text:
    Carl A. Long, Jr., an Infant, by Carl A. Long, His Guardian ad Litem, Respondent, v. City of Dunkirk et al., Defendants, and Gleasner Compressed Air Supply and Equipment Company, Appellant. Carl A. Long, Respondent, v. City of Dunkirk et al., Defendants, and Gleasner Compressed Air Supply and Equipment Company, Appellant.
    (Argued October 13, 1932;
    decided October 28, 1932.)

      Frank Gibbons for appellant.

      Murle L. Rowe for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Anna Corbin, Respondent, v. The Commercial Travelers Mutual Accident Association of America, Appellant.
    (Submitted October 13, 1932;
    decided October 28, 1932.)

      Henry C. Moses for appellant.

      A. Earl Baumgarten and Frank W. Brooks for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Allan Bond et al., Respondents, v. Norman K. Winston, Appellant.
    (Submitted October 13, 1932;
    decided October 28, 1932.)

      George P. Halperin, Daniel Katz and Meyer Bodenstein for appellant.

      Albert Massey for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Francis J. Ward, Appellant.
    (Argued October 14, 1932;
    decided October 28, 1932.)

      Benjamin F. Spellman and Howard Hilton Spellman for appellant.

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

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


text:
    In the Matter of the Application of the City of New York, Respondent, to Acquire Real Estate in the Town of Yorktown, Westchester County, for Protection of Water Supply. Sarah Percy et al., Appellants.
    (Submitted October 24, 1932;
    decided October 28, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 556.)


text:
    Manufacturers Trust Company, as Trustee, Appellant, v. Roerich Museum et al., Respondents, Impleaded with Others.
    (Submitted October 24, 1932;
    decided October 28, 1932.)
   Motion to amend remittitur denied, without costs. (See 260 N. Y. 562.)


text:
    In the Matter of Nicholas L. Leone, Appellant, against Harry J. Brewer et al., Constituting the Building Commission of the Town of Mamaroneck, Respondents.
    (Submitted October 24, 1932;
    decided October 28, 1932.)
   Motion for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 386.)


author: Crane, J. (dissenting).

text:
    Theodore Parnell, an Infant, by Matthew Parnell, His Guardian ad Litem, Respondent, v. Holland Furnace Company et al., Appellants. Matthew Parnell, Respondent, v. Holland Furnace Company et al., Appellants.
    (Argued October 17, 1932;
    decided November 22, 1932.)

      Alpheus R. Phelps for Holland Furnace Company, appellant.

      Glenn A. StocJcwell for Herman Brandt, appellant.

      Francis T. Findlay and Carlos C. Alden for respondents.
   Judgment in each case affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien and Crouch, JJ.; Crane, J., dissents in opinion in which Kellogg and Hubbs, JJ., concur.

Crane, J. (dissenting).

In affirming this recovery we are going further than any case heretofore reported, and in my judgment placing a heavier burden upon business organizations than common foresight demands.

At Main street and Linwood avenue in the city of Niagara Falls the Holland Furnace Company rented a shop for carrying on its business., A lot or vacant land separated its place from two other buildings owned by the same landlord. The tenants used the between land in common. An employee of the furnace company owned an old Ford automobile which he had sometimes used in the company’s business but which had been discarded, dismantled and left unused in the yard near the shop. Children of the neighborhood played about the buildings and in and on this old car. Surely the furnace company was under no duty to keep it in repair as a plaything. In the tank of the car was some gasoline. This tank was properly and securely capped. The day before the accident this cap had been removed by mischievous boys and some water poured into the tank. The plaintiff, a young boy, while standing on the running board of the car, knocked together two stones and an explosion occurred which seriously burned him.

The furnace company, which did not own the car, has been held hable in heavy damages for its negligence in permitting this old dismantled car to remain on its property in a condition dangerous to children; that is for having gasoline stored in a tank properly capped, where children might get hurt if they meddled with it.

No liability followed from permitting lime to escape into the street from barrels, although a young boy, seven years old, took some of the lime and was injured by pouring water on it. (Beetz v. City of Brooklyn, 10 App. Div. 382, 385.) The court said: The lime was harmless as it lay upon the street; it was only made dangerous by the active intervention of two other agencies, the boy who carried it and its contact with water.”

In Flaherty v. Metro Stations, Inc. (202 App. Div. 583; affd., 235 N. Y. 605), gasoline was kept in open milk cans on premises frequented by children. Some, of. this gasoline was taken by young boys to a nearby bonfire, causing injury to the plaintiff whose clothing had been sprinkled with the fluid. The defendant was not charged with negligence in thus leaving gasoline in cans on its premises.

So also we find liability not extended, although injury followed from defendant’s agency in Beickert v. G. M. Laboratories (242 N. Y. 168, 172), where burning picture film injured the plaintiff. The defendant’s film escaped into a lot where children played, but this court in reversing a judgment for the plaintiff said: The rule seems to be thoroughly settled, at least in this State, that a plaintiff cannot recover in cases of this character unless the article which causes the injury is inherently dangerous. These pieces of film were not inherently dangerous, and only became so when they were ignited.”

In Hall v. New York Telephone Co. (214 N. Y. 49, 52) the defendant left a bottle of denatured alcohol, used in its work, upon a public highway where it was found by the plaintiff, aged nine, and his young brother. By ignition the plaintiff was hurt, but this court in reversing his judgment said: In order to hold the defendant responsible for- the result of this accident it must be found that the accident was the natural and probable consequences of the act of the servant in having left the alcohol upon the highway. * * * We do not agree that the facts in this case created a condition the result of which might under the circumstances have been reasonably expected.” (See, also, Perry v. Rochester Lime Co., 219 N. Y. 60.)

Gasoline is in common use by automobilists. While cars are parked in streets or public lots, or near playgrounds, gasoline is stored in their tanks from which the caps may be easily removed by mischievous children. Is one to be held hable if an explosion occurs in consequence of such interference and without any notice of the existing condition? It is conceded in this case that the furnace company had no notice, actual or constructive, of the exposed gasoline tank. To go one step farther, is one guilty of negligence for leaving gasoline in his car or in cans properly capped on his own premises, simply because children, his own and others, play around the grounds or garages, and may in play remove the stopper or cap? Such an extension of responsibility is somewhat startling. The next element is our present case. Is an old and discarded car, kept on private property where children may come, such an inherently dangerous trap or contrivance, if it has some gasoline in its corked tank that liability follows as a matter of course, when some child takes off the stopper and ignites the gasoline?

In my judgment the furnace company could not reasonably be expected to anticipate that its employee’s old, dismantled car, stored on its premises, would become a danger through a boy knocking two stones together, or to put the proposition the other way, the company as to playing children was under no duty to examine the car to remove all gasoline as it was reasonably safe where and as it was with the gas tank properly secured, unless some other agency interfered to make it unsafe.

The judgment should be reversed.


text:
    In the Matter of Michael O’Brien, Appellant, against The Board of Supervisors of Rensselaer County et al., Respondents.
    (Argued October 5, 1932;
    decided November 22, 1932.)

      Herbert F. Boy for appellant.

      T. Stewart Hubbard for respondents.
   Order affirmed, with costs, on the authority of Matter of Buehler v. Board of Supervisors of Rensselaer County (260 N. Y. 268). No opinion.

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


text:
    The People of the State of New York, Respondent, v. Vincent Garcia, Appellant.
    (Argued October 10, 1932;
    decided November 22, 1932.)

      A. Bruce Hopkins and Ira M. J. Hovey for appellant.

      Raymond A. Knowles, District Attorney (Harry L. Gilrie of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Thomas Carpenter and Charles Bates, Appellants.
    (Argued October 10, 1932;
    decided November 22, 1932.)

      John Dwight Sullivan and Herbert Loewenthal for Thomas Carpenter, appellant.

      Albert H. Vitale, Leo H. Klugherz and Harry A. Sam-berg for Charles Bates, appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Peter Harris; Appellant.
    (Argued October 10, 1932;
    decided November 22, 1932.)

      John H. Ryan and Frank J. Shaffer for appellant.
    A. Edward Krieger, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alexander Nunes, Appellant.
    (Argued October 11, 1932;
    decided November 22, 1932.)

      Myron J. Shon for appellant.

      Frank H. Coyne, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Max Katz, Respondent, v. Central Hanover Bank and Trust Company, Appellant.
    (Argued October 3, 1932;
    decided November 22, 1932.)

      Albert Stickney and T. R, Iserman for appellant.

      Louis Engelberg for respondent.
   Appeal dismissed, with costs, on the ground that no final judgment can be entered until after the accounting. No opinion.

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


text:
    Robert D. Lyon, an Infant, by John C. Goodfellow, His Guardian ad Litem, Respondent, v. Queensboro Corporation, Appellant.
    (Argued October 17, 1932;
    decided November 22, 1932.)

      William Dike Reed, Edwin H. Updike and Godfrey E. ' Updike for appellant.

      Stephen Callaghan and John Boyle, Jr., for respondent
   Judgment affirmed, with costs; no opinion.

