under the Will of Ann H. Smith, Deceased, et al., Respondents; Ann C. E. S. Waterous, Appellant.
    Argued April 17, 1952;
    decided June 5, 1952.

      Joseph V. Lane, Jr., Joseph Richter and Daniel 8. Levy for appellant.

      John M. Frey for Chase National Bank of the City of New York, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the fund; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Robert A. Wilkinson, Appellant, v. Nassau Shores, Inc., et al., Respondents, and John P. McKenna, Appellant.
    Argued May 19, 1952;
    decided June 5, 1952.

      Ralph M. Carson, William R. Meagher and Edgar 0. Appleby for appellants.

      A. Rertram Roth for Nassau Shores, Inc., and others, respondents.

      Paul J. Leach for Nassau Shores Country Club of Massapequa, Inc., and others, respondents.
   Judgments modified by reversing so much thereof as provide for easements in favor of the respondent corporations, Nassau Shores, Inc., Richboro Realty Corporation and Harmon National Real Estate Corporation, and, as to such respondents, plaintiff is entitled to judgment, without costs.

Any easement rights claimed by equitable owners of lots to which said respondent corporations held legal title may be asserted by said equitable owners in an independent action in which they are parties, as they may be advised.

In all other respects the judgments are affirmed, without costs. No opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Feoessel, JJ. Not sitting: Conway, J.


text:
    Ramona E. Aguilar, as Guardian ad Litem of Carmen Lopez, an Infant, et al., Appellants, v. State of New York, Respondent.
    (Claim No. 30020.)
    Submitted June 5, 1952;
    decided June 5, 1952.

      Murray Freeman for motion.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for State of New York.
   Motion granted and appeal withdrawn.


text:
    In the Matter of the Arbitration between David Minkin et al., Respondents, and John Halperin, Appellant.
    Argued May 22, 1952;
    decided June 6, 1952.

      Arthur G. Warner and James E. Birdsall for appellant.

      John P. McGrath for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Dye and Fboessel, JJ. Desmond and Fuld, JJ., dissent and vote to reverse the order appealed from and to dismiss the petition, with costs, on the ground that sufficient appears in the papers to show an issue of fact, triable by the arbitrators, as to the existence of a valid release. Not sitting: Conway, J.


text:
    In the Matter of the Arbitration between Prima Products, Inc., Respondent, and Aquella Products, Inc., Appellant.
    Submitted May 26, 1952;
    decided June 6, 1952.

      Ira A. Campbell and Rufus Barringer for appellant.

      Jack Hart and Joseph A. Bergadano for respondent.
   Orders reversed, without costs, and proceeding remitted to Special Term with directions to dismiss the motion solely upon the ground that the issues have become moot. No opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of Gershon Wisotsky, Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued May 27, 1952;
    decided June 6, 1952.

      Charles S. Lubin for appellant.

      Beatrice Shainswit and Robert H. Schaffer for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughkan, Ch. J., Lewis, Desmond, Dye, Fuld and Fboessel, JJ. Not sitting: Conway, J.


text:
    The People of the State of New York, Appellant, v. Sarah Webster, Respondent.
    Argued May 28, 1952;
    decided June 6, 1952.

      Miles F. McDonald, District Attorney (David Diamond of counsel), for appellant.

      Arnold D. Roseman and J. Jack Brown for respondent.
   Judgment and order affirmed. No opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld arid Froessel, JJ. Not sitting: Conway, J.


text:
    Industrial Bank of Commerce, Appellant, v. Packard Yonkers Corp., Respondent, et al., Defendants.
    Argued May 26, 1952;
    decided June 6, 1952.

      Aubin J. Eeffernan and John J. Dwyer for appellant.

      Max Klein for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Desmond; Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Claim of Vittoria Swanson, Respondent, against Williams & Co. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 27, 1952;
    decided June 6, 1952.

      Reid A. Curtis and Albert R. Eberlein for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Eva Friedman, as Executrix of Michael Friedman, Deceased, et al., Appellants, v. Ontario Holding Corp., Respondent.
    Argued May 28, 1952;
    decided June 6, 1952.

      Leon Malman for appellants.

      Reuben Tally and Charles II. Tally for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loxtghran, Oh. J., Lewis, Desmond, Dye, Fitld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Arbitration between Walter D. Binger et al., Respondents, and Charles J. Thatcher, Appellant.
    Argued May 26, 1952;
    decided June 6, 1952.

      Charles J. Thatcher, appellant in person.

      Carmelo J. Pernicone and Caesar Nohiletti for respondents.
   Order affirmed; no opinion.

Concur: Loughkan, Ch. J., Lewis, Desmond, Dye, Fuld and Fboessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Claim of William McEwan, Appellant, against City of New York, Respondent.
    Argued May 27, 1952;
    decided June 6, 1952.

      Adolph Koeppel and Martin Koeppel for appellant.

      Denis M. Hurley, Corporation Counsel (Fred Isool and Seymour B. Quel of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Desmond and Dye, JJ. Fuld and Froessel, JJ., dissent and vote to reverse the order of the Appellate Division and affirm the order of the Special Term, upon the ground that, under the circumstances of this issue, it was an abuse of discretion to refuse to permit the filing of the claim. Not sitting: Conway, J.


text:
    In the Matter of Herbert Farrell et al., Respondents, against James S. Watson et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued May 28, 1952;
    decided June 6, 1952.

      Denis M. Hurley, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for appellants.

      Leo Brown for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Desmond, Dye, Fuld and Feoessel, JJ. Not sitting: Conway, J. .


text:
    In the Matter of the Claim of Elizabeth Williams, Appellant, against Saratoga County Highway Department et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued May 26, 1952;
    decided June 6, 1952.

