text:
    The People of the State of New York, Appellant, v. The City of New York et al., Respondents.
    (Argued April 27, 1932;
    decided May 13, 1932.)

      John J. Bennett, Jr., Attorney-General (Hugh Reilly and Arthur J. Stern of counsel), for appellant.

      Arthur J. W. Hilly, Corporation Counsel {Alfred D. Jahr, M. J. Konnoson and Edwin J. Talley of counsel), for the City of New York, respondent.

      H. E. Konnoson and M. J. Konnoson for Louis Finfer, respondent.
   Judgment affirmed, with costs; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Edward Decker, Respondent, against Stephen B. Story, as City Manager of the City of Rochester, Appellant.
    (Argued April 27, 1932;
    decided May 13, 1932.)

      Clarence M. Platt, Corporation Counsel (George B. Draper of counsel), for appellant.

      William De Graff and John D. Sullivan for respondent.
   Appeal dismissed, with costs, on the ground that this is not a case for judgment absolute on stipulation. (People ex rel. Judson v. Thacher, 55 N. Y. 525.) No opinion.

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


text:
    Williams-Dexter Co., Inc., Respondent, v. Dowland Realty Corporation, Appellant, Impleaded with Others.
    (Submitted April 29, 1932;
    decided May 13, 1932.)

      Bernhard Steinman and Henry A. Uterhart for appellant.

      Almet R. Latson, Jr., and William T. Condon for respondent.
   Order affirmed, with costs. First, second, third and fourth questions certified answered in the negative; fifth question answered in the affirmative. No opinion.

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


text:
    In the Matter of Eugene R. Hurley, Appellant, against Thomas S. Cheshire, as Board of Election of the County of Nassau, Defendant. The People of the State of New York, Respondent.
    (Argued April 29, 1932;
    decided May 13, 1932.)

      Eugene R. Hurley for appellant.

      Walter H. Pollak, Carl S. Stern and Raymond P. McNulty for intervenor-respondent.
   Order affirmed, with costs; no opinion. .

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


text:
    In the Matter of the City of Utica, Respondent, against The George F. Weaver Sons Company et al., Appellants.
    (Argued April 29, 1932;
    decided May 13, 1932.)

      Irving K. Baxter for appellants.

      J. Herbert Gilroy, Corporation Counsel (Anthony J. Sacco of counsel), for respondent.
   Appeal dismissed, with costs, on the ground that the order appealed from is not a final order; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Danahy Packing Company, Respondent.
    (Argued April 29, 1932;
    decided May 13, 1932.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Thomas F. Myers of counsel), for appellant.

      John W. Ryan for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    Winifred Ryan, Appellant, v. The City of New York, Respondent.
    (Submitted April 29, 1932;
    decided May 13, 1932.)

      John M. Wilson for appellant.

      Arthur J. W. Hilly, Corporation Counsel (Joseph P. Reilly and James E. O’Reilly of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward H. Titus, Respondent, v. Lou C. Wallick, Appellant.
    (Submitted May 9, 1932;
    decided May 13, 1932.)

      Thomas I. Sheridan for motion.

      James F. Donnelly opposed.
   Motion denied, with ten dollars costs.


text:
    Ivan Selig, Respondent, v. Edwin F. Werring et al., Individually and as Copartners under the Firm Name of Schiff, Werring & Co., Appellants, Impleaded with Another.
    (Submitted May 9, 1932;
    decided May 13, 1932.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 537.)


text:
    James W. McCaffrey, Appellant, v. The State of New York, Respondent.
    (Submitted May 13, 1932;
    decided May 13, 1932.)
   Motion for reargument denied and motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to read: “ Judgment modified so as to grant a new trial with costs to abide the event, and as so modified, affirmed.” (See 259 N. Y. 159.)


text:
    In the Matter of Irving Trust Company, as Trustee of Times Square Auto Supply Co., Inc., Respondent. Joseph A. Broderick, Superintendent of Banks of the State of New York, as Liquidator of the Bank of United States, Appellant.
    (Argued May 3, 1932;
    decided June 1, 1932.)

      Joseph F. Hunter, Warren C. Fielding, Arthur Ofner and Carl J. Austrian for appellant.

      Samuel M. Chapin and Monroe Chapin for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Henry Hirschberg et al., Appellants. Franklin A. Schriver, District Attorney of Orange County, Respondent.
    (Argued April 25, 1932;
    decided June 1, 1932.)

      Henry Hirschberg for appellants.

      Franklin A. Schriver, District Attorney, for respondent.
   Appeal dismissed; 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. Louis Katoff, Appellant.
    (Argued April 27, 1932;
    decided June 1, 1932.)

      James A. Sullivan and Robert A. Dillon for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Luigi Raffa, Appellant.
    (Argued April 27, 1932;
    decided June 1, 1932.)

      William P. Thomas and Michael N. Delagi for appellant.

      Charles B. McLaughlin, District Attorney (Sol Boneparth, Herman J. Fliederblum and Sylvester Ryan of counsel), for respondent.
   Judgment of conviction affirmed; 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. Alfred Corbellini and Alfred Cozzi, Appellants.
    (Argued April 28, 1932;
    decided June 1, 1932.)

      Robert E. Manley and Joseph G. Cohen for Alfred Corbellini, appellant.

      John D. Lindsay and Frank R. Galgano for Alfred Cozzi, appellant.

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
   Judgment of conviction affirmed as to each defendant; 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 Mayo, Appellant.
    (Argued May 2, 1932;
    decided June 1, 1932.)

      Louis Susman, J. M. Cohen and William Lyman for appellant.

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

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


text:
    Frank J. Donato et al., Appellants, v. John McNee et al., Defendants, and Louis Sylvestro et al., Respondents.
    (Submitted May 2, 1932;
    decided June 1, 1932.)

      Irving G. Kennedy and John S. Sickels for appellants.

      Joseph F. Haher for Louis Sylvestro and Josephine Sylvestro, respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    A. Schuyler Bussing, Appellant, v. Lowell Film Productions, Inc., Respondent.
    (Argued May 2, 1932;
    decided June 1, 1932.)

      Tobias A. Keppler and Martin J. Desmoni for appellant.

      Alfred D. Dennison for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thyrza B. F. Fowler et al., Respondents, v. The State of New York, Appellant; George Maure, Respondent, v. The State of New York, Appellant.
    (Claim No. 18339.)
    (Claim No. 18456.)
    (Argued May 2, 1932;
    decided June 1, 1932.)

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

      John T. Norton for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Kenneth S. Clark, Respondent, v. Standard Rock Asphalt Corporation, Appellant.
    (Argued May 3, 1932;
    decided June 1, 1932.)

      J. Alvin Van Bergh and Earl J. Garey for appellant.

      Harold Harper and Murray F. Johnson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Adolph Goldberg, Respondent, v. Berrans Realty Company et al., Appellants.
    (Argued May 3, 1932;
    decided June 1, 1932.)

      Abraham L. Pomerantz for Berrans Realty Company, appellant.

      Vincent A. O’Connor for The Ætna Casualty and Surety Company, appellant.

      William Walzer and Raymond Gitlin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Village of Mill Neck, Appellant, v. Walter J. Nolan, Respondent.
    (Argued May 4, 1932;
    decided June 1, 1932.)

      David C. Bennett and William T. McCoun for appellant.

      Dominic B. Griffin for respondent.
   Judgment affirmed, with costs, on the ground that the zoning ordinance was not adopted in conformity with the provisions of section 178 of the Village Law (Cons. Laws, ch. 64), in that substantial and extensive changes were made by the Board of Trustees subsequent to the public hearing held upon the proposed ordinance without any new public hearing upon such changes and amendments; no opinion.

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


text:
    Hans Jacobsen, Respondent, v. The Babcock & Wilcox Company, Appellant.
    (Argued May 4, 1932;
    decided June 1, 1932.)

      Clarence S. Zipp and E. C. Sherwood for appellant.

      Elias Bernstein and William A. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sarah Redmond, Appellant, v. Clara L. Miller, Respondent, Impleaded with Another.
    (Argued May 4, 1932;
    decided June 1, 1932.)

      William Rooney for appellant.

      William E. Woollard 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. Sidney D. Tait, Appellant.
    (Argued May 4, 1932;
    decided June 1, 1932.)

      Sydney Rosenthal for appellant.

      Thomas C. T. Crain, District Attorney (Felix C. Benvenga and Le Roy Mandle of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Baumann, Appellant.
    (Argued May 9, 1932;
    decided June 1, 1932.)