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


text:
    Clarence H. Fay et al., as Substituted Trustees under the Will of John Cromwell, Deceased, Appellants, v. Anne F. Moehlenpah et al., Respondents, Impleaded with Others, Defendants.
    (Argued October 17, 1932;
    decided November 22, 1932.)

      E. Crosby Kindleberger and Maxwell Rubin for appellants.

      Winfred C. Allen for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Eugene P. Summerson et al., as Executors of Robert G. Reese, Deceased, Respondents. Louise DeL. Reese, Appellant; Phoebe S. Peterson et al., Respondents.
    (Argued October 18, 1932;
    decided November 22, 1932.)

      Harrison Tweed and John E. Lockwood for appellant.

      John Me Kim Minton, Jr., and W. H. L. Edwards for Eugene P. Summerson et ah, as executors, etc., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Melissa E. Austin, as Administratrix of the Estate of Charles Austin, Deceased, Respondent, v. New York Central Railroad Company, Appellant.
    (Argued October 18, 1932;
    decided November 22, 1932.)

      K. 0. Mott-Smith and Clive C. Handy for appellant.

      Charles D. Lems and John Ambrose Goodwin for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and new trial granted, with costs to abide the event, on the authority of Chesapeake & Ohio Railway Co. v. Nixon (271 U. S. 218). No opinion.

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


text:
    Louise deL. Reese, Respondent, v. Algernon B. Reese, Appellant.
    (Argued October 18, 1932;
    decided November 22, 1932.)

      J. M. Richardson Lyeth, Leslie D. Dawson and H. Henry Ramm for appellant.

      Carleton 8. Cooke and Frank L. Holt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Allen H. Kerr, Appellant, v. Cunard Steamship Company, Ltd., Respondent.
    (Argued October 18, 1932;
    decided November 22, 1932.)

      Arthur W. Clement and Henry J. Bogatko for appellant.

      Allan B. A. Bradley, James S. Hemingway and Joseph W. Wyatt for respondent,
   i Judgment affirmed, with costs; no opinion..

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


text:
    Charles D. Harris, Respondent, v. New York City Interborough Railway Company, Appellant.
    (Argued October 19, 1932;
    decided November 22, 1932.)

      Alfred T. Davison, Victor McQuistion and Addison B. Scoville for appellant.

      Thomas J. O’ Neill and Charles D. Lewis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob L. Wollenberg et al., Copartners, under the Firm Name of Wollenberg & Son, Respondents, v. Pearl-Willoughby Corporation, Appellant.
    (Argued October 19, 1932;
    decided November 22, 1932.)

      Harry G. Anderson and Louis J. Moss for appellant.

      Ralph Stout and Charles H. Levy for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of George H. Parks, Deceased. Harriet P. Duport et al., Appellants; Louis F. Hyde et al., as Executors of Louis M. Brown, Deceased, Respondents.
    (Argued October 19, 1932;
    decided November 22, 1932.)

      Leslie J. Tompkins for appellants.

      James McPhillips and C. E. Fitzgerald for respondents.
   Appeal dismissed, with costs, as no exceptions were filed to the findings made by the Surrogate and embodied in the decision. (Matter of Findlay, 253 N. Y. 1.) No opinion.

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


text:
    Frank O’Neill, Respondent, v. Owens & Co., Inc., Defendant, and United Dressed Beef Company of New York, Appellant.
    (Argued October 19, 1932;
    decided November 22, 1932.)

      George J. Stacy and James J. Mahoney for appellant.

      James E. Smith, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Mack, an Infant, by William Mack, His Guardian ad Litem, et al., Respondents, v. New York Protestant Episcopal Mission Society, Appellant.
    (Submitted October 19, 1932;
    decided November 22, 1932.)

      James J. Mahoney and George J. Stacy for appellant.

      Milton Speiser and Joseph Speiser for respondents.
   Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed, with costs in all courts. Held, that plaintiff failed to establish negligence of the defendant. No opinion.

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


text:
    In the Matter of Philip Braico et al., Appellants; Nora M. Powers, Respondent. (Change of Grade of Voorhies Avenue, Borough of Brooklyn.)
    (Argued October 19, 1932;
    decided November 22, 1932.)

      Louis M. Liebert for appellants.

      Charles A. Webber for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kello.gg, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York, Respondent, v. William Turner, Appellant.
    (Argued October 21, 1932;
    decided November 22, 1932.)

      Alexander I. Rorke and John W. Clancy for appellant.

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, Hubbs and Crouch, JJ.: O’Brien, J., dissents on the ground that the verdict was against the weight of evidence on the question of insanity.


text:
    F. R. Tripler & Co., Inc., Appellant, v. Bernard Weatherill, Inc., Respondent.
    (Argued October 21, 1932;
    decided November 22, 1932.)

      Christian S. Lorentsen and Charles E. Kelley for appellant.

      H. T. Mann for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Glenn Graves, Respondent, v. Roy S. Rudman, Appellant.
    (Argued October 21, 1932;
    decided November 22, 1932.)

      Sidney K. Backus for appellant.

      David Posner and Hyman G. Gould for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Viola Stakel, Respondent, v. City of Batavia, Appellant.
    (Argued October 21, 1932;
    decided November 22, 1932.)

      Clayton M. Smith and Fred Van Aernam for appellant.

      Walter J. Davison for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and complaint dismissed, with costs in all courts, on the authority of Hamilton v. City of Buffalo (173 N. Y. 72); Butler v. Village of Oxford (186 N. Y. 444); Terry v. Village of Perry (199 N. Y. 79); Lalor v. City of New York (208 N. Y. 431). No opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles Rippo and Leonard Rippo, Appellants.
    (Argued October 24, 1932;
    decided November 22, 1932.)

      LeBoy Campbell for appellants.

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

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


text:
    In the Matter of the Claim of International Railway Company, Appellant, v. The State of New York, Respondent.
    (Argued October 24, 1932;
    decided November 22, 1932.)

      Edward E. Franchot and Harr op A. Freeman for appellant.

      John J. Bennett, Jr.] Attorney-General' (Arthur T. McAvoy of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thomas J. Morrison, Appellant, v. John D. Mack et al., as Water Commissioners of North Gates Water District in the Town of Gates, Respondents.
    (Argued October 24, 1932;
    decided November 22, 1932.)

      Philip M. Liebschutz for appellant.

      Charles B. Bechtold for respondents.
   Judgment affirmed, with costs. Held, that the water commissioners may sue and be sued only for the breach of a contract entered into by them, pursuant to the Town Law. No opinion.

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


text:
    The P. H. and F. M. Roots Co., Respondent, v. Simmons Machine Tool Corporation, Appellant.
    (Argued October 24, 1932;
    decided November 22, 1932.)

      Oliver J. Flynn for appellant.

      Eugene J. Hummer and C. Raymond Burton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thomas L. Lyons et al., Plaintiffs, v. Elizabeth W. Wylde, Individually and as Executrix and Trustee under the Will of Edward Wylde, Deceased, Appellant, and Samuel M. Wylde et al., Respondents, Impleaded with Others.
    (Argued October 25, 1932;
    decided November 22, 1932.)

      Charles H. Tuttle for appellant.

      Francis B. Hamlin and Malcolm C. Law for Samuel M. Wylde et ah, respondents.

      Archibald R. Watson, Ralph 0. Willguss and Hyman W. Gamso for Clarence M. Lewis, as substituted trustee under the will of Edward Wylde, deceased, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of The New York Trust Company, as Trustee under the Will of Augustus C. Downing, Deceased. Augustus C. Downing et al., Appellants; Milton S. Dillon, as Executor of Lucy S. Dillon, Deceased, et al., Respondents.
    (Argued October 25, 1932;
    decided November 22, 1932.)

      Irwin L. Tappen, Albridge C. Smith and Howard A. Marx for appellants.

      Charles H. Tuttle, John B. Nash and George S. Clay for Milton S. Dillon, as executor of Lucy S. Dillon, deceased, respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    In the Matter of the Transfer Tax upon the Estate of Jennie Woolworth, Deceased. Helena W. McCann et al., as Administrators of the Estate of Jennie Woolworth, Deceased, Appellants; State Tax Commission, Respondent.
    (Argued October 25, 1932;
    decided November 22, 1932.)

      Charles H. Tuttle, John Burnet Nash, Paul Armitage, Edward A. Craighill, Jr., and Charles E. F. McCann for appellants.

      Harry M. Peyser, Percy D. Stoddard and Jerome M. Hirsch for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    Florence M. Sewall et al., Appellants, v. Edmond J. Fitz Gibbon, Respondent. Joseph Gioscia, Appellant, v. Edmond J. Fitz Gibbon, Respondent.
    (Submitted October 26, 1932;
    decided November 22, 1932.)

      A. Page Smith and Daniel H. Prior for appellants. ■

      Michael D. Reilly, Harold J. O’Keefe and Irwin M. Ives for respondent.
   In each case, judgment of the Appellate Division reversed and new trial granted, with costs to abide the event, on the ground that there was evidence of adverse possession to create an issue of fact and the dismissal of the complaint was error. No opinion.

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


text:
    Carl Hartman, Appellant, v. Otis Elevator Company, Respondent.
    (Argued October 26, 1932;
    decided November 22, 1932.)