      Walter A. Fullerton and Francis J. Keehan for appellant.

      John W. Nichols, County Attorney, for Saratoga County Highway Department and another, respondents.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Claim of Irving E. Haab et al., Respondents, against Lionel R. Bauman et al., Doing Business under the Name of Bauman Bros., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued May 27, 1952;
    decided June 6, 1952.

      Maurice Heilman for Lionel R. Bauman and others, appellants. Bernard F. Farley for Continental Casualty Company, appellant.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and B,oy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Benjamin Gunther, Appellant, v. Douglas L. Elliman & Company, Inc., et al., Respondents.
    Argued May 28, 1952;
    decided June 6, 1952.

      George J. Rudnick for appellant.

      Alexander Pfeiffer and Clarence S. Barasch for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Desmond, Dye, Fuld and Fboessel, JJ. Not sitting: Conway, J.


text:
    William A. Slater et al., as Trustees under the Will of William A. Slater, Deceased, et al., Appellants, v. Gulf, Mobile and Ohio Railroad Company et al., Respondents.
    Argued April 21, 1952;
    decided June 6, 1952.

      Watson Washburn for appellants.

      Edward K. Hanlon, William R. Meagher, Louis S. Weelts, Jr., Theodore Kiendl and Samuel J. Murray for respondents.
   Judgment affirmed, with costs; no opinion.

Concur. Loitghran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Unity Sheet Metal Works, Inc., Appellant, v. Georgianna Knappen, as Executrix of Theodore T. Knappen, Deceased, et al., Respondents, et al., Defendants.
    Argued May 20, 1952;
    decided June 6, 1952.

      Nelson Rosenbaum for appellant.

      Sidney G. Kingsley for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Construction of the Will of Eugene Higgins, Deceased. United States Trust Company of New York, as Executor of and Trustee under the Will of Eugene Higgins, Deceased, et al., Appellants; Helene R. Chappelle et al., Respondents.
    Argued May 21, 1952;
    decided June 6, 1952.

      Richard 8. Baxter for United States Trust Company of New York, as executor of and trustee under the will of Eugene Higgins, deceased, appellant.

      Louis Gonnick for Harvard University and others, appellants.

      Ethan A. Hitchcock and Lee McCanliss for Helene R. Chappelle, respondent.

      Milton Schilback for Edmee Chappelle, respondent.

      David Du Vivier for United States Trust Company of New York, as trustee under indentures of trust of Eugene Higgins, respondent.
   Order affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the estate; no opinion.

Concur: Loughban, Ch. J., Lewis, Desmond, Dye, Fuld and Fboessel, JJ. Not sitting: Conway, J.


text:
    Ed G. Nelson et al., Appellants and Respondents, v. Mills Music, Inc., Respondent and Appellant, and “Jane” Pease, as Executrix of Harry Pease, Deceased, Impleaded Defendant, Appellant and Respondent.
    Submitted June 2, 1952;
    decided June 6, 1952.

      Abner Greenberg for motion to dismiss appeal and in opposition to motion for extension of time.

      Richard G. Llope and Theodore R. Kupferman for motion for extension of time and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal denied.

Motion for extension of time granted.


text:
    Lester Schmid, Appellant, v. Harry Werner et al., Defendants, and City of New York, Respondent.
    Submitted June 6, 1952;
    decided June 6, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 303 N. Y. 754.]


text:
    Marie T. Bata, Respondent, v. Bata, a. s., Appellant. Svit National Corporation, Intervener.
    Submitted June 2, 1952;
    decided June 6, 1952.

      Martin Popper and Benjamin Spiegel for motion.

      Inzer B. Wyatt and Robert MacCrate opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the matter within the meaning of the Constitution.


text:
    Robert T. Reiss, Appellant, v. Arabian American Oil Co., Respondent.
    Submitted May 19, 1952;
    decided June 6, 1952.

      Albert Weiss for motion.

      Louis F. Huttenlocher opposed.
   Motion denied without prejudice to a renewal thereof, upon papers showing compliance with rule 35 of the Rules of Civil Practice.


text:
    The People of the State of New York ex rel. Joseph D. McGoldrick, as State Rent Administrator, Respondent, against Christopher West et al., Appellants.
    Submitted May 19, 1952;
    decided June 6, 1952.

      Sidney Roffman for motion.

      Robert H. Schaffer and Henry S. Halprin opposed.
   Motion granted and, upon reargument, motion for leave to appeal granted. [See 303 N. Y. 1003.]


text:
    Montgomery Ward & Co., Incorporated, Respondent, v. The People of the State of New York, Appellant.
    Argued May 22, 1952;
    decided July 15, 1952.

      Nathaniel L. Goldstein, Attorney-General .(Abraham W. Feinberg, Wendell P. Brown and Thomas Burke of counsel), for appellant.

      Frank A. McNamee, Jr., for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway and Dye, JJ. Desmond, Fuld and Froessel, JJ., dissent and vote to reverse the order below and to dismiss the complaint, with costs, upon the ground that this suit, by a landlord against its holdover tenant, is not one “ brought to compel the determination of an adverse claim ” within the meaning of article 15 of the Real Property Law.


text:
    In the Matter of the Arbitration between Michael Stone, Appellant, and Herbert J. Freezer, Respondent.
    Argued May 26, 1952;
    decided July 15, 1952.

      Robert H. Haines and Frederick F. Greenman for appellant.

      Jack N. Albert and Michael Halperin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. ' Fuld and Froessel, JJ.


text:
    Oscar J. Brown, Respondent, v. New York State Tax Commission, Appellant.
    Argued June 2, 1952;
    decided July 15, 1952.