      Daniel J. O’Sullivan, Edward T. Harrington, Maurice F. Berman and Arthur Hendrick Bernstein 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., Lehman, Kellogg, O’Brien, Hubbs and Crouch, JJ. Not sitting: Crane, J.


text:
    The People of the State of New York, Respondent, v. Paul Vezban, Appellant.
    (Argued May 9, 1932;
    decided June 1, 1932.)

      Rudolph Stand for appellant.

      William F. X. Geoghan, District Attorney (Ralph K. Jacobs of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Roslyn Construction Company, Inc., Respondent, v. Thomas J. Shaw et al., Appellants.
    (Argued May 9, 1932;
    decided June 1, 1932.)

      Arthur C. Mandel for appellants.

      Edward A. Coleman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Michael Kammer et al., Respondents, v. Matthew Lutz et al., Appellants.
    (Argued May 9, 1932;
    decided June 1, 1932.)

      Ray M. Stanley for appellants.

      Marvin M. Marcus, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dominick Concolino, an Infant, by Frances Concolino, His Guardian ad Litem, Appellant, v. Carl G. Kunzelman, Defendant, and Thomas Dixon, Respondent.
    (Argued May 10, 1932;
    decided June 1, 1932.)

      Edward O. Burke for appellant.

      Gordon H. Mahley and Henry R. Follett 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:
    Irene Greene, Respondent, v. Jacob Philips, Appellant.
    (Argued May 11, 1932;
    decided June 1, 1932.)

      Albert DeRoode and David Goldstein for appellant.

      Nathan Hubbard Stone and Joseph Spencer for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    Walter Janvier, Inc., Respondent, v. Walter C. Baker, Defendant, and Henry A. Tremaine, Appellant. Walter Janvier, Inc., Respondent, v. The Clinical Laboratories Company, Appellant.
    (Argued May 12, 1932;
    decided June 1, 1932.)

      Harold R. Medina, F. A. W. Ireland, William F. McNulty and G. Kenneth Brown for appellants.

      Jacob J. Aronson and Henry L. Schaefer for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    New York Dock Company, Appellant, v. New York and Cuba Mail Steamship Company, Respondent.
    (Argued May 12, 1932;
    decided June 1, 1932.)

      Alexander J. Feild and Charles E. Hotchkiss for appellant.

      Eugene Underwood and Chauncey I. Clark for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Caruso, Respondent, v. Luigi Caruso, Appellant.
    (Argued May 12, 1932;
    decided June 1, 1932.)

      Louis Jay and Maxwell E. Blinder for appellant.

      Edwin I. Becker, Michael A. Coviello and John Palmieri for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    M. Salimoff & Company et al., Appellants, v. Vacuum Oil Company Respondent.
    (Argued April 25, 1932;
    decided June 1, 1932.)

      J. Alvin Van Bergh and Eugene Eisenmann for appellants.

      A. Donald MacKinnon and William Dean Embree for respondent.
   Order of Appellate Division and that of Special Term reversed, with costs in all courts, and motion requiring each plaintiff to furnish security for costs denied, with ten dollars costs of the motion. First question certified answered in the affirmative, and second, third and fourth questions certified answered in the negative on authority of Salimoff & Co. v. Standard Oil Company of New York (259 N. Y. 219). No opinion.

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


author: O’Brien, J. (dissenting in part).

text:
    Frances E. James, by Francis H. James, Her Guardian ad Litem, Appellant and Respondent, v. Delaware, Lackawanna and Western Railroad Company, Defendant, Town of Cortlandville, Respondent, and County of Cortland, Appellant.
    (Argued April 27, 1932;
    decided June 1, 1932.)

      James C. Tormey for plaintiff, appellant and respondent.

      Charles H. Gardner for County of Cortland, defendant-appellant.

      Levi R. Chase for Town of Cortlandville, defendant-respondent.
   Judgments affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, Kellogg, Hubbs and Crouch, JJ. O’Brien, J., concurs in part and dissents in part in the following memorandum:

O’Brien, J. (dissenting in part).

I agree that the county was properly held. This part of the judgment must rest upon the theory that, irrespective of any duty to repair, the county was guilty affirmatively of negligence in demolishing the railing. The part of the judgment at Trial Term whereby liability for failure to repair is imputed to the town, seems to me also correct. As I read the law, the statutory duty to repair was cast on the town rather than the county or the State. (Railroad Law; Cons. Laws, ch. 49, § 93.)

The Legislature has drawn a clear distinction between highways and bridges. (Paddleford v. State, 192_App. Div. 870.) The railing on this bridge is part of the roadway of the bridge (Burchard v. Payne, 197 App. Div. 829; affd., 233 N. Y. 671), but, since the span of the- bridge exceeds five feet and the pavement thereon is not separated from the structure by an earth fill, the roadway on the bridge, by virtue of the definition contained in the Highway Law (Cons. Laws, ch. 25, § 2, subd. 4), is no part of a highway. Even if it were a highway, it could not constitute any part of the State highway extending from Homer to Cortland (Highway Law, § 120, route 10) because, under no conception can the roadway on the bridge be held to have been improved at the sole expense of the State. (Id. § 3, subd. 1; § 120.) The bridge, including the roadway thereon, was built by the railroad company under the compulsion of section 91 of the Railroad Law. Although the State as well as the town, pursuant to section 94, subdivision 3, of the Railroad Law, bore a proportion of the cost of construction as part of a grade crossing elimination, the railroad in no respect acted as agent of the State. (Long Island R. R. Co. v. Dept. of Labor, 256 N. Y. 498, 508, 509.) The roadway over this bridge was, therefore, improved by the railroad under lawful coercion and not by the State. On these facts the first sentence of section 93 of the Railroad Law imposes upon the town the responsibility for maintenance and repair. If, however, the facts had been different and the roadway had been improved by the State instead of the railroad, the liability to keep it in repair would, under the last sentence in section 93, have been transferred to the State. In that event, the provisions of the first sentence in section 170 of the Highway Law excluding maintenance by the State of bridges having a span of more than five feet would yield to the provisions in the last sentence of section 93 of the Railroad Law. After the construction of the bridge and its roadway by the railroad company, the State itself did improve the approaches at each end of the bridge and thereby assumed the duty, pursuant to the last sentence in section 93 of the Railroad Law, for the maintenance and repair of the approaches only. Section 176 of the Highway Law goes no further than to designate the season of the year when the State accepts liability for defects in State and county highways. Since the roadway on this bridge is not a part of either kind of highway, section 176 has no application to this case. The Legislature has in varying instances carved out divisions of authority and responsibility in relation to repair and maintenance of highways and bridges. The reasons may not be entirely apparent but to me the fact seems plain. It is for the Legislature, if it so desires, to lighten the present financial burdens of the towns and to eliminate or in any event to reduce the present inconvenience and irregularity in administration.

I vote to modify the judgment by reinstating the verdict against defendant Town of Cortlandville, but concur otherwise for affirmance.


text:
    Armand Schmoll, Inc., Respondent, v. Commonwealth & Dominion Line, Ltd., Appellant.
    (Argued May 11, 1932;
    decided June 2, 1932.)

      L. deGrove Potter, John J. Heckman and Joseph W. Whelan for appellant.

      Neil P. Cullom and James E. Freehill for respondent.
   Judgment affirmed, with costs. Held, that while it was error to place the burden of proving seaworthiness upon the defendant, yet this ruling was harmless in view of all the evidence. No opinion.

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


text:
    Ford Motor Company, Respondent, v. Prince Line, Ltd., Appellant.
    (Argued May 11, 1932;
    decided June 2, 1932.)

      L. deGrove Potter, Charles R. Hickox and John J. Heckman for appellant.

      G. Noyes Slayton and Harry D. Thirkield for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paul Bicjen, Appellant, v. Frank Vassi et al., Copartners under the Firm Name of Lucas, Vassi & Indelicato, et al., Respondents.
    (Argued May 12, 1932;
    decided June 2, 1932.)

      Frederick M. Schlater and H. Walter Reynolds for appellant.

      Sydney Weitzer for Frank Vassi et al., respondents.

      Leo C. Weiler, Thomas E. Nolan, Max Ash and William E. Lowther for Realty Construction Corporation et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Poster, Appellant, v. National Surety Company, Respondent.
    (Argued May 12, 1932;
    decided June 2, 1932.)

      Benjamin Barondess for appellant.