      Arnold J. Brock and Osmond K. Fraenkel for appellant. Bertrand L. Pettigrew for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Kontzamanys, Respondent, v. Tillie Cohen, as Administratrix of the Estate of David S. Cohen, Deceased, et al., Defendants, and Tillie Cohen, Doing Business under the Name of American Store Fixture Co., Appellant.
    (Submitted October 26, 1932;
    decided November 22, 1932.)

      Morris W. Vogel, William V. Homans and George Silver-man for appellant.

      Max Herzfeld, Morton D. Stone and Harry H. Altman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Lloyds First Mortgage Corporation, Respondent, v. Thomas H. Lynch et al., Constituting the State Tax Commission, Appellants.
    (Argued October 26, 1932;
    decided November 22, 1932.)

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

      Clarence B. Plantz, Nathaniel J. Harben and Ralph C. Taylor for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Ida Dugan, Respondent, v. New York Telephone Company, Appellant. Peter Dugan, Respondent, v. New York Telephone Company, Appellant.
    (Argued October 26, 1932;
    decided November 22, 1932.)

      Irving W. Young, Jr., N. H. Egleston, Edward F. Snydstrup and Charles T. Russell for appellant.

      Myle J. Holley and Herman Zarin for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Sarah J. Stokes, as Administratrix of the Estate of John J. Stokes, Deceased, Respondent, v. The Delaware and Hudson Railroad Company, Appellant.
    (Argued October 27, 1932;
    decided November 22, 1932.)

      Joseph Rosch, P. C. Dugan and J. L. Fitzgerald for appellant.

      Willard R. Pratt and Sharon J. Mauhs for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph E. Corrigan, Appellant, v. The State of New York, Respondent.
    (Argued October 27, 1932;
    decided November 22, 1932.)

      Caruthers Emng and John D. Lindsay for appellant.

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

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


text:
    Martin E. Bloom, Respondent, v. Fidelity and Deposit Company of Maryland, Appellant, Impleaded with Another.
    (Argued October 27, 1932;
    decided November 22, 1932.)

      Joseph F. Murray for appellant.

      David S. Edgar, Jr., and Philip V. Manning for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Peter H. McNulty et al., Copartners under the Firm Name of McNulty Bros., Respondents, v. Theresa C. Kammerer, Appellant, Impleaded with Others, Defendants.
    (Argued October 27, 1932;
    decided November 22, 1932.)

      Thomas D. Austin and Edward T. Johnberg for appellant.

      James F. T. Delaney for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Dwelle-Kaiser Co., Plaintiff, v. Le Vell Moon, Doing Business under the Name of John Moon & Son, et al., Defendants, Wicker Lumber Company, Appellant, and Columbia Casualty Company, Respondent.
    (Argued October 27, 1932;
    decided November 22, 1932.)

      Robert J. Moore for appellant.

      Stanley H. Montfort for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Solomon Morris, Respondent, v. Sadye R. Morris, Individually and as Administratrix of the Estate of Harry Morris, Deceased, et al., Appellants.
    (Argued October 27, 1932;
    decided November 22, 1932.)

      Daniel J. Dugan, Isadore Bookstein and- Avrom M. Jacobs for Sadye R. Morris, appellant.

      Harris Jay Griston and Norman M. Beck for Sylvia F. Morris et al., infants, appellants.

      P. C. Dugan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Van Bramer, Appellant.
    (Submitted November 21, 1932;
    decided November 22, 1932.)
    ' Thomas C. T. Crain, District Attorney (Irving J. Tell of counsel), for motion.

      Joseph M. Klein opposed.
   Motion granted and appeal dismissed unless defendant brings case on for argument on third Monday of the present session; otherwise denied.


text:
    The People of the State of New York, Respondent, v. Randolph Neuman, Appellant.
    (Submitted November 21, 1932;
    decided November 22, 1932.)

      Thomas G. T. Crain, District Attorney (Felix C. Benvenga of counsel), for motion.

      Alexander Pfeiffer opposed.
   Motion granted and appeal dismissed unless appeal is brought on for argument on third Monday of the present session, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Marcus Blumenthal, Defendant, and Nicholas Rutigliano, Appellant.
    (Submitted November 21, 1932;
    decided November 22, 1932.)

      Thomas C. T. Grain, District Attorney (Felix G. Ben~ venga of counsel), for motion.

      Jacob A. Segal opposed.
   Motion granted and appeal dismissed unless appellant file and serve his record on appeal on or before January 9, 1933, and bring the case on for argument on January 16, 1933, in which event the motion is denied.


text:
    The People of the State of New York ex rel. B. P. Ducas Company, Inc., Appellant, against The State Tax Commission, Respondent.
    (Submitted November 21, 1932;
    decided November 29, 1932.)
   Motion to amend remittitur denied. (See 260 N. Y. 525.)


text:
    Mary G. Pulsifer, Respondent, v. Hamilton McInnes, as Executor of William E. Pulsifer, Deceased, Appellant.
    (Argued November 21, 1932;
    decided November 29, 1932.)

      G. J. Rhodius, Jr., for motion.

      Hamilton McInnes opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion. •


text:
    The People of the State of New York, Respondent, v. Ben Weiss, Appellant.
    (Submitted November 21, 1932;
    decided November 29, 1932.)

      Thomas C. T. Grain, District Attorney {John G. McDermott of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Irene Hart, Respondent, v. The Travelers Insurance Company, Appellant.
    (Submitted November 21, 1932;
    decided November 29, 1932.)

      Joseph A. Reilly for motion.

      William J. Moran opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Howard G. Bishop, Appellant, Impleaded with Another, v. Willis P. Thomas et al., Defendants; Bessie B. Akin et al., Appellants, and New York Central Railroad Company et al., Respondents.
    • (Submitted November 21, 1932;
    decided November 29, 1932.)

      B ardid Swain for motion.

      Joseph B. Thompson opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants within ten days file and serve the written undertaking, in which event the motion is denied.


text:
    Victor Brang, Appellant, v. Margaret Stachnik, Respondent.
    (Submitted November 21, 1932;
    decided November 29, 1932.)

      Charles P. Hallock for motion.

      Max A. Gulack opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant files the return within ten days and pays ten dollars costs, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Harry Connor, Appellant.
    (Submitted November 21, 1932;
    decided November 29, 1932.)

      Thomas C. T. Crain, District Attorney {John C. McDermott of cpunsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Widening of Chrystie, Forsyth, Hester, Broome, Rivington and Stanton Streets, in the Borough of Manhattan, City of New York. David Davis et al., Respondents.
    (Submitted November 21, 1932;
    decided November 29, 1932.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 585.)


text:
    In the Matter of the Claim of James W. Cross against John P. Whittley, Respondent. The State Industrial Board, Appellant.
    (Argued November 21, 1932;
    decided November 29, 1932.)

      Andrew Wright Lent for motion.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), opposed.
   Motion denied, with ten dollars costs.


text:
    Irma Wolf, Appellant, v. 243 Corporation, Respondent.
    (Submitted October 28, 1932;
    decided December 6, 1932.)

      S. Charles /Sheer and William H. Schreiber for appellant.

      Aaron William Levy and Louis E. Goldstein for respondent.
   Judgment affirmed, with costs, on the ground that no exception presents a question of law for review in this court. No opinion.

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


text:
    In the Matter of Henry Morris, Inc., Appellant, against The Department of Health of the City of New York et al., Respondents.
    (Submitted November 21,1932;
    decided December 6,1932.)

      Max Rothenberg for appellant.

      Arthur J. W. Hilly, Corporation Counsel" (J. Joseph Lilly and Milton I. Hauser of counsel), for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of Pascal C. J. DeAngelis et al., Constituting the Board of Education of the City of Utica, Appellants, against Daniel Laino et al., Constituting the Common Council of the City of Utica et al., Respondents.
    (Argued November 21, 1932;
    decided December 6, 1932.)

      Warnick J, Kernan for appellants.

      J. Herbert Gilroy, Corporation Counsel, for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Aaron M. Blattman, Appellant, against James E. McDonald, as Chief City Magistrate of the Magistrates’ Court of the City of New York, Respondent.
    (Argued November 21, 1932;
    decided December 6, 1932.)

      Samuel Scheuer for appellant.

      J ames E. McDonald, in person, for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of Byron W. Stowe, Respondent, against The Board of Supervisors of Rensselaer County et al., Appellants.
    (Submitted November 21, 1932;
    decided December 6, 1932.)

      T. Stewart Hubbard for appellants.

      Herbert F. Roy for respondent.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the authority of Matter of Buehler v. Board of Supervisors of Rensselaer County (260 N. Y. 268). No opinion.

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


text:
    In the Matter of Margaret C. Conklin, Respondent, against Isaac A. Tuttle et al., as Administrators of the Estate of William H. Tuttle, Deceased, Appellants.
    (Submitted November 21, 1932;
    decided December 6, 1932.)

      David S. Murden for appellant.

      Douglas Macduff for respondent.
   Order affirmed, with costs payable out of the estate. Question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Claim of Emma Montgomery, Respondent, against Bartholomay Milk Company et al., Appellants. State Industrial Board, Respondent.
    (Argued November 22, 1932;
    decided December 6, 1932.)

