text:
    Robert Neary, an Infant, by Margaret Neary, His Guardian ad Litem, et al., Respondents, v. Middlesex Transportation Co., Inc., et al., Appellants.
    Argued November 19, 1946;
    decided January 16, 1947.

      Clarence 8. Zipp and Francis T. Lynch for Fred J. Parisi, appellant.

      N. F. Towner, Francis Van Orman and Thomas A. Clarice for Middlesex Transportation Co., Inc., appellant.

      Ralph Stout, Robert McGowan Smith and George N. Levine for respondents.
   As to Middlesex Transportation Co., Inc.: Judgments reversed and complaint dismissed, with costs in all courts, upon the ground that there was no evidence of wanton or reckless misconduct on the part of that defendant.

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

As to the defendant Fred J. Parisi: Judgment affirmed, with costs. No opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Frederick Brothers Artists Corporation et al., Appellants, v. Charles V. Yates, Respondent.
    Argued November 25, 1946;
    decided January 16, 1947.

      Bichará, Sioan Buell and John J. Boyle for appellants.

      Jack J. Katz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of The Ministers, Elders and Deacons of the Reformed Protestant Dutch Church of the City of New York, Respondent, against the Municipal Court of the City of New York, Borough of Manhattan et al., Defendants, and 123 William Street Corporation, Appellant.
    Argued November 26, 1946;
    decided January 16, 1947.

      John F. X. Finn, Samuel W. Dorfman and Morris Fish for appellant.

      Thomas F. Daly and Helen H. Robinson for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottgheak, Ch. J., Lewis, Coxway, Desmond, Thacher, Dye and Fuld, JJ.


text:
    Oliver Naas et al., Copartners Doing Business under the Name of Naas & St. John, Respondents, v. New York Co-operative Seed Potato Association, Inc., Appellant.
    Submitted November 12, 1946;
    decided January 16, 1947.

      Joe 8chápiro for motion.

      George Slewing ton and John Shivington opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless, within fifteen days, the moving papers are amended to comply with rule 21 (subd. b) of the rules of this court.


text:
    In the Matter of a Plan of Readjustment of the Rights of Holders of Investments in a Mortgage Covering Premises No. 50-05 43rd Avenue, Woodside, Borough of Queens, Guaranteed by Bond and Mortgage Guarantee Company. (Guarantee No. 181,615.) Canfield Properties Corp. et al., Appellants; William T. Harris, as Trustee for Certificate Holders, et al., Respondents.
    Submitted November 25, 1946;
    decided January 16, 1947.

      Henry N. Bapaport and Salvatore M. Pino, Jr., for motion.

      William T. Harris, Manuel Weiss and Carl Brecher opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Donald P. Ackley, Appellant.
    Submitted November 27, 1946;
    decided January 16, 1947.
   Motion by appellant to amend remittitur denied on the ground that in the opinion of the court the asserted Federal questions are not substantial. [See 296 N. Y. 731.]


text:
    Maurice Handman, Respondent, v. Parfums Lengyel, Ltd., Defendant, and George Lengyel et al., Appellants.
    Submitted November 27, 1946;
    decided January 16, 1947.

      Benjamin C. Bibman opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements but without prejudice to a renewal thereof after judgment has been entered.-


text:
    In the Matter of the Accounting of Emily Marx, as Committee of the Estate of Thomas A. McHugh, an Incompetent Veteran, Appellant. Frank T. Hines, as Administrator of Veterans’ Affairs, et al., Respondents.
    Submitted November 27, 1946;
    decided January 16, 1947.
   Motion by appellant for reargument of motion to dismiss appeal denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 747.]


text:
    General Synod of Reformed Church in America, Respondent, v. Bonac Realty Corporation, Appellant, et al., Defendants.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Sidney J. Loeb and Leon Harris for motion.

      George L. Alim opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements unless, within fifteen days, the moving papers are amended so as to comply with rule 21 (subd. b) of the rules of this court.


text:
    The People of the State of New York, Respondent, v. Aaron Glassberg, Appellant.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Aaron Glassberg, in person, for motion.

      Miles F. McDonald, District Attorney {Henry J. Walsh of counsel), opposed.
   Motion for leave to appeal and to prosecute appeal as a poor person denied upon the ground that the order from which leave to appeal is sought is not an order finally determining a special proceeding or a judgment finally determining an action within the meaning of the Constitution.


text:
    In the Matter of William J. Silverman, Respondent, against Franklin Taylor et al., as Members of the Board of County Judges of Kings County et al., Appellants.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Frauds J. McNgmee, Arthur G. Goldberg and Boy P, Monahan for motion.
   No one opposed.