      Jacob J. Alexander, Robert H. Spelman and John F. Foley 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 Claim of Samuel Lent, Respondent, against 850 Seventh Avenue Corporation, Appellant, and London and Lancashire Indemnity Company of America, Respondent. The State Industrial Board, Respondent.
    (Submitted May 13, 1932;
    decided June 2, 1932.)

      George A. Ferris and Alexander D. Diamond for appellant.

      Fred H. Rees for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Morris Magid, Respondent, v. The City of New York et al., Appellants.
    (Submitted May 13, 1932;
    decided June 2, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (Milton I. Hauser, Louis Diamant and J. Joseph Lilly of counsel), for The City of New York, appellant.

      Frank M. Wilcox and Clarence E. Mellen for Garhill Realty Corporation, appellant.

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

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


text:
    Flora S. Evarts, as Administratrix of the Estate of Grant K. Evarts, Deceased, Appellant, v. S. Howes Company, Inc., Respondent.
    (Argued May 13, 1932;
    decided June 2, 1932.)

      William S. Stearns for appellant.

      Percy R. Smith and Harold J. Adams 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:
    The People of the State of New York ex rel. Corporation of Yaddo, Respondent, v. Hiram J. Freeman, as Commissioner of Accounts and Assessor of the City of Saratoga Springs, et al., Appellants.
    (Argued May 13, 1932;
    decided June 2, 1932.)

      Carleton J. King for appellants.

      Spencer B. Eddy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James Elgar (a Corporation), Respondent, v. Maryland Casualty Company, Appellant, and Marcy Place Holding Corporation et al., Respondents.
    (Submitted May 31, 1932;
    decided June 2, 1932.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that costs are awarded to each of the respondents. (See 259 N. Y. 527.)


author: Crane, J. (dissenting).

text:
    Continental Leather Company, Appellant, v. Liverpool, Brazil and River Plate Steam Navigation Company, Ltd., Defendant, and Lamport & Holt, Ltd., Respondent.
    (Argued May 11, 1932;
    decided June 7, 1932.)

      Neil P. Cullom and James E. Freehill for appellant.

      G. Noyes Slayton for respondent.
   Judgment affirmed, with costs; no opinion.

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

Crane, J. (dissenting).

This court, recently, in two cases (South & Central American Commercial Co. v. Panama R. R. Co., 237 N. Y. 287, and Aron & Co. v. Panama R. R. Co., 255 N. Y. 513), has had occasion to pass upon the provision in the bill of lading limiting the time within which to commence an action against the carrier for damages sustained through its negligence. In the first case, the bill of lading required notice of the claim to be' given within sixty days after knowledge of the loss, and action to be brought within sixty days thereafter. We held this limitation unfair and unreasonable. In the second case, we held, in the absence of any reason or excuse for the delay, that a period of six months after the arrival of the shipment at destination was enforceable.

The rationale of these decisions is that the period of time within which an action must be brought against the carrier for negligence should be fair and reasonable, in view of the circumstances of each particular case. Even six months or longer might not be sufficient time, under certain conditions. This court did not attempt to say that a definite period of time was reasonable under any and all conditions. The circumstances, not the time, must be the determining factor.

In the Commercial Co. case attention was called to the Federal statutes fixing a two-year limitation in cases to which the statutes apply, while in the Aron case mention was made of the fact that thirty-two nations have adopted a statute which provides that an action to recover damages under a shipping contract must be commenced within one year. We strongly intimated in the former case that these statutes gave some indication of what might be considered fair and reasonable, even in shipments not governed by them. Public policy, after all, is to be found very largely in the acts of Congress and State Legislatures. Referring to the Interstate Commerce Act (§ 15); United States Shipping Board Act (§ 18), this court said, in the Commercial Co. case: “ We think a new public policy, a new conception of what is just and reasonable in these contractual limitations, is established by this act, reinforced, as it is by the Transportation Act, which followed in 1920. * * * We do not say that carriers not subject to these acts must adhere to the standards thus established with literal fidelity. * * * We say, however, that there is a duty of approximate or reasonable conformity, a conformity so great as to escape flagrant disavowal of the conception of reasonable opportunity reflected in the will of Congress ” (p. 291). And in the Aron case we specifically limited our ruling as to the six months’ limitation, to the facts of that case, by saying: “We do not attempt to fix a standard or establish any definite time which shall be deemed reasonable under all conditions. We hold that under the facts and circumstances of this case six months was a reasonable limitation ” (p. 519).

What are the facts before us in this case, upon which we must determine whether the consignee had a reasonable and fair opportunity under the bill of lading to bring this action for negligence? The bill of lading contains the following clause: Suit on any claim hereunder or in respect of the goods must be begun within six (6) months after delivery of the goods to the carrier, or recovery shall be barred, notwithstanding the carrier may be a non-resident or a foreign corporation.” The merchandise was delivered to the carrier at Montevideo on January 15, 1924, and the ship arrived at New York on February 23, 1924, and commenced to discharge two days later. Here were six weeks taken out of the six months in which the carrier knew that the shipper would have no opportunity to know anything about the condition of the cargo. The time commenced to run with the sailing of the ship from South America. The ship might take six weeks, or, through unavoidable delay, even longer. With each day or week of the prolonged voyage, the time limitation was shortening.

The merchandise consisted of hides, cured and salted, prior to delivery, which, when they arrived at the port of New York, were found to be damaged. A survey of the amount of the damage was not completed until March 13, 1924, when a claim was transmitted to the defendant the following day. This left the consignee with only four months within which to bring action against the carrier, which would only be justified when the facts were ascertained, showing that the damage was due to the negligence of the carrier. To ascertain these facts required communication by mail with the shippers at Montevideo.

The evidence shows that it took from two to three months to get a letter to Montevideo and a reply back to New York. All the evidence regarding the condition of the hides as they were put aboard the ship was to be procured from the shipper and his witnesses at Montevideo. By the time the consignee here had facts sufficient to enable it and its lawyers to act intelligently, the contract limitation within which to bring an action had nearly expired. There might be a few weeks thereafter in which it could act. Such a limitation has not even the semblance of fairness. No lawyer of any standing would bring an action against the navigation company without having at least a reasonable basis for its maintenance. The courts should not, by such short limitations, encourage hasty and unfounded litigation. Some reasonable analogy there must be between the time within which to bring actions under the Interstate Commerce Act or the Transportation Act (United States Shipping Board Act, 39 St. p. 728, ch. 451, § 18) and actions against other sea carriers from foreign ports.

The limitation in this bill of lading was, therefore, unreasonable and unfair and without effect. In consequence thereof, there was no limitation upon the plaintiff’s right to begin its action except the Statute of Limitations of this State. The court has no power to substitute what it considers to be a reasonable time for that which the parties have failed to establish by their contract. Limitations are fixed by statute or else by contract, in the absence of such acts or conduct as amount to an estoppel.

As this action was dismissed at the end of the plaintiff’s case solely upon the ground that it was not brought within the contract time, the judgment should be reversed, and a new trial ordered, with costs to abide the event.


text:
    Oscar Powers, as Trustee in Bankruptcy of Elias Putterman et al., Individually and as Copartners under the Firm Name of Modern Brass Novelty Company, Appellant, v. Finance Company of America at Baltimore, Respondent.
    (Argued May 12, 1932;
    decided June 7, 1932.)

      Copal Mintz for appellant.

      Milton P. Kupfer and Eli S. Silberfeld for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert L. Demarest et al., Appellants, v. Westchester Fire Insurance Company et al., Respondents.
    (Argued May 31, 1932;
    decided June 7, 1932.)

      Frederick T. Case for motion.

      William Otis Badger, Jr., opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Elsie J. Hassall, Respondent, v. Christopher J. Moore et al., Appellants.
    (Argued May 31, 1932;
    decided June 7, 1932.)

      Philip Scharf for motion.

      Martin Conboy opposed.
   Motion denied, with ten dollars costs.


text:
    Arthur M. Lee, Respondent, v. Stanley P. Woodward, Appellant.
    (Submitted May 31, 1932;
    decided June 7, 1932.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 149.)


text:
    Margaret L. Donahue, as Committee of the Property of Peter Donahue, an Incompetent Person, Appellant, v. New York Life Insurance Company, Respondent.
    (Submitted May 31, 1932;
    decided June 7, 1932.)
   Motions for reargument denied, without costs. (See 259 N. Y. 98.)


text:
    In the Matter of the Accounting of Frederick R. Ryan, as Ancillary Executor of Patrick J. McMoran, Deceased, Respondent. Anne E. Herron, Appellant; William Webber et al., Respondents.
    (Submitted May 31, 1932;
    decided June 7, 1932.)