      William Warren Dimmick for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Boy Wiedersum of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Samuel Dorfman, as Committee of Beckie Dorfman, against Hyman Levine et al., Respondents. State Industrial Board, Appellant.
    (Argued November 22, 1932;
    decided December 6, 1932.)

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for appellant.

      William Warren Dimmick for respondents.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Nettie Lichtenager against Samuel Silverman et al., Respondents. State Industrial Board, Appellant.
    (Submitted November 22, 1932;
    decided December 6, 1932.)

      John J. Bennett, Jr., Attorney-General {Joseph A. McLaughlin and Abraham Brekstone of counsel), for appellant.

      Frank L. Ward for respondents.
   Order affirmed, with costs against the State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Ida Jacobs, Respondent, against A. Sherman Lumber Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted November 22, 1932;
    decided December 6, .1932.)

      Dickinson S. Talley for appellants.

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

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


text:
    Charles L. Meckenberg, as Trustee in Bankruptcy of Sam Scheinblum Building Corporation, Appellant and Respondent, v. T. H. Fraser Mortgage Corporation, Respondent and Appellant, Impleaded with Another.
    (Submitted November 28, 1932;
    decided December 6, 1932.)

      Samuel Okin for motion.

      Robert P. Orr opposed.
   Motion denied with leave to renew on the argument of the appeal.


text:
    Fidelity Trust Company of New York, Appellant, v. United States Fidelity and Guaranty Company, Respondent.
    (.Argued November 22, 1932;
    decided December 13, 1932.)

      Oscar R. Houston and Donald A. Gray for appellant.

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

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


text:
    James A. Taylor, Respondent, v. Elmer Wilson et al., Appellants.
    (Argued November 23, 1932;
    decided December 13, 1932.)

      Cola W. Lyon for appellants.'

      Walter C. Garey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Kathryn Baker, Respondent, v. Charles B. Schleyer et al., Appellants, Impleaded with Another.
    (Argued November 23, 1932;
    decided December 13, 1932.)

      Charles B. Bechtold for appellants.

      Luther Ira Webster for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Revocation of Letters of Administration Issued to Sally Caplan on the Estate of Max Caplan, Deceased, Respondent. In the Matter of the Accounting of Sally Caplan, Removed Administratrix of the Estate of Max Caplan, Deceased, Respondent; Hyman Caplan et al., Appellants.
    (Argued November 23, 1932;
    decided December 13, 1932.)

      Robert W. Fisher for appellants.

      John J. McManus for respondent.
   Order affirmed, with costs against appellants personally; no opinion.

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


text:
    Edward V. Lawler, Respondent, v. Florence E. McMullin et al., Defendants; Wallace E. Shirra et al., as Executors of John Powers, Deceased, Respondents; and The Royal Bank of Canada, Appellant.
    (Submitted November 23, 1932;
    decided December 13,1932.)

      Matthew J. Shevlin and Karl G. Kdlish for appellant.

      Joseph B. Kelley and Philip J. Termini for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Buffalo Association of Fire Underwriters, Appellant, v. Noxsel-Dimick Company, Respondent.
    (Argued November 28, 1932;
    decided December 13, 1932.)

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

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O'Brien and Hubbs,-JJ. Not sitting: Crouch, J.


text:
    Elsie J. Hassall, Respondent, v. Christopher J. Moore et al., Appellants.
    (Argued November 29, 1932;
    decided December 13, 1932.)

      Martin Conboy, David Asch, William J. Butler and Daniel G. Connolly for Christopher J. Moore et al., appellants.

      Daniel G. Connolly and Thomas F. Magner for Anne Moore, appellant.

      Emil Weitzner and Philip Scharf for respondent.
   Appeal from judgment so far as it directs an accounting dismissed; otherwise judgment affirmed, with costs; no opinion.

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


text:
    Sam Finkelstein, Appellant, v. Celia Freeman et al., Respondents.
    (Submitted December 5, 1932;
    decided December 13, 1932.)
   Motion for reargument of motion to dismiss appeal denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 565.)


text:
    Hessian Hills Country Club, Inc., Plaintiff, and Abe Fischer, Respondent, v. Hartford Fire Insurance Company et al., Appellants; Hessian Hills Country Club, Inc., Plaintiff, and Abe Fischer, Respondent, v. The Home Insurance Company, Appellant.
    (Submitted December 5, 1932;
    decided December 13, 1932.)

      Almond D. Fisk for appellants.

      Alfred B. Nathan for respondent.
   Each appeal dismissed, with costs, on the ground the order appealed from is not a final order.


text:
    The Mayaguez Drug Company, Inc., Appellant, v. The Globe and Rutgers Fire Insurance Company of New York, Respondent.
    (Submitted December 12, 1932;
    decided December 13, 1932.)
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 356, 567.)


text:
    Gertrude Baty, Appellant, v. The City of Binghamton, Respondent. George F. Baty, Appellant, v. The City of Binghamton, Respondent.
    (Argued November 30, 1932;
    decided December 16, 1932.)

      C. Addison Keeler for appellants.

      William L. Lewis, Corporation Counsel, for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Fritz S. Lust, Appellant, v. Hanover National Bank, Respondent. (Actions Nos. 1 and 2.) Frederick S. Lust, Appellant, v. Hanover National Bank of New York, Respondent. (Action No. 3.)
    (Argued November 30, 1932;
    decided December 16, 1932.)

      Louis Boehm, David Baseh and Martin C. Ansorge for appellant.

      Theodore J. Miller for respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    Emma F. Sobieski et al., as Executors of Julia Harsche, Deceased, Appellants, v. Mercedes Benz Co., Inc., Appellant, and Anna Novick, Respondent.
    (Argued November 30, 1932;
    decided December 16, 1932.)

      Manuel M. Voit for' plaintiffs-appellants.

      William F. McNulty, Harold R. Medina, Harold R. Oakes and William Butler for respondent.
   Order as to plaintiffs’ appeal affirmed and judgment absolute ordered against plaintiffs-appellants on the stipulation, with costs in all courts. Appeal by Mercedes Benz Co., Inc., from order granting a new trial as to Anna Novick, dismissed, with costs. No opinion.

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


text:
    Elizabeth Wrightington et al., Respondents, v. L. Wertheimer, Inc., Appellant.
    (Argued November 30, 1932;
    decided December 16, 1932.)

      Robert H. Charlton and Paul B. Kaufman for appellant.

      Bertram Boardman and Rose Greenberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John F. Weinheimer, Respondent, v. Elizabeth K. Hutzler, Appellant; Murdock G. Mann et al., Defendants, and Albert A. Fisher, Surviving Partner of Martin Fisher & Sons, Respondent. (Two Actions.)
    (Argued November 30, 1932;
    decided December 16, 1932.)

      Frank Gibbons for appellant.

      Vincent T. Ray for John F. Weinheimer, respondent.

      Alger A. Williams and James E. Owens for Albert A. Fisher, respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    Bleakley Transportation Co., Inc., Appellant, v. Tomkins Cove Stone Co., Inc., Respondent. (Actions 1 and 2.)
    (Argued December 1, 1932;
    decided December 16,1932.)

      J ay Leo Rothschild, William F. Purdy and Louis Rivkin for appellant.

      J ames M. Gorman and Richard F. Lenahan for respondent.
   Judgments affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien, Htjbbs and "Crouch, JJ.


text:
    G. Goldberg & Sons, Inc., Respondent, v. Weisberg-Goldman Corporation et al, Appellants.
    (Argued December 1, 1932;
    decided December 16, 1932.)

      Frank Weinstein and Samuel J. Levinson for WeisbergGoldman Corporation, appellant.

      C. Elmer Spedick for Title Guarantee and Trust Company, appellant.

      Milton Elias Schattman for respondent.
   Judgment as to Weisberg-Goldman Corporation affirmed, with costs. Judgment as to Title Guarantee and Trust Company reversed, with costs in all courts, and complaint dismissed as to it. No opinion.

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


text:
    Margaret E. Morey, Respondent, v. The New York Central Railroad Company, Appellant.
    (Argued December 1, 1932;
    decided December 16, 1932.)

      Jacob Aronson, K. O. Mott-Smith and Clive C. Handy for appellant.

      John E. Mack for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles A. Kip et al., as Executors of and Trustees under the Will of George G. Kip, Deceased, et al., Appellants, v. The New York Central Railroad Company et al., Respondents.
    (Argued December 1, 1932;
    decided December 16, 1932.)

      Ernest A. Bigelow, Harold D. Beatty, Enos Throop Geer and James F. Dealy for appellants.

      Jacob Aronson, Crosby J. Beakes and James L. Homire for The New York Central Railroad Company, respondent.

      Henry B. Anderson for The New York and Harlem Railroad Company, respondent.

      Madison G. Gonterman for The New York, New Haven and Hartford Railroad Company, respondent.