      Nathaniel L. Goldstein, Attorney-General (John G. Grary, Jr., and Wendell P. Brown of counsel), for appellant.

      Oscar J. Brown, respondent in person.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Alden Hotel Corporation, Appellant, against William E. Bcyland et al., Constituting the Tax Commission of the City of New York, Respondents. [225 Central Park West, Borough of Manhattan.]
    Argued June 3, 1952;
    decided July 15, 1952.

      Alfred H. Hetkin for appellant.

      Denis M. Hurley, Corporation Counsel (James J. McGowan and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Freda K. Ralph, Respondent, against Board of Estimate of the City of New York et al., Appellants.
    Argued June 4, 1952;
    decided July 15, 1952.

      Denis M. Hurley, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellants.

      Stephen J. Rudd and Irving L. Bruns for respondent.
   Order of Appellate Division reversed upon the authority of the Civil Practice Act (§ 562-a, subd. [3]) and matter remitted to the Appellate Division for determination on the merits, with costs to abide the event. No opinion.

Concur: Lottghran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Arbitration between Lawrence Myers et al., Appellants, and Benjamin Leibel, Respondent, et al., Defendants.
    Submitted June 6, 1952;
    decided July 15, 1952.

      Theodore S. Jajfin and Herber Feiler for appellants.

      Samuel Rubin for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughrax, Ch. J., Lewis, Desmoxd and Dye, JJ. Fuld and Froessel, JJ., dissent upon the ground that appellants are entitled to arbitration unconditionally; whenever Leibel brought dissolution proceedings, appellants would be entitled to a stay under the provisions of section 1451 of the Civil Practice Act. Not sitting: Conway, J.


text:
    Service Fire Insurance Company of New York, Appellant, v. Leon P. Lederman, Respondent. Leland Hryniewicki, Appellant, v. Leon P. Lederman, Respondent.
    Argued May 26, 1952;
    decided July 15, 1952.

      William E. J. Connor and Henry H. Koblintz for appellants.

      R. Waldron Herzberg, Earl 8. Jones and R. Monell Herzberg for respondent.
   In each case: Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Joseph J. Giacobbe et al., Appellants, against Board of Education of the City of New York, Respondent.
    Argued May 27, 1952;
    decided July 15, 1952.

      A. Mark Levien for appellants.

      Denis M. Hurley, Corporation Counsel (Sidney P. Nadel, Seymour B. Quel and Edward J. McLaughlin of counsel), for respondent.
   Appeal dismissed, with costs, upon the ground that no substantial constitutional question is presented. No opinion.

Concur: Lottghran, Ch. J., Lewis, Desmond, Dye, Ftjld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of the Estate of Henry Brower, Deceased. State Tax Commission, Respondent; Thomas H. Brower et al., as Executors of Henry Brower, Deceased, Appellants.
    Submitted May 28, 1952;
    decided July 15, 1952.

      Frederic White Shepard, Edward Q. Carr, Hunter L. Delatour, Stanley C. Fowler, Jr., Ferdinand I. Haber, Louis C. Hart, Jr., Albert Hlavac, William B. Hoffman, Edward A. Hole, John J. Kuhn, Remsen B. Ostrander, Sylvanus D. Ward, James A. Warner and Allan B. Wright for appellants.

      Mortimer M. K ass ell and Miriam Wernick for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Edward H. Kelly, Appellant.
    Argued June 2, 1952;
    decided July 15, 1952.

      Whitman Knapp, Howard C. St. John and Jack B. Weinstein for appellant. '

      Louis G. Bruhn, District Attorney (James J. AbervMhy and Vincent G. Connelly of counsel), fqr-respondent""
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J:, Lewis, Desmond, Dye, Fuld and Fboessel, JJ. Not sitting: Conway, J. [See 304 N. Y. 760, 798.]


text:
    Emilio Poccia, as Limited Administrator of the Estate of Stephen Poccia, Deceased, Respondent, v. City of New York, Appellant, et al., Defendants.
    Argued June 3, 1952;
    decided July 15, 1952.

      Denis M. Hurley, Corporation Counsel (Edward J. McLaughlin and Seymour B. Quel of counsel), for appellant.

      Ralph Stout and Robert H. Kilroe for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    The People of the State of New York ex rel. 180 Varick Street Corporation, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [172-180 Varick St., Borough of Manhattan.]
    Argued June 4, 1952;
    decided July 15, 1952.

      Louis Boehm, and Robert L. Boehm for appellant.

      Denis M. Hurley, Corporation Counsel (Edith I. Spivaclc and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Frank Fosella, Appellant.
    Submitted June 6, 1952;
    decided July 15, 1952.

      Reuben R. Sirlin, Isaac Rubin and Milton D. Jacobs for appellant.

      George M. Fanelli, District Attorney (Douglas L. McGuire of counsel), for respondent.
   Judgment affirmed; no opinion.

' -Concur: LouGHRAir, Ch. J., Lewis, Conway, Desmond, Dye, ' Ftjld and Fboessel, JJ. ■ ------


text:
    Peter F. Lynch, Respondent, v. George D. Bailey et al., Doing Business as Touche, Niven, Bailey & Smart, Appellants.
    ■ Argued May 19, 1952;
    decided July 15, 1952.

      Howard T. Milman, Eustace Seligman and Henry N. Ess III, for appellants.

      Mahlon Dickerson, A. V. Cherbonnier, Helen F. Tuohy and Murray D. Welch, Jr., for respondent.
   Order aErmed, with costs. Question certified answered in the negative. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    James Hallas, Appellant, v. North River Insurance Company of New York, Respondent. James Hallas, Appellant, v. Cosmopolitan Mutual Fire Insurance Company of New York, Respondent.
    Argued May 27, 1952;
    decided July 15, 1952.