      Frederick R. Ryan for motion.

      Lawrence R. Condon opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Francis W. Kelly et al., Doing Business under the Name of Edward F. Kelly, Respondents, v. Louis Leavitt, Appellant.
    (Submitted May 31, 1932;
    decided June 7, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 542.)


text:
    Gotham Music Service, Inc., et al., Respondents, v. Denton and Haskins Music Publishing Co., Inc., Appellant.
    (Submitted May 31, 1932;
    decided June 7, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 86.)


text:
    Pierre L. Willis, Respondent, v. S. M. H. Corporation, Appellant.
    (Submitted May 31, 1932;
    decided June 7, 1932.)
   Motion for reargument denied, with "ten dollars costs and necessary printing disbursements. (See 259 N. Y. 144.)


text:
    In the Matter of Bickford’s, Inc., Appellant, Joseph A. Broderick, Superintendent of Banks, in Charge of Liquidation of The Bank of United States, Respondent.
    (Argued May 31, 1932;
    decided June 14, 1932.)

      David B. Stillman and Herbert M. Greenberger for appellant.

      Carl J. Austrian, Arthur Ofner, Warren C. Fielding and Harold N. Cohen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Benjamin F. Maged et al., Copartners, under the Firm Name of Maged & Friedland, Appellants. Joseph A. Broderick, Superintendent of Banks, in Charge of Liquidation of The Bank of United States, Respondent.
    (Argued May 31, 1932;
    decided June 14, 1932.)

      David B. Friedland and I. Louis Winokur for appellants.

      Arthur Ofner, Warren C. Fielding, Harold N. Cohen and Carl J. Austrian for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Rae Ranzal, Appellant. Clinton Trust Company et al., Respondents.
    (Argued May 31, 1932;
    decided June 14, 1932.)

      Meyer Kraushaar and Jesse Climenko for appellant.

      Mark Hyman for Clinton Trust Company, respondent.

      George S. Elpern, Arthur Ofner, Warren C. Fielding and Carl J. Austrian for The Bank of United States, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Town of North Hempstead, Respondent, v. Wesley Harper et al., Appellants.
    (Argued May 31, 1932;
    decided June 14, 1932.)

      A. Gordon Murray for appellants.

      M. Linn Bruce, Raymond Ballantine and Le Roy G. Edwards for respondent.
   Order affirmed, with costs, and the question certified answered “no;” no opinion.

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


author: Per Curiam.

text:
    Mildred V. S. Gwynne, Appellant, v. Board of Education of Union Free School District No. 3, in the Town of Huntington, et al., Respondents.
    (Submitted June 20, 1932;
    decided June 21, 1932.)
   Per Curiam.

The defendants contend that the affirmance by the court of the judgment of the Trial Term results in a judgment annulling the consolidation proceedings as to all the world. They seek to have the remittitur amended so as to limit the effect of our decision to the rights of the plaintiff. This is unnecessary. The consolidation was held to be a nullity as to the plaintiff only. Nothing more was necessary to the decision or decided by the trial court.

Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    The People of the State of New York, Respondent, v. Louis Roper, Appellant.
    (Submitted June 13, 1932;
    decided June 21, 1932.)
   Per Curiam.

Sections 93 and 94 of the General Construction Law (Cons. Laws, ch. 22) have no application here. They provide merely a principle of construction to be applied in determining the scope of legislation which expressly or impliedly repeals earlier statutes. In the absence of evidence of contrary intent such legislation is not to be given retroactive effect. (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570.) They apply with special force to statutes which otherwise would be ex post facto or would deprive persons of substantial rights. Here the Legislature has reduced the maximum sentence which the court might impose upon conviction for robbery in the first degree. Such statutes have never been regarded as ex post facto laws. They are applicable to offenses previously committed. (See People v. Hayes, 140 N. Y. 484.) Many circumstances point unmistakably to the conclusion that such was the legislative intent here.

Motion denied.


text:
    In the Matter of Upper Hudson Rye Flour Mills, Inc., Respondent. Joseph A. Broderick, Superintendent of Banks of the State of New York, in Charge of the Liquidation of The Bank of United States, Appellant.
    (Argued May 31, 1932;
    decided June 21, 1932.)

      Harold N. Cohen, Arthur Ofner, Warren C. Fielding and Carl J. Austrian for appellant.

      Shirley Moore and Jean Fitzsimmons for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Ida M. Hall, Deceased. Emma L. Lewis, Appellant; Samuel C. Hall et al., Respondents.
    (Argued June 1, 1932;
    decided June 21, 1932.)

      Bruce R. Tuttle and Nathan A. Smyth for appellant.

      John L. Fray for Samuel C. Hall et al., respondents.

      Egbert C. Everest for William H. Sholes et al., respondents.
   Order affirmed, with costs, payable out of the estate, on the authority of Hopkins v. Hopkins (236 N. Y. 545); no opinion.

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


text:
    The People of the State of New York ex rel. New York and Albany Lighterage Company, Appellant, against Thomas M. Lynch et al., as Tax Commissioners of the State of New York, Respondents.
    (Submitted June 1, 1932;
    decided June 21, 1932.)

      Winifred Sullivan for appellant.

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown 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 Elimination of the Grade Crossing of the Wicopee-Beekman County Highway, No. 627, over the Tracks of The New York, New Haven and Hartford Railroad Company. Public Service Commission et al., Appellants; The New York, New Haven and Hartford Railroad Company, Respondent.
    (Argued June 1, 1932;
    decided June 21, 1932.)

      Harry Myron Chamberlain and Charles G. Blakeslee for Public Service Commission, appellant.

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for State Department of Public Works, appellant.

      Madison G. Gonterman and Gilbert N. Reed for respondent.
   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 Charles Keller, Respondent, against Elmer Sherwood, Respondent, and Lumber Mutual Insurance Company of New York, Appellant. The State Industrial Board, Respondent.
    (Argued June 1, 1932;
    decided June 21, 1932.)

      Jeremiah F. Connor and Dickinson S. Talley for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin and Roy Wiedersum of counsel), for The State Industrial Board, respondent.

      Arthur R. Ellison for Elmer Sherwood, respondent.
   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 John O. Johnson, Respondent, against Roosevelt Memorial Association, Inc., et al., Appellants. The State Industrial Board, Respondent.
    (Argued June 1, 1932;
    decided June 21, 1932.)

      Floyd E. Coursen and Frank L. Ward for appellants.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for The State Industrial Board, respondent.

      Edward Robinson, Jr., for John 0. Johnson, respondent.
   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 the Estate of Nick Mollick, Deceased, Respondent, against Modern Roofing Company, Inc., Respondent, and Federal Surety Company, Appellant. The State Industrial Board, Respondent.
    (Submitted June 1, 1932;
    decided June 21, 1932.)

      Clarence E. Mellen for appellant.

      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:
    In the Matter of the Claim of Edward Hirschman Respondent, against E. W. Edwards & Son et al., Appellants. The State Industrial Board, Respondent.
    (Argued June 1, 1932;
    decided June 21, 1932.)

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    City of New York, Respondent, v. Louis Cohen, Appellant.
    (Argued June 2, 1932;
    decided June 21, 1932.)

      Leo Guzik and Horace London for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly and Arthur H. Kerns 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 Accounting of Margaret N. Taylor et al., as Executors of William J. Taylor, Deceased, Appellants. Theron H. Sammis, as Special Guardian of Catherine M. Taylor, Appellant; W. Russell Osborn, Respondent.
    (Argued June 2, 1932;
    decided June 21, 1932.)

      George A. Spiegelberg and Harry W. Mack for Margaret N. Taylor et al., appellants

      Theron H. Sammis, as special guardian for Catherine M. Taylor, appellant.

      W. Russell Osborn, William Beers Crowell and C. Murray Kavanagh for respondent.
   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 Application of The City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Opening and Extending of West Two Hundred and Twenty-ninth Street in the Borough of The Bronx. Elizabeth Steinmetz, Respondent.
    (Argued June 2, 1932;
    decided June 21, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (Edward A. Weingarten, Joel J. Squier, Joseph F. Mulqueen, Jr., and William B. R. Faber of counsel), for appellant.

      Harry H. Chambers and Harry B. Chambers for respondent.
   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 Application of Alexander & Reid Company et al., Appellants. Irving Trust Company, as Trustee, et al., Respondents; In the Matter of the Application of Alexander & Reid Company et al. Libby’s Hotel Corporation et al., Appellants; Irving Trust Company, as Trustee, et al., Respondents.
    (Argued June 3, 1932;
    decided June 21, 1932.)