      S. S. Jennings, Jr., for 277 Park Avenue Corporation, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dora M. Hughs, Respondent, v. Unadilla Valley Railway Company et al., Appellants. Earnest T. Hughs, Respondent, v. Unadilla Valley Railway Company et al., Appellants. Emogene Craine, Respondent, v. Unadilla Valley Railway Company et al., Appellants. Clifton Craine, Respondent, v. Unadilla Valley Railway Company et al., Appellants.
    (Argued December 1, 1932;
    decided December 16, 1932.)

      Warnick J. Kernan for Unadilla Valley Railway Company, appellant.

      S. W. Brennan for William L. Chesebro et al., appellants.

      Arthur J. Foley and Edward W. Bock for Dora M. Hughs et al., respondents.

      William L. Burke for Emogene Craine et al., respondents.
   Judgment in each action affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Hubbs and Crouch, JJ. Kellogg and O’Brien, JJ., dissent as to the railway company on the ground there is no evidence of the negligence of the railway company.


text:
    Robert K. Stafford, Appellant, Impleaded with Another, v. New York Life Insurance Company, Respondent, Impleaded with Others.
    (Argued December 1, 1932;
    decided December 16, 1932.)

      Robert E. McLear for appellant.

      B. F. Norris and Frank R. Pitt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ella N. Seiniger, as Executrix of Samuel Seiniger, et al., Respondents, v. Theodore Hoffacker et al., Copartners under the Firm Name of Theodore Hoffacker & Company, Appellants.
    (Argued November 28, 3932; discontinued December 16, 1932.)

      Theodore Kiendl, George M. Skinner and Charles Poletti for appellants.

      Max Shlivek and Saul S. Brin for respondents.
   Appeal discontinued upon stipulation of the parties.


text:
    Sterling Motor Truck Co. of N. Y., Inc., Appellant, v. Bella Schuchman, Respondent.
    (Submitted December 12, 1932;
    decided December 16, 1932.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y. 358.)


text:
    Francis E. deRaismes, Respondent, v. Harold L. R. Thomas et al., Appellants.
    (Submitted December 12, 1932;
    decided December 16, 1932.)
   Motion to amend remittitur granted; return of remittitur requested and when returned it will be amended so as to provide that the new trial is granted, with costs “ to the appellants ” to abide the event. (See 260 N. Y. 272.)


text:
    Arrow Iron Works, Inc., Respondent, v. Harry B. Greene, Doing Business under the Name of H. B. Greene Contracting Co., et al., Defendants; Bank of Yorktown, Appellant; National Surety Company, Appellant and Respondent, and Empire Brick and Supply Corporation et al., Respondents.
    (Submitted December 12, 1932;
    decided December 16, 1932.)
   Motion for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 260 N. Y, 330.)


author: Lehman, J.

text:
    John Mascioni et al., Copartners under the Firm Name of Mascioni & Bariatti, Respondents, v. I. B. Miller, Inc., Appellant.
    (Argued December 13, 1932;
    decided January 10, 1933.)

      Louis Rosenberg for appellant.
    The Appellate Division was limited in its review to the theory of the.case adopted at the trial by the plaintiffs and could not disregard any of the proof before the trial court. (Matter of Findlay, 253 N. Y. 1; Brady v. Nally, 151 N. Y. 258; Flora v. Carbeau, 38 N. Y. 111.) Assuming the agreement between plaintiffs and defendant to have been the agreement between the parties and so controlling despite the parol testimony of the parties as to the actual agreement, its language is not so free from doubt as to bar consideration of testimony in elucidation of it. (Trustees of Easthampton v. Vail, 151 N. Y. 463; LaBrecque Co. v. Barton, 204 App. Div. 401; Kenyon v. K. T. & M. M. A. Assn., 122 N. Y. 247; Lamb v. Norcross Bros. Co., 208 N. Y. 427; Utica Nat. Bank v. Gunn, 222 N. Y. 204; Camp v. Traynor, 143 N. Y. 649; American Seating Machine Co. v. Stearns, 109 N. Y. 192; White v. Hoyt, 73 N. Y. 505; U. S. Rubber Co. v. Silvern, 221 N. Y. 168; Dann v. Dodge, 126 App. Div. 469.)

      William K. Hyman, Bernard Segall and Warren J. Heeg for respondents.
    The provision of the contract with respect to payment merely fixed the time of payment and did not create a condition precedent. Payment was due to the plaintiff within a reasonable, period of time after the owner should have made it. (Childs v. Smith, 46 N. Y. 34; De Long v. Zito, 135 App. Div. 79; Coneham v. Crosby, 15 Minn. 13; Nunez v. Dautel, 19 Wall. [U. S.] 560; Culver v. Caldwell, 137 Ala. 125; Buckner v. McIlroy, 31 Ark. 631; McIntyre v. Ajax Mining Co., 28 Utah, 162; Ubsdell & Pierson v. Cunningham, 22 Mo. 124; White v. Mining & Milling Co., 28 Utah, 331.)
   Lehman, J.

The plaintiffs and the defendant entered into a written contract whereby the plaintiffs, described in the contract as the “ Sub-Contractor,” agreed to provide all the materials and all the work for the erection of concrete walls, and the defendant, described in the contract as the Contractor,” agreed to pay therefor the sum of fifty-five cents per cubic foot. The concrete walls were to be erected as “ specified in a certain contract between the Contractor and Village Apartments, Inc., described therein as Owner ” and the defendant’s promise to pay contained the proviso: Payments to be made as received from the Owner.” In spite of the fact that the Owner has made no payments to the defendant for the work and materials, or any part thereof, performed and furnished by the plaintiffs, the plaintiffs have recovered a judgment against the defendant for the agreed price.

The problem presented on this appeal is whether the defendant assumed an absolute obligation to pay, though for convenience payment might be postponed till moneys were received from the Owner, or whether the defendant’s obligation to pay arose only if and when the Owner made payment to the defendant. At the trial the plaintiffs, claiming that the contract was ambiguous, were permitted to introduce testimony to show that before the written contract was signed, much of the work had been performed under an oral contract by which the defendant assumed an absolute obligation to pay; and the defendant, though claiming that the written contract, in unambiguous terms, annexed a contingency to the defendant’s obligation to pay, produced parol testimony to show that the plaintiffs expressly assumed the risk that they might never be paid. A judgment in favor of the defendant was reversed by the Appellate Division on the ground that the contract is unambiguous and that the provision with respect to payment “ merely fixed the time of payment and did not create a condition precedent.” (236 App. Div. 688.)

A provision for the payment of an obligation upon the happening of an event does not become absolute until the happening of the event. Whether the defendant’s express promise to pay is construed as a promise to pay " if ” payment is made by the owner or when ” such payment is made, “ the result must be the same; since, if the event does not befall, or a time coincident with the happening of the event does not arrive, in neither case may performance be exacted.” (Amies v. Wesnofske, 255 N. Y. 156, 162.)

True, a debt with consequent obligation to pay may exist aside from any express promise to pay. Then a condition annexed to an express promise to pay the debt may render the promise to pay conditional without making the debt subject to the same condition. It must be admitted, however, that a condition annexed to a promise to pay a debt will commonly, upon the true construction of the instrument in which it is contained, extend to the debt itself. There is a difference also between a promise to pay a debt on a certain condition, and a proviso that the debt shall be payable only upon a certain condition; for the latter necessarily renders the debt itself conditional.” (Langdell, Summary of the Law of Contracts, § 36.) In this case, if there were no express promise to pay a stipulated price for stipulated work, such a promise would be implied. There is, however, an express promise to pay moneys as received from the Owner,” and the event upon which that promise would ripen into an absolute, immediate obligation has not occurred. From the express promise to pay upon the happening of an event, an inference may be drawn that the parties did not intend or impliedly agree that payment should be made even if the event does not occur.

In many cases, nevertheless, an inference, that an express promise to pay a debt on a certain condition excludes an implication that the debt shall be paid, even though performance of the condition is impossible, would defeat the intention of the parties. The tests approved by the Law Institute in its Restatement of the Law of Contracts, section 295, are whether “ (a) a debt for performance rendered has already arisen and the condition relates only to the time when the debt is to be discharged, or (b) existence of the condition is no material part of the exchange for the promiser’s performance and the discharge of the promiser will operate as a forfeiture.” In either case “ impossibility that would discharge the duty to perform a promise excuses the performance of a condition.”

Here on its face the contract provides for a promise to perform in exchange for a promise to pay as payments are received from the Owner.” Performance by the plaintiff would enure directly to the benefit of the Owner and indirectly to the benefit of the defendant, because the defendant had a contract with the Owner to perform the work for a stipulated price. The defendant would not profit by the plaintiffs’ performance unless the Owner paid the stipulated price. That was the defendant’s risk, but the defendant’s promise to pay the plaintiffs for stipulated work on condition that payment was received by the defendant shifted that risk to the plaintiffs, if the condition was a material part of the exchange of plaintiffs’ promise to perform for defendant’s promise to pay.

In many cases similar conditions in contracts for compensation of brokers have been enforced in accordance with the letter of the promise to pay. In principle, brokerage contracts cannot be distinguished from other contracts to pay compensation for services rendered or materials furnished. In each case the intention of the parties to make the debt contingent or otherwise, must be gathered from the language used, the situation of the parties, and the subject matter of the contract, as presented by the evidence.” (DeWolfe v. French, 51 Me. 420; Lighton v. City of Syracuse, 188 N. Y. 499, 504; 2 Williston on Contracts, § 799.)