      Leo B. Mittelman and Frederick W. Scholem for appellant.

      Samuel A. Berger and Irwin Leibowits for respondents.
   In each case: Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of Milton Goldman for a Writ of Habeas Corpus to Inquire into Cause of Detention of Rudolph Gonzalez, Appellant, against William E. Snyder, as Warden of Sing Sing Prison, Respondent. The People of the State of New York, Respondent.
    Argued June 2, 1952;
    decided July 15, 1952.

      Martin Benjamin for appellant.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman, Wendell P. Brown and Vincent A. Marsicano of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Loughran, Cli. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    David H. McHale, Appellant, v. State of New York, Respondent.
    (Claim No. 29090.)
    Argued June 3, 1952;
    decided July 15, 1952.

      Francisco Penberthy for appellant.

      Nathaniel L. Goldstein, Attorney-General (Ronald E. Coleman and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of 52 Clark Inc., Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued June 5, 1952;
    decided July 15, 1952.

      Milton A. Seymour for appellant.

      Emory Gardiner and Robert E. Schaffer for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Theodore Young et al., Appellants, v. State of New York, Respondent.
    (Claim No. 28929.)
    Argued June 6, 1952;
    decided July 15, 1952.

      Harold E. Blodgett, Loren W. Lillis and Donald Smith for appellants.

      Nathaniel L. Goldstein, Attorney-General (John R. Davison and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. Wallace Ford, Jr., Appellant.
    Argued May 28, 1952;
    decided July 15, 1952.

      James W. Murray and Sherwin V. Wittman for appellant.

      Wallace J. Stahel, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Lewis, Dye, Fuld and Fboessbl, Jj. Desmond, J., dissents and votes to reverse the judgment of conviction and for a new trial in opinion in which Lotjghban, Ch. J., concurs. Not sitting: Conway, J.

Desmond, J.

(dissenting). Defendant was convicted of murder in the first degree for the killing of his sister-in-law, and was sentenced to death. Of the several points argued by his counsel, one only merits discussion here, but that point discloses an error which requires a reversal of the conviction.

The attorneys assigned by the court to represent defendant retained, with the court’s permission, two psychiatrists to examine defendant. Both testified as defense witnesses. Neither was of the opinion that defendant was “ insane ”, under the old common-law test which has been written into section 1120 of the Penal Law, but both thought, as did the psychiatrists who were called by the People, that defendant was a ‘ ‘ psychopathic personality ”. The killing was freely admitted by defendant, but his psychiatrists were both of the opinion that he was incapable of premeditation or deliberation. The homicide was a brutal one, without reasonable motivation, and there was much in defendant’s history to mark him as a man who had little judgment or intelligence, and made little use of what he had. The jury had to decide whether there had been enough of premeditation and deliberation to make out first degree murder, and the jury must have wrestled hard with that question, since they returned, after some deliberation, to hear again the court’s definition of “premeditate ”. For all those reasons, it was most important that the jurors have the full benefit of whatever defendant’s experts had to offer in proof of their assertions that defendant, while not “ legally insane ”, was of limited mental capacity.

Dr. Yochelson, one of the psychiatrists called to the stand by defendant, had had three interviews with defendant, at the county jail, on three different days. He told the court and jury what he had observed on the first and third of those occasions, but as to the second, he was not allowed to testify. It appeared that, after hearing from defendant, at the first interview, a rambling and incredible story of the occurrences on the night of the killing, Dr. Yochelson, on his second visit to the jail, injected into defendant a dose of sodium amytal, popularly called ‘ truth serum.” The District Attorney objected to any testimony as to what happened after that. The witness was allowed, however, to explain that sodium amytal injections produce drowsiness and result in uninhibited disclosures by the subject, and that their use is a recognized method for testing mental conditions. He swore that he himself had used such tests more than three thousand times, that he had lectured about them and demonstrated them clinically to students, and that, while not infallible or universally accepted, the method was a standard and valid one. He was not asked to confirm these statements, but our own investigation bears them out (see, for instance, Journal of the American Medical Association, Yol. 95, No. 16, Oct. 18, 1930, p. 1168; American Journal of Psychiatry, Yol. XI, 1932, pp. 1083-1091; American Journal of the Medical Sciences, July, 1945, p. 125 et seq.] Physical Methods of Treatment in Psychiatry, by Sargant and Slater, 1948, pp. 132-138; American Practitioner and Digest of Treatment, Jan., 1950, p. 148 et seq.).