      Charles L. Craig and Benjamin Bernstein for appellants.

      Clarence J. Shearn for Charles E. Hughes, Jr., as ancillary receiver of American Bond and Mortgage Company, Charles C. Moore, individually and as trustee, and American Mortgage Loan Company, respondents.

      William O. Robertson for Irving Trust Company, respondent.
   Order in each proceeding affirmed, with costs; no opinion.

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


text:
    George E. Payne, Respondent, v. The City of New York, Appellant.
    (Submitted June 3, 1932;
    decided June 21, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (Edwin J. Talley, John E. Duffy and Alfred D. Jahr of counsel), for appellant.

      Clarence Edwards for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Genesee Lumber and Coal Company, Inc., Respondent, v. Angelo Bonarrigo et al., Respondents, and William J. Goade et al., Copartners under the Firm Name of Goade & Flohr, Appellants.
    (Submitted June 3, 1932;
    decided June 21, 1932.)

      George H. Day and George W. Watson for appellants.

      S. Fay Carr for Genesee Lumber and Coal Company, Inc., respondent.

      Newell K. Cone for Angelo Bonarrigo and Mary Bonarrigo, respondents.

      James A. Le Seur for Archie J. Case, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helen E. Grant, Appellant, v. Abraham Zipern et al., Copartners under the Firm Name of A. Zipern and I. Robins, Respondents, Impleaded with Another.
    (Argued June 3, 1932;
    decided June 21, 1932.)

      William, Dike Reed, Orrin Clark, Paul T. Kammerer, Jr., and Robert C. Moore for appellant.

      Theodore H. Lord, James B. Henney and Daniel R. Harvey 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, Appellant, v. Clarence A. Legg and Henry B. Stapler, Respondents.
    (Argued June 6, 1932;
    decided June 21, 1932.)

      Thomas C. T. Crain, District Attorney (John C. McDermott, of counsel), for appellant.

      Otho S. Bowling and Robert H. Elder for respondents.
   Judgment affirmed; no opinion.

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


text:
    Herbert E. Davidson, Appellant, v. Library Bureau, Respondent.
    (Argued June 6, 1932;
    decided June 21, 1932.)

      Carl A. Mead and William Harvey Reeves for appellant.

      Timothy Newell Pfeiffer and Schuyler William Livingston for respondent.
   Judgment of Appellate Division modified by directing judgment for plaintiff in the sum of $3,150, with interest from January 1, 1927, and as so modified affirmed, with costs in this court to appellant; no opinion.

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


text:
    Lura A. Burnham, Respondent, v. John J. Bennett, Jr., as Attorney-General of the State of New York, et al., Appellants.
    (Argued June 6, 1932;
    decided June 21, 1932.)

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

      Robert W. Fisher for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Knickerbocker Oil Corporation, Respondent, v. Richfield Oil Corporation of New York, Appellant.
    (Argued June 6, 1932;
    decided June 21, 1932.)

      Horace R. Lamb and George M. Billings for appellant.

      John L. Bernstein and Harry Greenspan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ida M. Tooley, as Administratrix of the Estate of Arthur A. Tooley, Deceased, Respondent, v. The State of New York, Appellant.
    (Claim No. 21709.)
    (Argued June 6, 1932;
    decided June 21, 1932.)

      John J. Bennett, Jr., Attorney-General (J. Stanley Carter of counsel), for appellant.

      Bayard J. Stedman 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:
    Charles Berlin, Respondent, v. Sea Breeze Foundation, Inc., Appellant, Impleaded with Others.
    (Argued June 7, 1932;
    decided June 21, 1932.)

      Emil Weitzner, Samuel H. Kaufman and Sidney Friedman for appellant.

      Clarence G. Bachrach, Herman S. Bachrach and Samuel S. Bisgyer for Charles Berlin, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ralph Demas, as Administrator of the Estate of Clarence Demas, Deceased, Respondent, v. John Wisnies, Appellant.
    (Argued June 7, 1932;
    decided June 21, 1932.)

      H. Douglass Van Duser for appellant.

      Harold Jacobs, William H. Harding and Saul Kauffman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John B. Warnock, Appellant, v. Globe and Rutgers Fire Insurance Company of the City of New York, Respondent.
    (Argued June 7, 1932;
    decided June 21, 1932.)

      Harold G. Aron, William Cattron Rigby and David A. Buckley, Jr., for appellant.

      Arthur W. Clement and Henry J. Bogatko for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William M. Halsted et al., Respondents, v. Globe Indemnity Company, Appellant, and Peter G. Gerry et al., as Executors of Elbridge T. Gerry, Deceased, Respondents.
    (Submitted June 13, 1932;
    decided June 21, 1932.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 258 N. Y. 176.)


text:
    Ida Rothman, Respondent, v. The City of New York, Appellant.
    (Submitted June 13, 1932;
    decided June 21, 1932.)

      Julius Blumenfeld for motion.

      Arthur J. W. Hilly, Corporation Counsel (Vine H. Smith and J. Joseph Lilly of counsel), opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Adeline Smith, Respondent, v. Peerless Glass Company, Inc., et al., Appellants. William H. Smith, Respondent, v. Peerless Glass Company, Inc., et al., Appellants.
    (Submitted June 20, 1932;
    decided June 21, 1932.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 259 N. Y. 292.)


text:
    Edward B. C. Sullivan, Appellant, v. Erie Railroad Company, Respondent.
    (Submitted June 20, 1932;
    decided June 21, 1932.)

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


author: Smith, J. Denio, Ch. J.

text:
    Eadie v. Slimmon.
    Terrifying a woman so as nearly to produce hysterics by threats of prosecuting her husband for alleged embezzlement, is such coercion as to avoid a transfer of her separate property thus obtained.
    A policy of insurance to a married woman, made under chapter 80 of 1840, for her benefit and that of her children in case of her death, cannot be transferred so as to divest the interest of the wife or her children.
    Appeal from the Supreme Court. Action to recover $2,000, insured by the United States Life Insurance Company of the city of New York, upon the life of the plaintiff’s husband. He died in June, 1859. The insurers deposited the money in court, and the contest was between Mrs. Eadie and the defendant, Slimmon, who claimed under an assignment from her, which she averred to be void, as having been obtained by coercion.
    The policy bore date May 6, 1852. It recited the payment by Mrs. Eadie of the premium for the first year, and in consideration thereof, and of the like premium, to be paid annually in advance, insured the life of her husband, James M. Eadie, “for the sole use and benefit of the said Jessie Eadie.” The company, by its terms, agreed with Mrs. Eadie, “ her executors, administrators and assigns,” to pay the sum insured to her, her personal representatives or assigns, “ for her sole use; and in case of the death of the said Jessie Eadie before the decease of the said James M. Eadie, the amount of said insurance shall be payable, after her death, to her children, for their use, orto their guardian, if under age.”
    The trial was before Mr. Justice Sobtigham, a jury having been waived. It appeared that, on the evening of April 4, 1857, the defendant, Slimmon, went to the house of Mr. Eadie, with an attorney, a person whom he represented to be a police officer, and another person, and there accused Eadie of having embezzled money while in his employment as a clerk. An altercation ensued between them as to the amount of Sadie’s indebtedness, &c. Slimmon demanded that Eadie should convey to him his house, and cause the policy of insurance upon his life to be assigned to him, in payment or security for the alleged indebtedness. The discussion lasted some hours. Mrs. Eadie was present part of the time, and part of the time was in her bedroom on the floor above. Slimmon threatened that if Eadie would not comply with his demands he should be prosecuted criminally for embezzlement, and stated that he had an officer in attendance for the purpose of taking him to jail. When asked what authority he had, he replied that he would take the responsibility.
    A brother-in-law of Mrs. Eadie called, on his return from an evening meeting. He found her in a state of great excitement and alarm, with the symptoms of incipient hysterics. He intervened in the discussion, at her request, and finally, between 2 and 3 o’clock in the morning, her agitation and distress continuing, he advised her to execute an assignment "of the life policy to Slimmon, and persuaded Mr. Eadie to unite in it .and m an agreement to convey his house. A memorandum in writing of the agreement to assign the policy and convey the house, was drawn up and signed by Mr. and Mrs. Eadie, when Slimmon and his party withdrew. At about 10 o’clock of the succeeding forenoon the formal assignment of the policy was executed by Mrs. Eadie and her husband, and acknowledged by her on a private examination before a commissioner, who was the attorney of Slimmon and had been present in that character at her house the night before.
    The judge found, as matter of fact, that the assignment was procured by threats of imprisonment of. the plaintiff’s husband; that the defendant had been in possession of the policy from the 4th April, 1857, and had paid the premium thereon for two successive years. As a conclusion of law, he held that the assignment of the policy was procured by undue influence and was void as against the plaintiff, and that it was also invalid as having been made as security for a debt alleged to be due from the husband, and not for any consideration going to her or to her separate estate. He ordered judgment for the payment to the defendant of the amount of the two premiums paid by Mm, with interest, and awarding the remainder of the fund to the plaintiff.
    Upon appeal, the Supreme Court, at general term, in the second district, reversed the judgment at special term, as well upon the question of fact as of law, and ordered a new trial. The plaintiff appealed to this court, stipulating for judgment absolute against- her if the order should be affirmed. The first argument was at January term, 1862.