Here we are not called upon to decide whether the language of the contract, read in the light of the situation of the parties and the subject-matter of the contract, shows clearly and unambiguously that the condition attached to the debt or obligation to pay, and did not merely fix the time of payment. Certainly on its face it is open to the construction that the plaintiffs accepted the condition as a material part of the exchange for their own promise or performance. The trial judge, after receiving parol evidence of the actual intention of the parties, gave it this construction, and that construction was not erroneous as matter of law.

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

Pound, Ch. J., Crane, Kellogg, O’Brien, Hubbs and Crouch, JJ., concur.

Judgment accordingly.


text:
    In the Matter of Eddie Cantor, Appellant. Manufacturers Trust Company, Respondent.
    (Argued December 7, 1932;
    decided January 10, 1933.)

      Herman Shulman, Benjamin Algase and David L. Podell for appellant.
    The reasonable interpretation of section 496 of the Banking Law is that its provisions apply to the dissenting stockholders of all parties to the merger. (Mertz v. Guaranty Trust Co., 247 N. Y. 139.) Where there is any ambiguity in the statute the Legislature must be presumed to have intended a reasonable and practical result, and an interpretation in conflict with reason or justice will not be adopted. (People ex rel. Burhans v. City of New York, 198 N. Y. 439; People v. Santoro, 229 N. Y. 277; Osborne v. International Ry. Co., 226 N. Y. 421.)

      Joseph M. Hartfield and John A. Gifford for respondent.
    A stockholder of the receiving corporation has no right of appraisal under section 496 of the Banking Law. (Matter of Bergdorf, 206 N. Y. 309; Bingham v. Savings Investment & Trust Co., 102 N. J. Eq. 302; Matter of Timmis, 200 N. Y. 177.)
   Lehman, J.

In January, 1932, an agreement for the merger of the Manufacturers Trust Company and the Chatham-Phenix National Bank and Trust Company was “ submitted to the stockholders or shareholders of each of such corporations at a meeting thereof ” called upon due notice. It was approved by the vote of the stockholders or shareholders owning at least two-thirds in amount of the stock of their respective corporations,” as required by section 490 of the Banking Law (Cons. Laws, ch. 2). The petitioner is a stockholder of the Manufacturers Trust Company. He did not vote in favor of the agreement of merger at the meeting of the stockholders of the Manufacturers Trust Company, but made timely objection to the merger and demanded payment for his shares of stock. After the merger took effect, he applied to the court for the appointment of three persons to appraise the value of his stock. His application has been refused.

A merger agreement must specify each corporation to be merged and the corporation which is to receive into itself the merging corporation or corporations.” (Banking Law, § 488.) The statute does not contemplate the formation of a new banking corporation through the consolidation of two existing corporations. The result of the merger is that all the rights, privileges and franchises, and all the property of a corporation which is merged into another, are “ transferred to and vested in the corporation into which it shall have been merged.” Its corporate identity is lost; it ceases to be a corporate entity, while the corporation into which it is merged continues in existence and succeeds to all its “ relations, obligations, trusts and liabilities.” (§ 494.)

Before the merger agreement becomes effective it must be submitted to the stockholders or shareholders of each of such corporations at a meeting thereof to be called upon notice.” (Banking Law, § 490.) "Any stockholder or shareholder not voting in favor of such agreement of merger at the meeting prescribed in section four hundred and ninety of this article, may * * * demand payment for his stock or shares.” (§ 496.) The right to demand payment is thus created and defined by the statute. The merger agreement which was submitted to the stockholders of the Manufacturers Trust Company specified that corporation as the corporation which was to receive into itself the merging corporation.” The question presented on this appeal is whether the right created by the statute is confined to stockholders of a corporation which loses its identity by merger into another, or is broad enough to include stockholders of the corporation which continues to exist though with larger rights, privileges and franchises.

We are told that the Legislature would not have referred in section 496 to “ the meeting prescribed in section four hundred and ninety ” if it had intended that the statute should apply to the stockholders’ meetings of all the corporations entering into the merger agreement as prescribed by the earlier section. That argument lacks substance, for the earlier section in terms prescribes “ a ” meeting of each of such corporations and the ” meeting referred to in the later section can refer only to the meeting of any of such corporations. In both sections the singular form is used and is intended to cover the same field. Certainly there could be no doubt that the Legislature so intended if the two sections had followed each other immediately. It is true, however, that in the intervening sections which, immediately precede section 496, a distinction is recognized between corporations which are merged into another corporation and the corporation into which they are merged, and the respondent urges that this distinction must be read by implication into section 496.

The plain language of section 496 leaves little if any room for such implication, and even if by strained construction we should find such room, the implication itself would still rest on slender grounds. The intervening sections deal with the rights and obligations of the corporations; the sections we are construing deal with the rights of dissenting stockholders. The distinction that the corporation which is merged into another thereby loses its legal existence, while the legal existence of the corporation into which another is merged is continued, necessarily carries with it juridical consequences. For such juridical consequences the Legislature has provided in sections 494 and 495. The rights and obligations of the corporation which continues in existence remain as before unless changed by legislative decree; the rights and obligations of the corporation which after the merger ceases to exist can continue only if transferred to the existing corporation. The Legislature has provided by section 494 for such transfer and continued existence: Nothing appertaining to ” the corporation whose existence was terminated was to be lost, forfeited or destroyed.” (Matter of Bergdorf, 206 N. Y. 309, 317.) After the merger, one corporation was to enjoy all the rights and be subject to all the obligations both of the corporation which absorbed another and of the corporation which was absorbed. At least in regard to corporate transactions with third persons the practical result is the same as if a new corporation had arisen through the consolidation of two existing corporations.

That is true, in all important respects, also with regard to the corporate structure itself. The agreement of merger “ may provide the name to be borne by the receiving corporation and such name may be the name of any corporation which is a party to such agreement.” It may name “ the persons who shall constitute the board of directors or trustees of the receiving corporation.” It may provide for the adoption of new by-laws for the corporation. (§ 488.) Thus the receiving corporation which continues in existence may have a new name, new directors and officers and new by-laws; and there is nothing in the statute which precludes the merging corporations from providing by the merger agreement that name, directors and by-laws shall be those of the corporation which in form has been absorbed by the receiving corporation. The Legislature quite probably assumed that ordinarily the merger agreement would provide that the largest and strongest corporation would by the merger absorb a weaker corporation or corporations; and that its stockholders would still dominate after the merger; but the Legislature has provided no standard by which determination of which corporation should receive the other or others into itself shall be made. That is left to the free choice of the corporations which are parties to the agreement.

In only one unimportant respect does this choice itself necessarily create a practical distinction in the rights of the stockholders of the corporations which are parties to the merger. Certificates of stock in the receiving corporation will continue to represent an interest in an existing corporation. The stockholders in the other corporation or corporations, unless they object to the merger agreement, may automatically become stockholders in the receiving corporation, but their stock certificates represent on their face an interest in corporations which have ceased to exist. The receiving corporation may in such circumstances require the return of the original certificates held by each stockholder in the other corporations and may issue in lieu thereof new certificates for such number of its own shares as such stockholder or shareholder may be entitled to receive under the merger agreement.” (§ 495.) Because this section immediately precedes section 496, we are asked to read into the latter section an implied hmitation that the right of a dissenting stockholder to demand payment for his stock refers only to stockholders who, if they had not dissented, might be compelled to surrender their original stock certificates.

The Legislature in section 495 has drawn a distinction where corporate form carries a practical consequence. We are asked to carry that distinction by implication into a field where juridical forms may carry no practical consequences. There is nothing in the language of the statute, including the juxtaposition of the two sections, which indicates that the Legislature intended such a distinction. The provisions of both sections are drawn from sections 37 and 38 of the Banking Law as enacted by the Laws of 1909, chapter 10 (Cons. Laws, ch. 2). There similar provisions are in the same juxtaposition, but the legislative intent that no such distinctions should be drawn is perhaps even clearer than in the present revision, yet the change in language is slight and certainly indicates no change of legislative intent.

We realize that in time of financial disturbance a merger of a weak financial institution into a stronger institution may serve to restore confidence and be of great service to depositors and public alike. Then the fact that the receiving institution may, as the result of the merger, be compelled to use part of its assets for the payment of its own dissenting stockholders, might conceivably impede a merger and cause disaster. Perhaps dissenting stockholders should not be permitted to impede such a merger. Such arguments must be addressed to the Legislature. It must determine how far mergers should be facilitated and what safeguards should be imposed. It has determined that a dissenting stockholder may demand payment for his stock. It has provided that such a right may be enforced by any stockholder not voting in favor of a merger agreement at the meeting prescribed in section four hundred and ninety ” and the meeting prescribed in section 490 is a meeting of the stockholders of each corporation entering into the merger agreement. The right created by the Legislature cannot upon any ground of assumed public policy be limited by the courts to stockholders of a particular corporation.

The order of the Appellate Division and that of the Special Term should be reversed, with costs in all courts, and the motion granted, with ten dollars costs.