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


text:
    Gertrude Estin, Respondent, v. Joseph Estin, Appellant.
    Submitted January 6, 1947;
    decided January 16, 1947.

      James G. Purdy and George 8. Wing for motion.

      Boy Guthman opposed.
   Motion denied, with $10 costs and necessary printing disbursements on the ground that an appeal lies as of right upon a constitutional question. (See Civ. Prac. Act, § 588, subd. 1, cl. [a].)


text:
    In the Matter of the Application of Emily Marx, as Committee of the Estate of Thomas A. McHugh, an Incompetent, Appellant. Veterans’ Administration et al., Respondents.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Emily Marx, in person, for motion.

      Frank Klipper and Milton L. Goldstein opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    Morris Goldberg, as a Director of Atlantic Fabric Products, Inc., Formerly Known as Murray Goldberg, Inc., Respondent, v. Harry Green, Appellant, et al., Defendants.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Homer I. Harris for motion.

      Stephen Callaghan opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Edward J. Simpson, an Incompetent Person. Walter Simpson, as Substituted Committee, Appellant. Wirt C. Groom, as Acting Superintendent of Hudson River State Hospital, Appellant.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Nathaniel L. Goldstein, Attorney-General (Louis E. Cooler of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed, with costs and $10 costs of motion unless appellant serves and files an undertaking on appeal and pays $10 costs within ten days in which event motion denied. ■ •


text:
    Harold B. Bass, Respondent, v. Pauline F. Bass, Appellant.
    Submitted January 6, 1947;
    decided January 16, 1947.


text:
    Anastasia M. Maloney, as Administratrix of the Estate of John T. McCarty, Deceased, Appellant, v. State of New York, Respondent. Eleanor A. K. Gokey, Appellant, v. State of New York, Respondent.
    (Claim No. 27499.)
    (Claim No. 27500.)
    Submitted January 6, 1947;
    decided January 16, 1947.

      Nathaniel L. Goldstein, Attorney^-General (Joseph A. Drago of counsel), for motions.

      Carl L. McMahon opposed.
   Motions denied, with $10 costs.


text:
    George W. Benjamin, Plaintiff, v. Margaret Benjamin, Appellant. Florence Benjamin, as Administratrix of the Estate of George W. Benjamin, Deceased, Respondent.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Sidney J. Ungar for motion.

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


text:
    In the Matter of the Accounting of Jane Donellan as Executrix of John P. Donellan, Deceased, Appellant. Cecelia L. A. Slater, Respondent.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Gabriel E. Torre and Benoni B. Gattell for motion.

      Thomas F. Croahe opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    George A. Langan, as Trustee of Onondaga Litholite Company, Bankrupt, Respondent, v. First Trust & Deposit Company et al., Appellants, et al., Defendants.
    Submitted January 6, 1947;
    decided January 16, 1947.
   Return of remittitur requested and when returned it will be amended so as to provide that the appeal be dismissed, without costs, unless the appellants apply to the Appellate Division within thirty days for resettlement of the order granting leave to appeal, and for the certification of a question or questions in accordance with section 589, subdivision 3, clause (b), and section 603 of the Civil Practice Act, and unless thereafter such application is granted. [See 296 N. Y. 60.]


text:
    In the Matter of Harvey Bistany, Appellant, against Board of Parole et al., Respondents.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Nathaniel L. Goldstein, Attorney-General (William 8. Elder, Jr., of counsel), opposed.
   Motion denied and appeal dismissed upon the ground that an appeal does not lie to this court as of right.


text:
    Atlantic Gulf and West Indies Steamship Lines, Respondent, v. City of New York, Appellant.
    Submitted January 6, 1947;
    decided January 16, 1947.

      Frank J. Berberich and Roderick J. Kirkpatrick for motion to dismiss appeal.

      John J. Bennett, Corporation Counsel (Albert S. Hartman of counsel), for motion to amend notice of appeal and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal denied. Motion to amend notice of appeal granted.


text:
    Louis Singer et al., Suing on Behalf of Themselves and For All Other Persons in the Business of Selling Soft Drink Beverages in the Borough of Brooklyn, Appellants, v. Kirsch Beverages, Inc., et al., Defendants, and Jacob Engar, as President of the Soft Drink Workers’ Union, Local No. 812, New York City, of the International Brotherhood of Teamsters, American Federation of Labor, et al., Respondents.
    Submitted January 13, 1947;
    decided January 16, 1947.