      James L. Campbell, for the appellant.

      Harrison & Waring, for the respondent.
   Smith, J.

As between parties occupying no relation of confidence in or towards each other, or of control, by reason of position, employment or otherwise, undue influence can rarely be imputed without showing - some degree of fear, or threats, or advantage taken of position, or unfair practices or persuasion, involving in some degree a species of fraud. But when any of these elements enter into and constitute part of the circumstances attending a transaction, and controlling the will of a party making a deed or other contract, courts of equity have long been accustomed to give relief. '

Judge Story states the rule, as extracted from and confirmed by many cases, as follows: Courts of equity, he says, relieve a party when he does an act or makes a contract when he is under the influence of extreme terror, or of apprehension short of duress; for in cases of this sort he has no free will, but stands in vinculis.” (2 Story Eq. Jur., § 239.) Circumstances, he says, of extreme necessity or distress of a party, although not accompanied by any direct duress or restraint, may also overcome free agency, and justify the court in setting aside the contract on account of some attending oppression, fraudulent advantage or imposition.

The civil law, from which, in a large degree, we derive the principles which control courts of equity, always sets aside a contract procured by force or fear, or want of liberty in regard to it. (Digest, lib. 4, tit. 2, § 1.) But it was said the party must be intimidated by the apprehension of some serious evil of a present or pressing nature, and such as is capable of making an impression upon a person of courage. But Pothier thinks this rule too strict, and that “ regard should be had to the age, sex and condition of the parties,” and that “ a fear which would not- be deemed sufficient to have influenced a man in the prime of life and of a military character, might be sufficient in respect to a woman or a man in the decline of life.” (Pothier on Obligations, Evans, p. 16, art. 3, §§ 2, 25.)

The rules in regard to the doctrine of undue influence have been asserted in numerous cases in our own courts. (Whelan v. Whelan, 3 Cow., 537; Sears v. Shafer, 1 Barb., 44; S. C., 2 Seld., 272; Howell v. Ransom, 11 Paige, 538; Ellis v. Messervie, id., 467; 5 Denio, 640.)

Within the principle asserted in these cases, the present case presents, I think, an instance of a contract procured by undue influence, if one ever existed. The assignment from the plaintiff to the defendant was most clearly extorted by a species of force, terrorism and coercion which overcame free agency; in which.-fear sought security in concession to threats and to apprehensions of injury. It was made as the only way of escape from a sort of moral duress more distressing than any fear of bodily injury or physical constraint. Mr. White, the plaintiff’s brother-in-law, called at Eadie’s on his return from an evening meeting, and there found the defendant and his counsel, a police officer and another man. This, I should presume, from the season of year (April 4th), could not have been later than 9 o’clock. How long these persons had been there at that time does not appear. The defendant and his counsel were in an upper room, and the officer and the man with him in the parlor below. The witness was, requested by Mrs. Eadie to go into the drawing-room where the defendant was, who was talking very loudly and had some difficulty with her husband.

The witness immediately was informed what the difficulty was. The defendant insisted that Eadie should make over to him his house, and that an assignment of this policy should also be made. “ Eadie refused. Slimmon told him that if he did not, as sure as the sun rose to-morrow he would lodge him in yonder jail; he had an officer down stairs for that purpose.” The plaintiff was sent for and came in immediately. The matter was talked over, and much discussion ensued. Mr. Eadie refused to make an assignment of the policy. Slimmon then renewed his threats to arrest Eadie if the policy was not assigned. Mrs. Eadie became much excited, and appeared about to go into hysterics. In the course of the conversation the plaintiff said to the defendant, “ Mr. Slimmon, surely you won’t take away my husband.” He said “ he was sorry that he was compelled to do it.” Finally this woman consented, and about 3 o’clock the next morning the memorandum of agreement to assign the policy and settle the matter was executed by her and her husband. After about six hours of continuous altercation and angry discussion between Eadie and Slimmon, of excitement-and distress on the part of the plaintiff, the defendant had accomplished "his purpose. Through this period of time the fears and sensibilities of this woman were worked upop by threats of a criminal prosecution which should consign her husband to prison, involving great mortification, shamej distress and ruin to herself and family, and the wife finally yields to the demands of her husband’s creditor.

I can imagine no duress over a man—no constraint over his person, or dread of personal injury—more likely to deprive him of free agency, and induce him to yield to the wishes and demands of another, than the duress over this woman, operating through appeals thus addressed to her pride, her fears, her affections and her sensibilities. A deed executed at such a time, under such circumstances, should be deemed obtained by undue influence, and ought not to stand.

It is conceded in the opinion of the learned judge in the court below, that this must be so if the transaction had been terminated at this interview; but it was held that, inasmuch as the assignment was not then executed, time was given for the plaintiff to become tranquil and act freely, and that the final assignment was not executed till after the lapse of sufficient time for that purpose. The formal assignment was executed about 1 o’clock the next day; but can there be any doubt that when it was so executed the plaintiff was still acting under the influence of the same apprehensions and fears which led her to consent to make the assignment during the night before ? But she had'in fact made a written assignment, valid in law if the policy was assignable by her, if she had made no other. The assignment executed the next day was a mere formality. She was applied to by the same counsel for the defendant who had been present during the previous night.and was familiar with all that then occurred; and, having consented to transfer the policy, and being thus committed to complete the assignment, she obviously knew not how to avoid it, or otherwise to escape from the strait in which sitó was placed. I think the execution of the formal assignment then made should be deemed part and parcel of the original transaction, and to be governed by the same influences and considerations which- controlled her signature of the memorandum a few hours before. The threats of the arrest and imprisonment of her husband were still fresh in her mind, and the same apprehensions for his sake and her own, of shame, mortification and ruin, still stared her in the face. Another consideration, I think, should exert some influence in the decision of this question. Either the accusation which the defendant brought against Eadie was entirely unfounded, or he was seeking to compromise a criminal offence. If he knew that a crime had been committed by Eadie, he had no right to compromise it in this way, and the securities obtained upon such compromise were received as a consideration for compromising a felony, and for that reason were invalid; else the whole of his assertions and threats on the subject were a gross imposture. A majority of my brethren also think that the policy of insurance was not assignable by Mrs. Eadie. The policy was issued and taken under the act of 1840, entitled, “ An act in respect to insurance of lives for the benefit of married women.” We think the intent of the statute was to make these policies a security to the family of any married man, and a provision for their use and benefit, and that this intent would be defeated if they were held to be assignable by the wife like ordinary choses in action belonging to her in her own right as her separate property.

The judgment of the general term should therefore be reversed, and that of the special term affirmed, with costs.

Denio, J., concurred in the judgment on the ground last stated. The other judges concurred on both grounds, except Selden, Ch. J., who , was absent, and Wright, J., who dissented from both the positions of the preceding opinion.

At a subsequent term a motion was made for a re-argument, which was denied, and the following' opinion was thereupon delivered:

Denio, Ch. J.

It may be, as has been argued by the defendant’s counsel, that if the judgment of the general term had been reversed on the facts, a new trial ought to have been awarded, on the ground that the facts upon which we proceeded, as establishing the plaintiff’s right to his money by showing the assignment to have been procured by unlawful means, were not those found by the judge at the circuit. But the other ground of recovery which is referred to at the conclusion of the opinion of Judge Smith, could not have been changed by any evidence which might have been given on a second trial. The only title which, by any possibility, the defendant could have to this money, must be founded upon the assignment which the plaintiff had executed to him. If that assignment was invalid for any cause, the defendant could not make title to this money under it; and if it was not, in law, assignable, the attempt to assign it was, of course, a void act. It is suggested, on behalf of the defendant, that the question of the legal assignability of the policy was not passed upon and decided at the trial. But we think this is a mistake. The complaint does not notice the assignment, but claims the money by virtue of the policy and the happening of the event upon which the insurance money was payable. It does state that the defendant claims that the money was payable to him, but does not state the grounds of his claim. The defendant, in his answer, then sets up the assignment as the foundation of his title to the money. Thus the validity of the assignment becomes the only question m the case. On the trial it was agreed that the pleadings should be amended so as to conform to the proof of the respective parties.