Pound, Ch. J., Kellogg, O’Brien, Hubbs and Crouch, JJ., concur; Crane, J., not sitting.

Orders reversed, etc.


author: Lehman, J. Kellogg, J. (dissenting).

text:
    First National Bank and Trust Company of Yonkers, Appellant, v. Edith S. Palmer, Appellant, and Albert Ritchie, as Guardian ad Litem for Richard Palmer et al., Infants, Respondents, Impleaded with Others. (Actions 1 and 2.)
    (Argued December 9, 1932;
    decided January 10, 1933.)

      Frederick P. King and John R. Bushong for appellants.
    In the absence of a valid direction for the disposition of income within the terms of the trust instrument, the court will not speculate or conjecture as to the intention of the parties. (Nevius v. Dunlap, 33 N. Y. 676; First Nat. Bank v. Palmer, 141 Misc. Rep. 692; Central Union Trust Co. v. Trimble, 255 N. Y. 88; Matter of Silsby, 229 N. Y. 396; Matter of Trevor, 239 N. Y. 6; Farmers Loan & Trust Co. v. Winthrop, 238 N. Y. 477; Matter of Durand, 250 N. Y. 45.) There can be no implication from the terms of the trust agreements of an intent to pay income to either of the infants in the contingency which has occurred. (Matter of Kohler, 96 Misc. Rep. 433; Close v. Farmers L. & T. Co., 195 N. Y. 92; Matter of Hoffman, 201 N. Y. 248; Farmers Loan & Trust Co. v. Winthrop, 238 N. Y. 477; Matter of Durand, 250 N. Y. 45.) The determination of the Appellate Division is based wholly upon conjecture and, in the absence of proof of mistake, is an arbitrary attempt by the court, under the guise of construction, to effectuate a new agreement for the parties. (Halbe v. Adams, 176 App. Div. 588; Nevius v. Dunlap, 33 N. Y. 676; Mead v. Westchester Fire Ins. Co., 64 N. Y. 453; Wilson v. Deen, 74 N. Y. 531; Christopher St. Ry. v. 23rd St. Ry., 149 N. Y. 51; Susquehanna S. S. Co. v. Anderson, 239 N. Y. 285; Southard v. Curley, 134 N. Y. 148; Philippine Sugar Co. v. Philippine Islands, 247 U. S. 385.) Where the income of a valid trust has not been disposed of and the persons presumptively entitled to the next eventual estate cannot be ascertained, it reverts to or remains in the settlor of the trust. (Real Prop. Law, §§ 63, 102; Pers. Prop. Law, §§ 11, 16; U. S. Trust Co. v. Soher, 178 N. Y. 442; Matter of Ready, 132 Misc. Rep. 616; Pruyn v. Sears, 96 Misc. Rep. 200; Cochrane v. Schell, 140 N. Y. 516; St. Johns Inst. v.
      Andrews, 191 N. Y. 254; Matter of Kohler, 231 N. Y. 535; First Nat. Bank v. Palmer, 141 Misc. Rep. 692; Matter of Harteau, 204 N. Y. 292.)

      Albert Ritchie for respondents.
    The trust was contractual, not voluntary, and should be so construed. (Reineke v. Northern Trust Co., 278 U. S. 339; Gillet v. Bank of America, 160 N. Y. 550; Atwater v. Panama R. R. Co., 246 N. Y. 519; Robertson v. Ongley Electric Co., 146 N. Y. 20; Grundt v. Shenk, 222 App. Div. 82; Duttweiler v. Jacobs, 223 App. Div. 292; Fellows v. Fairbanks, 205 App. Div. 271; Johnson v. City of New York, 191 App. Div. 205; 231 N. Y. 564; Jones v. Kent, 80 N. Y. 585; Coyne v. Weaver, 84 N. Y. 386; Pool v. Hill, 1 Hill, 580; Rogers v. Kneeland, 10 Wend. 219; Hegeman v. Moon, 131 N. Y. 462; Genet v. Delaware & Hudson Canal Co., 163 N. Y. 173.) Even if the instruments were construed as voluntary trusts or wills, the plain implication is that the infants should have the income of the principal fund after the death of their aunt and father. (Matter of Buechner, 226 N. Y. 440; Robinson v. Martin, 200 N. Y. 159; Matter of James, 146 N. Y. 78; Mullarky v. Sullivan, 136 N. Y. 227; Matter of Winburn, 141 Misc. Rep. 445; Pond v. Bergh, 10 Paige Ch. 140; Marsh v. Hague, 1 Edw. Ch. 172; Phillips v. Davies, 92 N. Y. 199; Masterson v. Townshend, 123 N. Y. 458; Matter of Farmers’ Loan & Trust Co., 189 N. Y. 202; Close v. Farmers’ Loan & Trust Co., 195 N. Y. 92; Matter of Hoffman, 201 N. Y. 247; Bishop v. Bishop, 257 N. Y. 40; Matter of McGeehan, 200 App. Div. 739; Henriques v. March, 119 Misc. Rep. 674; 209 App. Div. 814; Matter of Schriever, 221 N. Y. 268.) The court is compelled to decide the case upon implication, and it should choose the natural and lawful implication rather than the strained and perhaps unlawful one. (Ossman v. Van Roemer, 221 N. Y. 387; Waterman v. New York Life Ins. & Trust Co., 237 N. Y. 293; Close v. Farmers’ Loan & Trust Co., 195 N. Y. 92.)
   Lehman, J.

The deed of trust is contractual in form,

and the parties thereto are Edith S. Palmer, thereinafter called the settlor, the First National Bank of Yonkers, the trustee, and Edith Palmer Hart, a sister of the settlor’s husband. It is expressly made in consideration of the release by Edith S. Palmer of all her right, title and interest in certain property. The purpose of the deed is recited in the preamble: Whereas the party of the first part desires to create a trust fund for the use, support and benefit of the persons hereinafter mentioned.” The persons thereinafter mentioned in the deed of trust are Edith Palmer' Hart, Leslie It. Palmer, the settlor’s husband, and Wayne Palmer, the settlor’s son.

To carry out the purpose set forth in the preamble, the settlor has by the deed of trust conveyed certain property to the trustee, to be held during the natural lives of said Edith Palmer Hart and of Wayne Palmer, son of said Leslie R Palmer, or the survivor of them.” The settlor irrevocably parted with the ownership of that property. After termination of the trust, the property could in no event revert to the settlor. The provisions in the deed of trust for the disposition of the income are set forth and summarized in Judge Kellogg’s opinion. There is no need to repeat them here. None of the income is reserved in any contingency for the settlor. Express provision is carefully made for the division of the income, so long as either Edith Palmer Hart or Leslie R Palmer survive. So long as Edith Palmer Hart remained alive, she was to receive the sum of $1,500 each year. So long as Leslie R Palmer remained alive, he was to receive the remainder of the income during the continuance of the trust, after deducting the insurance premiums on policies on his life in favor of Wayne, his son. If Leslie R Palmer should die before Edith Palmer Hart, the income payable to him was to go to Wayne, if living, or to his lineal descendants per capita. There is no express provision for the disposition of the income in case Leslie R Palmer should survive Edith Palmer Hart and die before his son, Wayne Palmer. The problem presented is whether there is an implied provision that after the death of both Leslie R Palmer and Edith Palmer Hart the entire income should be paid to Wayne Palmer, the only surviving beneficiary named in the deed of trust.

The trust remains in existence during the lifetime of Wayne Palmer. During the existence of the trust the trustee must pay the income to someone. To whom that income shall be paid depends upon the construction of the deed of trust, read in the light of the surrounding circumstances. If, so read, the intention of the settlor, to provide that in every contingency the income payable to Leslie R Palmer during his lifetime should be paid after his death to his son Wayne Palmer, clearly appears, then that intention must be given effect. On the other hand, if the deed of trust does not provide either in express terms or by fair implication that the income of the trust should be paid to Wayne Palmer, in the event that Leslie R Palmer survives Edith Palmer Hart but dies before Wayne Palmer, then that income is undisposed of during the life of Wayne Palmer and must be paid in accordance with the provisions of law governing undisposed income.

I concede that we cannot dispose of the income in accordance with our own view of what the settlor would have intended if she had thought of this contingency, unless that intention is disclosed on the face of the instrument itself. I concede further that we cannot transpose names, as suggested by the Appellate Division, in order to arrive at the intention. We transpose words or names or clauses only for the purpose of giving grammatical expression to an intention that otherwise appears from the instrument itself. The courts cannot rewrite instruments; their function is confined to construction. None the less, when an intention clearly appears on the face of the instrument, the courts should not defeat that intention by any rules of grammar or rhetoric. Here it seems to me that the trust deed itself by clearest implication declares the intention of the settlor that her son should have the income during his life.