      Louis E. Solomon for motion.

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


text:
    Josephine Huisward et al., Respondents, v. Good Humor Corporation, Defendant, and Westchester Street Transportation Company, Inc., Appellant.
    Submitted January 13, 1947;
    decided January 16, 1947.
   Motion to amend record on appeal denied, with $10 costs and necessary printing disbursements.


text:
    In the Matter of the Construction of the Will of Harry Maybaum, Deceased. Nathaniel Kozinn, as Executor of Harry Maybaum, Deceased, Appellant. Mollee G. Maybaum et al., Respondents.
    Submitted January 13, 1947;
    decided January 16, 1947.
   Motion to amend record on appeal granted by including therein a writing directed to appellant’s attorney authorizing him to prosecute, on behalf of certain legatees and distributees, the appeal taken to the Court of Appeals. [See 296 N. Y. 201.]


text:
    In the Matter of the Arbitration between David M. Levy, Appellant, and Howard C. Hirsch et al., Copartners Doing Business under the Name of Hirsch & Co., Respondents.
    Submitted January 6, 1947;
    decided January 17, 1947.

      Louis Boehm and Robert L. Boehm for appellant.

      Abraham Sitarnos and J. Howard Rossbach for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Curtiss-Wright Corporation, Appellant, v. Incorporated Village of Garden City, Respondent.
    Argued January 6, 1947;
    decided January 17, 1947.

      Kenneth M. Spence and David B. Tolins for appellant.

      George L. Hubbell, Jr., and Vincent W. Farley for respondent.
   Judgment affirmed, with costs; no opinion.

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


author: Conway, J.; Desmond and Dye, JJ.,

text:
    In the Matter of the Will of Clara Birdsell, Deceased. Julia Wells, Respondent; Kingsboro Avenue Presbyterian Church of Gloversville, Appellant.
    Argued January 6, 1947;
    decided January 17, 1947.

      John D. Wood for appellant.

      Floyd J. Reinhart for respondent.
   Order affirmed, with costs to all parties appearing separately and filing briefs payable out of the estate. No opinion.

Concur: Loughban, Ch. J., Lewis, Thacheb and Fulo, JJ.

Conway, J.; Desmond and Dye, JJ.,

Taking no part: dissent on the ground that paragraph fifth of the will, which is clear and complete, plainly devises and bequeaths the residue to the appellant church under the circumstances existing at testatrix’ death.


text:
    The People of the State of New York, Respondent, v. Louis Wallens, Appellant.
    Decision handed down January 17, 1947.
   The court will hear argument upon the following question: In a criminal case tried before a jury and a Justice of the Peace, is the justice required to charge and instruct the jury and, if so, may this requirement be waived by failure to request a charge or otherwise?


text:
    In the Matter of the Petition of Rose Eitingon. In the Matter of the Accounting of Motty Eitingon et al., as Surviving Trustees of a Trust for Rose Eitingon. Motty Eitingon et al., Individually and as Executors and Trustees, Appellants; Rose Eitingon et al., Respondents.
    Argued January 7, 1947;
    decided February 20, 1947.

      Monroe Goldwater, George P. Halperin, Daniel Katz and Eugene V. Weissman for Motty Eitingon et ah, individually, appellants.

      Arthur Garfield Hays and James B. Cherry for Motty Eitingon et al., as executors of Solomon Schild, deceased, appellants.

      Kenneth J. Mullane and William T. Griffin for Rose Eitingon Field, respondent.

      Morris J. Bricker and Samuel Levy, special guardians for Joan Goldstein and another, respondent.
   An order or decree of a Surrogate’s Court vacating a prior decree in an accounting proceeding, and ordering or contemplating further proceedings on the account, is not a final order in a special proceeding within the meaning of the Constitution. Anything to the contrary in Matter of Tilden (98 N. Y. 434) is hereby overruled. No opinion.

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


text:
    Manufacturers and Traders Trust Company, Appellant, v. Elliott V. Bell, as Superintendent of Banks of the State of New York, Respondent.
    Argued January 6, 1947;
    decided February 20, 1947.

      George A. Newbury for appellant.