When the defendant offered the assignment in evidence, the plaintiff, among other objections, insisted that the policy, being for the benefit of a married woman, was not assignable to a third person for his benefit. This and his other objections were overruled, and the plaintiff’s counsel excepted. The decision of the judge finally turned upon questions of fact, namely, the improper practices of the defendant in obtaining its execution. But if it were conceded that this was wrong, still, if the policy was in law unassignable, the plaintiff has in no manner waived that objection. She insisted upon it on the trial, and though she was doubtless content with a judgment in her favor on any ground, she never withdrew from her position that upon this ground in particular she, and not the defendant, was entitled to this money. By the judgment of the general term she has been effectually deprived of the benefit of this objection. If it is a valid one, the judgment is erroneous and we ought to reverse it. It is no answer to this to say that the judge at the special term did not go upon this ground, for it lies at the foundation of the action. . The fact upon which it rested was unquestioned and was indisputable, and could not be changed by any evidence which could have been given. It was patent on the face of the policy, and as both parties relied upon that instrument, it is quite impossible that the defendant’s case could be improved in this respect by a new trial.

We see no reason to change the opinion, which we arrived at at the last term, as to the assignable quality of the instrument. By the common law, a person could insure his own life for any sum for which he might choose to pay the premium, and which the insurers would engage to6 insure; but if one desired to insure the life of another, he could only insure the interest which he had in such other life. If he undertook to insure a gross sum, and the contract was not susceptible of a construction which would limit the recovery to the actual damages sustained, the contract would be void under the statutes against betting and gaming. This principle the legislature, by the act of 1840 (Laws, p. 59), relaxed in respect to insurance as effected by a married woman, for any sum which she and the insurance company might see fit to contract for. It was provided that, in the case of her surviving her husband, the amount payable by the terms' of the policy should be payable to her for her own use, free from all claims of the representatives of' her husband or of his creditors. There is another feature in the act which shows that it was an enabling and not a declaratory provision. By the general rules of law a policy on the life of one sustaining only a domestic relationship to the insured, would become inoperative by the death of such insured in the lifetime of cestui que vie; or if it could be considered as existing for any purpose after that event, it would be for the benefit of the personal representatives of the insured; but by this act the contract may be continued in favor of the children of the insured wife after her death. These features distinguish this case from that of an ordinary chose in action belonging to a married woman as her separate estate. The provision is special and peculiar, and looks to a provision for a state of widowhood, and for orphan children; and it would be a violation of the spirit of the provision to hold that a wife,- insured under this act, could sell or traffic with her policy as though it were realized personal property or an ordinary security for money. The motion for a rehearing should be denied.

Motion denied.


author: Gould, J. Allen, J., (dissenting.)

text:
    Kellogg v. Smith.
    The purchaser of a bond, and mortgage who fails to require the production of the bond, is chargeable with notice of any defect in the assignor’s title thereto.
    A mortgage contained a covenant that the same should not be assigned without the written consent of the mortgagor, or a week’s previous notice to 'him. The mortgagee assigned the mortgage without such consent or notice, and delivered the bond and mortgage to the assignee, who did not record the assignment. He again assigned them to a person, who learned by inquiry that the mortgagor had no notice of any previous transfer, and the second assignment was recorded. Sdd, that the title to the securities was in the first assignee.
    Appeal from the Supreme Court. Action for the foreclosure of a mortgage. The contest was between the plaintiff and the defendants Smith and Buckley, personal representatives of Clafflin & Buckley. Each claimed title to the mortgage and the bond for which it stood as security, by assignment from one Bedell, the mortgagee. The mortgage contained a covenant that the mortgagee would not assign the same without the written consent of the mortgagor, or one week’s notice to him of the intention to assign. On the trial before a referee these facts appeared: On the 24th September, 1845, the mortgagee, Bedell, transferred the bond and mortgage to the plaintiff by writing under seal and duly acknowledged, and by delivering the bond and mortgage to the plaintiff, who ever after retained them in his actual possession. The assignment was not recorded.
    Subsequently, in December, 1845, Buckley & Clafflin agreed with Bedell to advance certain moneys upon this mortgage if found to be. a first lien and if a complete transfer-were made. Their counsel examined the title, was satisfied of the priority of the lien, and was ready to take the assignment on- the 30th December, 1845, but required the production of the bond and mortgage. Bedell told him that the bond and mortgage were in the hands of his agent, but the counsel declined to advance the money until they should be delivered to him. The next day was fixed upon to close the business. The next day ■ Bedell gave as an excuse that the papers were locked up in an iron safe, that his agent had the key and had gone out of town to spend New Year’s day, and that the bond and mortgage could not be produced until his return. The counsel ascertained from the mortgagor that he had never consented "to or received notice of an assignment, and Bedell averred that he had made none. Buckley & Clafflin believed the representations, and thereupon instructed their counsel to take the assignment and pay over the money, if, upon search at the clerk’s office, he should find no record of a previous assignment. The counsel made such search, found no assignment recorded, and immediately put on record the assignment to Buckley & Clafflin and paid over the money. The referee (in obedience to a decision at general term in the first district, "setting aside his previous report for the plaintiff, and granting a new trial) ordered judgment dismissing the complaint, which having been affirmed at general term, the plaintiff appealed to this Court.

      William M. Evarts, for the appellant,
    argued, among other things, that the purpose and effect of the recording acts in respect to the assignments of mortgages is merely to protect persons who, in good faith and for value, deal with or give credit to the land—by buying it, or an interest in it, or by taking liens upon it, against unrecorded interfering conveyances of the land or interfering liens upon the land. It is not within the design or effect of these acts to guard purchaser of debts or things in action against defects in their vendor’s title to such debts or things in action. Unrecorded conveyances are declared ineffectual only against purchasers of the same estate, or some portion thereof, whose conveyance shall be first duly recorded. (1 R. S., p. 756, § 1.)
    He also argued that the non-production of the bond and mortgage was sufficient to charge Buckley & Olafflin with the duty of finding the actual possessor, and with notice of the facts which an inquiry, properly pursued, would have disclosed

      William Allen Butler, for the respondents.
   Gould, J.

There can be no doubt that, by the law of this State, the debt is the principal, and the mortgage" a mere security, appurtenant and secondary; and it is on this principle that this court (Kortright v. Cady, 21 N. Y., 343), held that a tender of the debt to the mortgagee or his assignee discharged the land of the lien of the mortgage.

It is also perfectly well settled here, that any legal transfer of the debt (by writing, or delivery, whichever is legally sufficient), draws after it the mortgage; and that, under such circumstances, a mere delivery of the mortgage is a good assignment of it.

In this case, there can be no pretence that (by any law, recording act or otherwise), Buckley & Clafflin procured any title to, or interest in, the bond. And without that, the actual holding of the mortgage (which they had not), would be merely idle; it would be a pledge for nothing, valueless.

The truth is, they saw fit to trust to Bedell’s word, that he owned and possessed the bond (with its collateral security); and upon that trust, they paid him for the bond, and took a written assignment of it and of the pledge that secured it. In looking for the title to the security, they failed to look after the title to the principal; and they must abide the consequences of not taking the proper precaution of requiring the production and delivery of the bond. The recording act cannot be tortured into exercising any power over the sale of the bond.

The judgment should be reversed and a new trial ordered.

Denio, Ch. J., Davies, Wright, Selden and Sutherland, Js., concurred that the non-production of the bond and mortgage was such notice as to put the respondents on inquiry, and deprive them of the protection given by the recording acts to purchasers without notice: some of them thought the recording acts had no application to the case, but the court did not pass on that point.

Allen, J., (dissenting.)