After Dr. Yochelson had thus stated his own qualifications, and had described the purposes and utility of the test and its acceptance by the profession, the Trial Justice refused to let him give any further testimony as to the second interview or meeting with defendant, that is, the one at which defendant was under the influence of the drug. The ground for that ruling was that there was no showing that the details and results of such a test had ever been admitted in evidence in a New York court. Actually, we did discuss the use of sodium amytal, for testing sanity, in 1942, in People v. Esposito (287 N. Y. 389) and we there (see p. 397) referred to it as one of the “ methods set up objectively by the medical profession for the proper determination of such claims ’ ’, that is, claims of deranged mental condition. But whether the courts, or the cases, approve of sodium amytal testing was not the point at all. This psychiatrist, after showing his own qualifications and extensive experience, had described the test as a valid one in common use. Having thus established himself as one whose opinion was acceptable, he was entitled to give, and defendant was entitled to put before the jury, the facts on which that opinion was based. ‘ It was essential that the jury should be informed as to the facts upon which the expert based his conclusions in order to determine whether they were well founded ” People v. Strait (148 N. Y. 566, 570) recently quoted with approval in People v. Samuels (302 N. Y. 163, 172) and see other decisions cited in the Samuels opinion; also, see, People v. Youngs (151 N. Y. 210, 218). As Judge Bartlett wrote in People v. Nino (149 N. Y. 317, 327): These general principles are elementary; the jury are entitled to all the facts on which the expert bases his opinion. If he answers a hypothetical question, the facts therein set forth have been proved on the trial; if he rests his answers on facts and knowledge he has acquired himself, he must impart them to the jury.” Other relevant material may be found in Matteson v. New York Central R. R. Co. (35 N. Y. 487, 490, 491); Marx v. Ontario Beach Hotel & Amusement Co. (211 N. Y. 33, 39); People v. Soper (243 N. Y. 320, 327, 328); People v. Kohlmeyer (284 N. Y. 366, 369, 370); People v. Draper (278 App. Div. 298, affd. 303 N. Y. 653); 2 Wigmore on Evidence ([3d ed.], § 445), and 2 Wharton on Criminal Evidence ([11th ed.], p. 1679).

This expert witness did state an opinion in answer to a hypothetical question, and he gave that same opinion as based on the first and third interviews, but as to that part of his knowledge or impression which he acquired by testing, he had to remain silent. It is not for us to guess what that testing did show, or what the psychiatrist would have claimed for it. The case should, therefore, be tried again.

People v. Forte (279 N. Y. 204) which approved a trial court’s refusal to give a defendant permission for a lie detector ” test has nothing to do with our question here. Forte wanted to have the lie detector ” mechanism report to the court whether he was telling the truth, and such a mechanical method of answering that question is not yet accepted by our courts (see Richardson on Evidence [7th ed.], § 534). Nothing so startling was attempted by the defense here.

The judgment of conviction should be reversed, and a new trial ordered. [See 304 N. Y. 759.]


text:
    The People of the State of New York, Respondent, v. Benjamin Kopf, Appellant.
    Argued June 2, 1952;
    decided July 15, 1952.

      Herbert L. Buttenberg and Louis E. Cohen for appellant.

      Frank 8. Hogan, District Attorney (Chester E. Kleinberg of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Joe Smith, Inc., Respondent, v. Otis-Charles Corp., Appellants, et al., Defendants.
    Argued June 3, 1952;
    decided July 15, 1952.

      Benjamin E. Shove for appellant.

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

Concur: Loughran, . Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Accounting of United States Trust Company of New York, as Temporary Administrator of the Estate of and as Executor of Eugene Higgins, Deceased. Daniel P. Cousteau, Respondent, v. United States Trust Company of New York, as Executor of Eugene Higgins, Deceased, Appellant.
    Argued June 4, 1952;
    decided July 15, 1952.

      J ohn If. Harlan and Orwill V. W. Hawkins for appellant.

      Kenneth W. Greenawalt, Hugo Kohlmann and John H. Barber for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Accounting of United States Trust Company of New York, as Temporary Administrator of the Estate of and as Executor of Eugene Higgins, Deceased. Martin J. Dietz, Respondent, v. United States Trust Company of New York, as Executor of Eugene Higgins, Deceased, Appellant.
    Argued June 4, 1952;
    decided July 15, 1952.

      John M. Harlan and Orwill V. W. Hawkins for appellant.

      Kenneth W. Greenawalt, Hugo Kohlmann and John H. Barber for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    The People of the State of New York, Respondent, v. Robert J. Berner, Appellant.
    Argued June 6, 1952;
    decided July 15, 1952.

      James A. Hughes for appellant.

      Jack E. Gellman, District Attorney (William H. Earl of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Coxway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Ciro Longobucco, Appellant, v. Sam Latella et al., Respondents.
    Submitted April 16, 1952;
    decided July 15, 1952.

      Dante 8. Alberi for appellant.

      David G. Gilberg for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Conway, Desmond, Dye and Froessel, JJ. Dissenting : Lotighran, Ch. J., Lewis and Ftjld, JJ.


text:
    Herman Wohlers et al., Respondents, v. Frank Martorella et al., Appellants.
    Argued April 22, 1952;
    decided July 15, 1952.

      Victor House and William Saxe for appellants.

      Abraham Rudolph and Murray Rosen for respondents.
   Order affirmed, with costs. First question certified answered in the negative. Second question certified not answered. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Timothy F. Dinan et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent. In the Matter of Harry R. Sweitzer et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Argued June 2, 1952;
    decided July 15, 1952.

      Leopold V. Rossi, Lester G. Knopping and John H. Scully for Timothy F. Dinan and others, appellants.

      Bernard A. Ábrashhin for William Best and another, appellants.

      T. Robert Gabrielli for Harry R. Sweitzer and others, appellants.

      Denis M. Hurley, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Howard C. Rischbach of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    James Blake, Appellant, v. City of New York, Respondent.
    Argued June 3, 1952;
    decided July 15, 1952.

      Samuel Brill and Isidor Sachs for appellant.

      Denis M. Hurley, Corporation Counsel (Edivard J. McLaughlin and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Mid-States Freight Lines, Inc., et al., Appellants, v. Spencer E. Bates et al., Constituting the State Tax Commission, Respondents.
    Argued June 5, 1952;
    decided July 15, 1952.

      Herbert Burstein, Sidney E. Cohn, Nathan E. Zelby, Hyman N. Gliclcstein, Harris J. Klein and Sol Bubenstein for appellants.