The recital in the deed shows that the trust was for the benefit of three named beneficiaries. The settlor expressly' provided for the share of the income which Edith Palmer Hart should receive during her lifetime. The settlor made express provision for the income which Leslie R Palmer should receive during his lifetime, and that if he died before Edith Palmer Hart the share of the income payable to Leslie R Palmer should be paid to his son, Wayne Palmer. Thus there is express provision for every contingency except the one contingency that during the continuance of the trust both Edith Palmer Hart arid Leslie R Palmer would die. The settlor could hardly have overlooked that contingency, for the trust could not terminate until the death of Wayne Palmer, and the other beneficiaries were Wayne Palmer’s father and aunt. It is inconceivable that the settlor should have forgotten that this contingency might happen when she made the deed of trust. Failure to make express provision for the payment of income in that contingency loses significance under these circumstances. The settlor provided expressly only for the contingencies which would postpone enjoyment of income of the trust in whole or in part by Wayne Palmer until both aunt and father were dead. There was no need for express provision after the death of both, for the whole deed of trust is instinct with the intention that except as provision was made for the other specified beneficiaries, both principal and income should go to Wayne Palmer. Even without the provision for the payment of premiums on policies of insurance on the life of Leslie R Palmer for the benefit of said Wayne Palmer, son of Leslie R Palmer, said policies being in the sum of $30,000,- and the amount thereof to be added to. this trust fund upon the death of Leslie R Palmer,” that intent would be plain. With that provision, it seems to me there can be no possible basis for other construction of the deed of trust.

For these reasons the judgments should be affirmed, with costs.

Kellogg, J. (dissenting).

The defendant Edith S. Palmer made a conveyance of a one-half interest in certain property to First National Bank and Trust Company of Yonkers, the plaintiff, to be held by it upon certain trusts. The beneficiaries of the trust were Leslie R. Palmer, the husband of Edith S. Palmer, Edith Palmer Hart, the sister of Leslie R. Palmer, Wayne Palmer, the son of Leslie and Edith S. Palmer, and the lineal descendants of Wayne. The trust was to endure during the natural lives of Edith Palmer Hart and Wayne Palmer. Edith S. Palmer likewise conveyed to the plaintiff the remaining half of said property, to be held in trust on like terms, except that the other son of Leslie and Edith Palmer, Richard Palmer, was named as beneficiary instead of Wayne Palmer, and the trust was limited to continue during the lives of Edith Hart and Richard. The wording of the two instruments of conveyance is precisely the same, except that where the name of Wayne Palmer appears in the one, the name of Richard Palmer appears in the other. We shall follow the course pursued below and construe the instrument in which the name of Wayne Palmer appears.

The instrument, thus selected, provides that the trustee shall hold the property, collect the interest, income and profits, and pay over the same as follows: To Edith Palmer Hart the whole of said interest, income and profits as long as she may five, provided they do not exceed the sum of Fifteen Hundred Dollars ($1,500) a year; if they exceed the said sum of Fifteen Hundred Dollars ($1,500) a year, to pay over to said Edith Palmer Hart the sum of Fifteen Hundred Dollars ($1,500) a year, and out of the remainder of the income *to pay premiums on policies of insurance on the life of Leslie R. Palmer for the benefit of said Wayne Palmer, son of Leslie R. Palmer, said policies being in the sum- of Thirty Thousand Dollars ($30,000), and the amount thereof to be added to this trust fund upon the death of Leslie R. Palmer, provided this trust be then in existence; to pay the remainder of the said interest, income and profits to Leslie R. Palmer during his life, provided this trust be in existence during said period; if the said Leslie R. Palmer should die before said Edith Palmer Hart, to pay over the remainder of such interest, income and profits to said Wayne Palmer if he is living at such death of Leslie R. Palmer, and, in case of the death of both Leslie R. Palmer and Wayne Palmer prior to the death of Edith Palmer Hart, to pay over the said remainder of such interest, income and profits to the lineal descendants of said Wayne Palmer, if any, per capita. Upon the death of said Edith Palmer Hart, prior to that, of the said Wayne Palmer, and if the said Leslie R. Palmer is living at the time of such death of Edith Palmer Hart, after paying insurance premiums as aforesaid, to pay over the remainder of said interest, income and profits to Leslie R. Palmer during the life of said Wayne Palmer; if said Leslie R. Palmer is dead at the time of such death of Edith Palmer Hart, to pay the whole of said interest, income and profits to Wayne Palmer during his life.”

It is thus provided that while all the named beneficiaries are living, Edith Palmer Hart during life is to be paid $1,500; insurance premiums on policies on the life of Leslie Palmer in favor of Wayne are next to be paid; and the balance of the income is to be paid to Leslie R. Palmer for life. If Leslie should die before Edith Hart, the income previously payable to him is to be paid to Wayne, if living, if not, to the lineal descendants of Wayne, per capita. If Edith Palmer Hart dies before Leslie and Wayne, her annual share, after the payment of premiums, is to be paid to Leslie, during the life of Wayne. If Leslie is then dead, the whole income shall be paid to Wayne during life. It will be noted that, if Edith Hart dies first, Leslie Palmer dies second, and Wayne survives both, there is no provision disposing of the income which has been enjoyed by Leslie, and yet the trust will continue until the death of Wayne.

Of course, it is not enough that a testator or settlor of a trust should entertain a definite intent to make a gift; there must be expression in written words of that intent; otherwise there is no gift. Learned text writers have expressed the thought in differing words: “ Conjecture is not permitted to supply what the testator has failed to indicate.” (1 Jarman on Wills [7th ed.], p. 428.) “ There must be no addition to the text of what is not in it.” (Thayer’s Preliminary Treatise on Evidence, p. 412.) “ Implications in a will are, indeed, often rendered necessary by mistakes of omission. Still, the two things are plainly different; an implication construes the will as it is; a rectification amends and alters it.” (Wigram on Wills [O’Hara 2d ed.], pt. II, p. 41.) “ On the other hand, where a blank space represents a failure to make a final expression of will, the act is incomplete; to supply declarations of intention would be to set up a rival will; there can be no interpretation for there is nothing to interpret.” (Wigmore on Evidence, § 2473.) “ To interpret a legal writing is, therefore, first to collect the intent, to discover the writer’s meaning; secondly, to ascertain that that meaning is expressed sufficiently.” (Thayer’s Treatise, appendix C, p. 581.)

In Central Union Trust Co. v. Trimble (255 N. Y. 88, 91, 93, 94) these facts were considered: Edward R. Thomas made a deed of trust, transferring securities of the par value of $647,000, then yielding an annual income of $50,000, with directions to pay the income, to Robert Livingston Beeckman during life. The deed provided: “ If said annual income shall exceed said sum of $50,000, the excess shall be paid to the settlor.” If Beeckman died first the whole income should be paid to the settlor during fife. No express provision was made as to the disposition of any excess income if the settlor died first. The settlor did in fact die first and there was income in excess of $50,000. It was argued that there was an implied gift of the surplus income to the executors of the settlor. The court held otherwise, and directed the income to be distributed to the person presumptively entitled to the next eventual estate, as provided by Real Property Law (Cons. Laws, ch. 50), section 63; Personal Property Law (Cons. Laws, ch. 41), section 11. The court, writing through Pound, J., said: Processes of construction may not be resorted to for the purpose of reading into the trust deed an intention not expressed or legitimately to be implied from the language used when construed in the light of the surrounding circumstances. We are to search, not for the probable intention of the settlor merely, but for the intention which the trust deed itself, either expressly or by implication, declares.” Again, it is said: “ It is a trite saying that rules of construction are to be applied only to interpret language of ambiguous or doubtful meaning. Here the omission is obvious and the legal implication therefrom inevitable.”

No pretense is made in this case that an intention to give the income of the trust to Wayne Palmer, after the death of Edith Hart and the subsequent death of Leslie Palmer, is embodied in words contained in the deed of trust. The argument is that the settlor, having given the income, previously shared by Leslie, in case of bis death before the death of Edith Hart, to Wayne Palmer, must have intended to make the same gift, in case Leslie died after Edith. This is merely to say that had the settlor thought of it he would have made the gift; in other words, his failure to express his intent was a mere omission. Certainly, the expression of such an intent may not be traced to any set of words used by the settlor. We may not supply them to make good the clear omission.

In the deed of trust, wherein Wayne Palmer is a beneficiary, the instrument provides that on the termination of the trust by the death of Edith Hart and Wayne Palmer, the principal of the trust, if Leslie be not alive, shall pass to the children, grandchildren and great-grandchildren of Wayne Palmer. In the deed of trust, in which Richard Palmer is beneficiary, provision is made that, in the same event, the principal shall pass to the children, grandchildren and great-grandchildren of Richard. Both Wayne and Richard áre infants and have had no children. Therefore, the provisions of Real Property Law, section 63, and of Personal Property Law, section 11, to the effect that in like cases the undisposed income must pass to the “ persons presumptively entitled to the next eventual estate,” cannot apply, since the persons who might be so entitled are not now in existence. Pending the arrival of a time when there might be such person, the undisposed income must be paid to the settlor. (United States Trust Co. v. Soher, 178 N. Y. 442.)

The judgments of the Appellate Division in the two cases should be reversed, with costs in this court and the Appellate Division, and the judgments of the Special Term affirmed.

Crane, O’Brien and Hubbs, JJ., concur with Lehman, J.; Kellogg, J., dissents in opinion in which Pound, Ch. J., and Crouch, J., concur.

Judgment affirmed.