By the Revised Statutes assignments of mortgages are within the provisions, and assignees of mortgages within the protection, of the recording acts. Every “ conveyance of real estate within this State ” is required to be recorded, under the penalty of being absolutely void as against “ any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate.” (1 R. S., p. 756, § 1.) The term “ real estate,” as used in the act, is declared to be co-extensive in meaning with “lands, tenements and hereditaments,” and as embracing all chattels real, “ except leases for terms not exceeding three years.” The term “ purchaser” embraces every person to whom any estate, or interest in real estate, shall be conveyed for a valuable consideration, and every assignee of a mortgage or lease or other conditional estate.” The term “ conveyance” embraces “ every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged, or assigned, or by which the title to any real estate may be affected in law or equity, except last wills, &c. (Id., p. 762, §§ 36-38.) Whatever relation may exist between the mortgage debt and any other evidence or security for it, or whatever the rights of any holder of such evidence or other security in law or equity may be, the recording acts provide for the general security of those dealing with and taking title to a security upon real estate, and, as a part of the policy of the law, which cannot be abrogated except by the legislature, make a mortgage upon real property a “conveyance,” and make, a mortgagee a “ purchaser,” and secure to him, as such, all the benefits - of the recording acts. Whether courts of equity or of law, or even other statutes, regard the mortgagee as having an estate or interest in the land before foreclosure, or the mortgage as anything other than a security for and incident to the debt, passing with it as personalty, is immaterial in the construction of this statute, which is arbitrary and special, and not in pari materia with other statutes declaring the rights of mortgagors and mortgagee^ and others in other respects, and not inconsistent with the general doctrines of equity and rules of law relating to mortgages and mortgage interests; and if any such inconsistency exists, the judicial must yield to the statutory regulations. If the mortgage, for the purpose of the act, is a conveyance of real estate to the mortgagee as a purchaser, then every transfer or assignment of that mortgage is a conveyance of the same real estate to the assignee, who becomes, within the equity and reason as well as the words of the statute, a purchaser entitled to and within its protection. An estate, or interest in real estate, is assigned by the transfer of the mortgage in the same way and to the same extent that it is conveyed by the mortgage to the mortgagee. By section 37, the assignee of a mortgage is expressly declared to be a “purchaser,” and if a purchaser, it can. be only of the “ real estate ” or the mortgage interest in the premises mortgaged, and not merely of the mortgage debt as a personalty, and which is not within the recording-acts. It gives to the assignee of the mortgage all the protection which is guaranteed to the mortgagee, and even if this section should be regarded as having primary reference to conveyances and claims adverse to the mortgagee as well as his assignee, it, nevertheless, is high evidence of the liberal spirit and intent of the act, and. the intention to protect all as “purchasers” who deal with or take title to interests and estates in realty which are within the purview of the act. The legislature, at the time of the passage of the act, and as a part of it, put a construction upon it by enacting that the recording of an assignment of a mortgage should not be deemed in itself notice of such assignment to a mortgagor, his heirs, &c., so as to invalidate any payment made to the mortgagee. (1 R. S., p. 763, § 41.) Within every principle of construction, this is a legislative declaration that assignments of mortgages are within the recording acts, for all purposes and as to all persons, .except as qualified by the act itself. The Bevisors, in their note to this section, say, “ assignments of mortgages will be included in the term 1 conveyance ’ as thus definedwhich construction, adopted by the legislature, made the qualification necessary. (3 R. S., 2d ed., p. 607.) The Chancellor, in Vanderkemp v. Sheldon (11 Paige, 28), adopted this view of the statute, and held that the principles of the-recording acts, as modified by the Bevised Statutes, extended to an assignment of a mortgage of an interest in real estate. I am not aware that this construction has ever been questioned.

The only other question is, whether the respondents are Iona fide purchasers of this mortgage for a valuable consideration. It is not claimed that they had actual notice of the assignment to the plaintiff; and the only fact which should have led them to suspect a prior assignment and put them on inquiry, was the failure and inability of the assignor to produce and deliver the bond and mortgage. It was a suspicious circumstance, and within the rule as to notice, which has been adjudged to be equitable as well under the recording acts as in other cases involving the question of bona fides, was sufficient to put the party upon inquiry. An omission to make any inquiry or to take any measures' to learn the reason of the non-production, and that the mortgagee, notwithstanding such omission, was still the true owner of the securities, would have been strong evidence of mala fides. Had the purchasers of the mortgage, under such circumstances, made no inquiry, they would have been deemed to have had notice of the facts which, upon inquiry, might have been learned, or, rather, the facts as they actually existed. It would have been a willful neglect of an obvious duty. Not that a party is bound, upon the peril of being postponed to some adverse claimant, to exercise the utmost circumspection, but he may not, upon a knowledge of facts—not a mere surmise or suspicion, but actual knowledge or notice of facts which would lead a prudent man to look further, and to suspect the title concerning which he was about to deal—studiously avoid all inquiry, and omit all examination; and if he does so, he will be chargeable with all the consequences of positive notice, actual fraud or willful neglect. Without disputing as to terms of notice, actual notice, or “constructive notice,” or their proper application, it is well settled that whatever is sufficient to put a party upon inquiry (that is, whatever has a reasonable certainty as to time, place, circumstance and persons), is in equity held to be good notice. (1 Story Eq. Jur., § 400.) This doctrine was applied in a case arising under the recording acts in Grimstone v. Carter (3 Paige, 421); Fuller v. Jackson (6 Wend., 213); Brown v. Blydenburgh (3 Seld., 141); Williamson v. Brown (15 N. Y., 354). The more correct statement of the principle is found in the case last cited, as put forth by Judge Selden, upon a critical review of the leading cases. In substance it is, that knowledge by the purchaser, assignee and mortgagee, of such facts as should put him upon inquiry as to the existence of. some adverse title or claim, is presumptive evidence of actual knowledge of such adverse title and its extent, or that he has negligently omitted to make the proper inquiry, and in either view has no claim to the character of a bona fide purchaser, assignee or mortgagee. In this case the evidence negatives all pretence that the respondents intentionally neglected any precaution to assure themselves of the validity of the title which they were about to acquire. The plaintiffs had negligently omitted to put their title upon record, and by that omission had put it in the power of the mortgagee to perpetrate .a fraud. There was nothing to point the respondents, or any one else, to the plaintiff as the probable or possible owner of the mortgage. They examined the record, where the plaintiff, as a prudent man, should have placed his assignment, and found none. They inquired of the mortgagee, to whom notice of the assignment was, by the terms of the mortgage, to be given, and he had heard of no assignment, and the mortgagee positively affirmed that no assignment had been made, and plausibly excused the non-production of the instrument. The respondents did all they could do to ascertain the truth, unless it' be held that no assignment is valid except the mortgage be produced, or that every assignment is mala fide, as against a prior assignee, unless the mortgage be exhibited. They were only prevented from learning of the assignment by their diligent inquiry, by the negligent omission of the plaintiff to record . his assignment. The presumption which arises from knowledge of facts, to put á party on inquiry, is negatived in this case by the affirmative evidence that the respondents made the inquiry in every direction and to every extent that ordinary prudence, required; and their title should be protected as against one by whose acts the mortgagee was enabled to commit a fraud. As the most blameworthy, or indeed as the only one of the two contestants in the least blameworthy, the plaintiff should sustain the loss occasioned by his own imprudence. Brown v. Blydenburgh (supra) was a case like this, except the party there omitted to make any inquiry of the mortgagor; and it was held that, by reason of such omission, in the absence of the bond and mortgage, the dealing concerning the bond and mortgage was not bona fide. Judge Ruggles says: “ An inquiry of Atwell would have resulted either in a discovery of the fact that the securities had been previously assigned by Atwell, or in a misrepresentation by him of the true state of the case. Such a misrepresentation would have excused Blydenburgh. It would have been evidence of his good faith.” In Williamson v. Brown (supra) this court decided that when a party is put on inquiry by facts and circumstances, exercises due diligence in making inquiry and search after a prior adverse claim, and fails to discover it, the presumption which would otherwise attach to and postpone his title to such prior title is rebutted. Jones v. Smith (1 Hare, 43) is, in principle, decisive of this case. In that case, a party advancing money on a mortgage was informed of a marriage settlement between the mortgagor and his wife, but was told by the mortgagor and his wife that it did not include the premises proposed to be mortgaged, and they excused the production of the marriage settlement by saying that it was in the possession of a third person to whom, for some plausible reason, they did not wish to apply for it. The money was advanced on the mortgage, and it turned out that the representation was untrue, and the marriage settlement did include the mortgaged premises. It was held that the mortgagee used due diligence, and was not, under the circumstances, chargeable .with notice, actual or constructive, of the contents of the settlement. And see Hanbury v. Litchfield (2 M. & K., 629).

The respondents took a valid title to the mortgage, and the judgment must be affirmed, with costs.

Smith, J., also dissented.

Judgment reversed, and new trial ordered.