      Nathaniel L. Goldstein, Attorney-General (John C. Grary, Jr., Wendell P. Brown and Bobert W. Bush of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 304 N. Y. 788.]


text:
    In the Matter of Henry M. Garsson, Respondent, against William J. Wallin et al., Constituting the Board of Regents of the University of the State of New York, et al., Appellants.
    Argued June 6, 1952;
    decided July 15, 1952.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for appellants.

      Meyer Kraushaar for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Dezso Sulyok, Appellant and Respondent, v. Penzintezeti Kozpont Budapest, Respondent and Appellant.
    Argued June 3, 1952;
    decided July 15, 1952.

      Lasslo Korofiendi for appellant and respondent.

      Paul L. Boss and Martin Popper for respondent and appellant.
   Per Curiam.

In this suit by plaintiff against defendant, a banking institution, incorporated by the Hungarian Parliament in 1916, for breach of a five-year contract of employment, the courts below granted plaintiff recovery — the trial court for upwards of $76,000, the Appellate Division for about $63,000. In arriving at its figure, the trial court had allowed damages for loss of salary as well as for loss of pension rights, while the Appellate Division permitted recovery only for the latter item. We agree with the result attained by the trial court; in our view, plaintiff was entitled, by reason of his wrongful discharge, to recover, not only for loss of pension rights — computed at 60% of his salary, the rate at which he would have been compensated had he served five years — but also for said loss of salary.

The judgment of the Appellate Division should be modified in accordance with this opinion, and, as so modified, affirmed, with costs to the plaintiff.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment accordingly. [See 304 N. Y. 742.]


text:
    In the Matter of New York Conference Association of Seventh-Day Adventists, Respondent, against Jefferson Schenck et al., as Assessors and Trustees of the Village of Union Springs, Cayuga County, Appellants. In the Matter of New York Conference Association of Seventh-Day Adventists, Respondent, against Harry Nutt et al., as Assessors of the Town of Springport, Cayuga County, Appellants. (Two Cases.)
    Argued May 19, 1952;
    decided July 15, 1952.

      Robert D. Jones for appellants.

      Raymond M. Rush for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughrax, Ch. J., Lewis, Coxway, Desmoxd, Dye, Fuld and Fboessel, JJ.


text:
    American President Lines, Ltd., Respondent, and Pope & Talbot, Incorporated, Intervener, Respondent, v. Charles King, Individually and as an Officer of the Brotherhood of Marine Engineers, et al., Appellants.
    Argued May 22, 1952;
    decided July 15, 1952.

      Seymour W. Miller, Louis B. Heller, Harry Heller and Max M. Bernstein for appellants.

      William G. Symmers and David H. Batchelder, Jr., for respondents.
   ■ Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Dye, Fuld and Feoessel, JJ. Desmond, J., dissents in the following memorandum: 1 dissent and vote to reverse and to dismiss the complaint, for these reasons: This picketing may have been unfair and ill-advised, but it was not disorderly or untruthful, it violated no statute or declared public policy, and it was of a kind that has been expressly held, on many occasions, not to be subject to injunction (Stillwell Theatre v. Kaplan, 259 N. Y. 405, 412; Edjomac Amusement Corp. v. Empire State Motion Picture Operators' Union, 273 N. Y. 647; see Dinny & Robbins v. Davis, 290 N. Y. 101). However much we, as individuals, may deplore the conduct complained of, we cannot make an ad hoc declaration of new public policy to prohibit it (Glaser v. Glaser, 276 N. Y. 296, 302; Matter of Rhinelander, 290 N. Y. 31, 36). Not sitting: Conway, J.


text:
    In the Matter of Beckie Grodofsky, Respondent, against Joseph D. McGoldrick, as State Rent Administrator, Respondent, and Alex Sanders, Appellant.
    Argued June 3, 1952;
    decided July 15, 1952.

      Murray I. Sommer and Milton Sanders for appellant.

      Hyman Krugman for Decide Grodofsky, respondent.

      John V. Browne and Robert H. Schaffer for Joseph D. McGoldrick, as State Rent Administrator, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of Hoban & Sullivan, Inc., Appellant, against New York State Liquor Authority et al., Respondents.
    Argued June 4, 1952;
    decided July 15, 1952.

      William D. Sullivan for appellant.

      William Hoppen and Alvin McKinley Sylvester for respondents.
   Order of the Appellate Division reversed and the determination of the State Liquor Authority annulled, with costs in this court and in the Appellate Division, upon the ground that the finding of the Authority that the licensee had suffered or permitted gambling on the licensed premises in violation of subdivision 6 of section 106 of the Alcoholic Beverage Control Law is not supported by any substantial evidence. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Nassau County Relative to Acquiring Title to Horse Brook, Westerly Branch, from Northerly Line of New York Telephone Company, Northerly to Bedell Street, in the Village of Hempstead. Wilmore Realty Corp., Respondent; Mary D. Lansing et al., Appellants.
    Argued June 5, 1952;
    decided July 15, 1952.

      Thomas P. Tredway, Jr., for appellants.

      John G. O’Malley and Joseph V. McKee for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    Henry Martin, Respondent, v. Fast Theatres, Inc., Appellant.
    Argued June 6, 1952;
    decided July 15, 1952.

      John J. Scully for appellant.

      Simon Rosenstoclc for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughkan, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Mary-Alice Rodgers, Respondent, v. William H. Rodgers, Appellant.
    Submitted July 15, 1952;
    decided July 15, 1952.

      Maurice B. WhitebooTc for motion.

      Roger Hinds opposed.
   Motion denied, with $10 costs. [See 304 N. Y. 591.]


text:
    Francis J. Mulligan, Public Administrator of the County of New York, as Administrator of the Estates of Albert Andersen and Others, Deceased, Appellant, v. Bethlehem Steel Co., Respondent, et al., Defendants.
    Submitted May 26, 1952;
    decided July 15, 1952.

      Irving Frank and Jacob Bassner for'motion.

      Harold B. Medina, Jr., opposed.
   Motion dismissed, with $10 costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Joseph Burstyn, Inc., Appellant, against Lewis A. Wilson, as Commissioner of Education of the State of New York, et al., Respondents.
    Submitted July 15, 1952;
    decided July 15, 1952.

      Ephraim 8. London for motion.

      Charles A. Brind, Jr., for respondents.
   Motion granted. Return of remittitur requested and when returned it will be amended to provide as follows: Order of Appellate Division reversed and determination of respondents annulled, with costs in this court and in the Appellate Division; motion that appellant have restitution of the sum of $329.10, heretofore paid to respondents in satisfaction of the judgment entered by respondents for costs and disbursements on the previous affirmance herein, granted.


text:
    Peppy Massler, Appellant, v. Margaret Smit, Respondent.
    Submitted July 14, 1952;
    decided July 15, 1952.

      Leo Brown for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless, within ten days, appellant serves and files an undertaking on appeal and pays $10 costs and, within twenty days, files the return on appeal, in which events motion denied.


text:
    In the Matter of the Application of Samuel Gellman, an Attorney, Appellant. Rosicato Builders, Inc., Plaintiff, v. Berrian & 45th Realty Corp. et al., Defendants. William Green, Doing Business under the Name of Green Construction Company, Respondent.
    Submitted July 15, 1952;
    decided July 15, 1952.

      Samuel Weiss for motion.

      Samuel Gellman, in person, opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless, within ten days, appellant serves and files an undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    In the Matter of Samuel Cole, Appellant, against Agnes Winfield et al., Constituting the Committee on Vacancies Named in a Petition Designating J. Lewis Fox as Candidate of the Democratic Party for the Office of Member of Assembly, 12th Assembly District in the County of Queens, et al., Respondents.
    Argued August 15, 1952;
    decided August 15, 1952.

      Moses Z. Yam for appellant.

      Abner H. Pike, for J. Lewis Fox, respondent.

      Denis M. Hurley, Corporation Counsel (Irwin L. Hersog of counsel), for Board of Elections of the City of New York, respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of Thomas F. Carroll et al., Appellants, against William J. Heffernan et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued August 15, 1952;
    decided August 15, 1952.

      George H. Fitzgerald for appellants.

      Roland G. Bucher for John J. Walsh, respondent.

      Denis M. Hurley, Corporation Counsel (Irwin L. Herzog of counsel), for Board of Elections of the City of New York, respondent.
   Order affirmed; no opinion.

Concur: Lottghban, Ch. J., Lewis, Desmond, Dye, Fuld and Fboessel, JJ. Not sitting: Conway, J.


text:
    In the Matter of James A. Delehanty, as Third Deputy Police Commissioner of the City of New York, Respondent. John F. Sullivan, Appellant.
    Argued September 8, 1952;
    decided September 8, 1952.

      Herbert Edelherts and Irving Mendelson for appellant.

      Denis M. Hurley, Corporation Counsel (Victor J. Herwits, Seymour B. Quel and Milton Mollen of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughkan, Ch. J., Lewis, Desmond, Dye and Fuld, JJ. Dissenting: Conway, J. Not sitting: Fbobssel, J.


text:
    In the Matter of James A. Delehanty, as Third Deputy Police Commissioner of the City of New York, Respondent. Charles Goubeaud, Appellant.
    Argued September 8, 1952;
    decided September 8, 1952.

      Sydney Rosenthal and Real Kaufman for appellant.

      Denis M. Hurley, Corporation Counsel (Seymour B. Quel, Victor J. Herwits and Milton Molten for counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye and Fuld, J.T. Dissenting: Conway, J. Not sitting: Froessel, J.


text:
    In the Matter of Eugene F. Bannigan et al., Appellants, against William J. Heffernan et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Stephen C. Sanzillo et al., Interveners, Respondents.
    Argued September 15, 1952;
    decided September 15, 1952.

      Abraham J. Multer, Louis L. Friedman and Harold L. Fisher for appellants.

      Denis M. Hurley, Corporation Counsel (Irwin L. Herzog of counsel), for Board of Elections, respondent.

      John P. McGrath for Thomas E. Morrissey, Jr., and others, respondents.

      George J. Bosling for Stephen C. Sanzillo and another, interveners-respondents.
   Order affirmed; no opinion.

Concur: Lewis, Conway, Desmond, Dye and Ftjld, JJ. Not sitting: Loughran, Ch. J., and Froessel, J.


text:
    Pauline Baum, Respondent, v. Hadassa Crosfield, Appellant.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Armende Lesser for motion.

      Herbert G. Bants opposed.
   Motion dismissed for want of jurisdiction. (Civ. Prac. Act, § 589, subd. 1, cl. [b].)


text:
    Joseph Cardinal, Doing Business under the Name of Cardinal Engineering Company, Appellant and Respondent, v. State of New York, Respondent and Appellant.
    (Claim No. 28951.)
    Submitted October 6, 1952;
    decided October 9, 1952.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 304 N. Y. 400.]


text:
    James A. Carey, Respondent, v. Pell, de Vegh & Company, Inc., et al., Appellants.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Charles Trynin for motion.

      Boy F. Wrigley and Samuel Brenner opposed.
   Motion dismissed for want of jurisdiction, with $10 costs and necessary printing disbursements. (Civ. Prac. Act, § 589, subd. 1, cl. [b].)


text:
    City of Yonkers, Respondent, v. Rentways, Inc., Defendant, and Devonshire Lane Service, Inc., et al., Appellants.
    Submitted October 6, 1952;
    decided October 9, 1952.

      J. Raymond Hannon, Corporation' Covmsel {John Preston Phillips of counsel), for motion.

      Eugene L. Bondy and Bertram Braufman opposed.
   Motion denied, with leave to renew upon the argument.


text:
    Concetta W. Ciufo, Respondent, v. Frank W. Ciufo, Appellant.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Merle Lewis Sheffer for motion.

      Frank D. Pappalardo opposed.
   Motion dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    George Colon Contracting Corporation, Appellant, v. Joseph J. Morrison et al., Constituting the Watertown Housing Authority, Respondents.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Benedict Ginsberg, Charles Kissel and Frederick L. Kane for motion.

      W. Glenn Larmonth and Paxton Blair opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Harry M. Elish et al., Appellants, v. St. Louis Southwestern Railway Company, Respondent, et al., Defendants.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Abraham K. Weber for motion.

      Willkie Owen Farr Gallagher S Walton opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right.


text:
    Arthur Grossman, an Infant, by Charles Grossman, His Guardian ad Litem, et al., Respondents, v. Ralph Boisseau, Individually and Doing Business under the Name of Hudson Oil Transportation Company, Appellant.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Richards W. Hannah, Bernard Meyerson and Alan W. Craig for motion.

      Isidor Enselman, Lawrence I. Hirsch and Gustave G. Rosenberg opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the papers were not served and filed within the time provided by subdivision 3 of section 592 of the Civil Practice Act.


text:
    Myrl R. Howe, Respondent, v. Robert E. Howe, Appellant.
    Submitted October 6, 1952;
    decided October 9, 1952.

      John J. Mahon for motion.

      Ryan and Kaplan opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the motion in the Appellate Division for leave to appeal to the Court of Appeals was not timely made. (See Eagle v. City of New York, 298 N. Y. 792.)


text:
    Irene M. Lavin, as Administratrix of the Estate of Kenneth J. Lavin, Deceased, Respondent, v. Goldberg Building Material Corp., Appellant, et al., Defendants.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Morris Simon for motion.

      Owen D. Connolly, Jr., opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of John Chironna et al., Similarly Situated, Appellants, against James S. Watson et al., Constituting the Civil Service Commission of the City of New York, Respondents, and Jack R. Roitburd et al., Similarly Situated, Interveners, Respondents.
    Submitted October 6, 1952;
    decided October 9, 1952.
   Motion for reargument and for a stay denied, with $10 costs and necessary printing disbursements. [See 304 N. Y. 255.]


text:
    In the Matter of Joseph Lewis, Appellant, against Nathaniel L. Goldstein, as Attorney-General of the State of New York, et al., Respondents.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Martin J. Scheiman for motion.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Abe Wagman of counsel), opposed.
   Motion dismissed upon the ground that the papers were not served and filed within the time provided by subdivision 3 of section 592 of the Civil Practice Act.


text:
    Ed G. Nelson et al., Appellants and Respondents, v. Mills Music, Inc., Respondent and Appellant, and “Jane” Pease, as Executrix of Harry Pease, Deceased, Impleaded Defendant, Appellant and Respondent.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Theodore B. Kupferman and Samuel Jesse Bussell for motion.

      Abner Greenberg opposed.
   Motion granted and cross appeal dismissed, with costs and $10 costs of motion.


text:
    The People of the State of New York, Appellant, v. Stanley S. Corwin, Respondent.
    Submitted October 6, 1952;
    decided October 9, 1952.
   Motion for reargument or, in the alternative, for clarification of the opinion denied. [See 304 N. Y. 362.]


text:
    The People of the State of New York ex rel. Nathaniel I. Becker, Appellant, against Warden of Bellevue Prison Ward et al., Respondents.
    Submitted October 6, 1952;
    decided October 9, 1952.
   Motion for reargument of motion for leave to appeal denied. [See 302 N. Y. 944.]


text:
    James Pupa, Jr., Respondent, v. Aquarium Restaurant, Inc., Appellant.
    Submitted October 6, 1952.

      Harold A. Lipton and A. Edward Masters for motion.

      Martin A. Crean for appellant.
   Motion withdrawn.

Appeal withdrawn.


text:
    Societe Anonyme Selfix, Appellant, v. Bernhard Altmann, Respondent.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Ambrose Doskow for cross motion to dismiss appeal and in opposition to motion for .leave to appeal.

      Thomas W. Kelly for motion for leave to appeal and in opposition to cross motion to dismiss appeal.
   Cross motion to dismiss appeal granted and appeal taken as of right dismissed, with costs and $10 costs of motion.

Motion for leave to appeal denied, with $10 costs and necessary printing disbursements.


text:
    Dezso Sulyok, Appellant and Respondent, v. Penzintezeti Kozpont Budapest, Respondent and Appellant.
    Submitted October 6, 1952;
    decided October 9, 1952.
   Motion to amend remittitur, for reargument and for a stay denied, with $10 costs and necessary printing disbursements. [See 304 N. Y. 704.]


text:
    Dorothy Tisi, Respondent, v. Nicolas Tisi, Appellant.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Garry G. Blaustein for motion.

      Bernard Meyerson opposed.
   Motion dismissed, with. $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Western New York Water Company, Appellant, v. Erie County Water Authority et al., Respondents.
    Submitted October 6, 1952;
    decided October 9, 1952.

      Melvin L. Bong and Elmer R. Weil for motion.

      Reid 8. Moule and Raymond T. Miles opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.