      Nathaniel L. Goldstein, Attorney-General (John G. Grary, Jr., and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghbax, Ch. J., Lewis, Coxway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    William Murrain, as Administrator of the Estate of Martha Murrain, Deceased, et al., Appellants, v. Wilson Line, Inc., et al., Respondents.
    Argued January 6, 1947;
    decided February 20, 1947.

      Jerome Golenbock, Irving Komoroff and Herman L. Feldman for appellants.

      Walter L. Glenney for Wilson Line, Inc., respondent.

      Charles E. Murphy, Corporation Counsel (W. Bernard Rich-land, Seymour B. Quel and Pauline K. Berger of counsel), for City of New York, respondent.
   Judgment affirmed, with costs; no opinion. [See 296 N. Y. 995.]

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Dyb and Fuld, JJ. Taking no part: Thacheb, J.


text:
    In the Matter of the Claim of Helen C. Dondero, Respondent, against Queensboro News Agency, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued January 8,1947;
    decided February 20, 1947.

      Bernard Katzen, General Attorney for State Insurance Fund (George J. Hayes and Victor Fiddler of counsel), and for Queensboro News. Agency, Inc., appellants.

      Jack M. Perlman, Irving B. Cohen and Samuel Mezansky for claimant, respondent.-
   Order of Appellate Division reversed and decision of Workmen’s Compensation Board confirmed, without costs, upon the ground that there is evidence sufficient to support the findings made by the Board. (See Workmen’s Compensation Law, § 20.) No opinion.

Concur: Loughban, Ch. J., Lewis, Desmond and Fuld, JJ. Dissenting and voting to affirm: Thachbb and Dye, JJ.' Taking no part: Conway, J.


text:
    In the Matter of John M. Bateman, Appellant, against Harry W. Marsh et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents. In the Matter of James J. Weldon, Appellant, against Harry W. Marsh et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents. In the Matter of John M. Parchen, Appellant, against Harry W. Marsh et al., Constituting the Municipal Civil Service Commission of the City of New York, Respondents.
    Argued January 8, 1947;
    decided February 20, 1947.

      Milton L. Rosenberg for appellants.

      John J. Bennett, Corporation Counsel (Seymour B. Quel, Helen R. Cassidy and Harry Hollander of counsel), for respondents.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Irving I. Wacoman of counsel), appearing, pursuant to section 68 of the Executive Law, in support of section 6 of article V of the New York State Constitution.
   Order affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Thachee and Dye, JJ. Taking no part; Fuld, J.


text:
    George R. Schivera, Appellant, v. Long Island Lighting Company, Defendant, and Robert Forrester, as Treasurer of Building and Construction Trades Council of Nassau and Suffolk Counties, an Unincorporated Association, Respondent.
    Submitted January 6, 1947;
    decided February 20, 1947.
   Motion by appellant for reargument and for a stay denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 26.]


text:
    In the Matter of the Rehabilitation of Bond and Mortgage Guarantee Company. In the Matter of a Plan of Readjustment of the Rights of the Holders of Investments in a Mortgage Covering Premises 107-111 Sunrise Highway, Freeport, County of Nassau, Guaranteed by Bond and Mortgage Guarantee Company. (Guarantee No. 181,754.) Samuel L. Golden, Appellant; Bert Seaman et al., Respondents.
    Submitted February 17, 1947;
    decided February 20, 1947.

      Paul B. Silverstein for motion.

      James F. Conway and Jonathan A. Hendrie opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless, within five days, all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals, are filed.


text:
    In the Matter of Robitzek Investing Co., Inc., et al., Respondents, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants.
    Argued January 8, 1947;
    decided February 21, 1947.

      Harry H. Chambers for respondents. •
   Order affirmed and order absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

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


text:
    Geraldine Kelly, Appellant, v. G-M Land Corporation, Respondent.
    Submitted February 17, 1947;
    decided February 21, 1947.

      David L. Weissmm and Harry HausknecM for motion.

      Abraham A. Jacobson, Henry Vollmer, Jr., and John G. Osborne opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless, within fifteen days, all papers required by-rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    Harold R. Livingston et al., Appellants, v. Todd Shipyards Corporation, Respondent.
    Submitted February 17, 1947;
    decided February 21, 1947.

      Joseph K. Guerin and Herbert Goldniark for motion.

      Jules Haberman and Robert B. Lisle opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements upon the ground that the judgment does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. John J. Scheppa, Appellant.
    Submitted February 17, 1947;
    decided February 21, 1947.
   Motion by appellant for reargument denied. [See 295 N. Y. 359.]


text:
    The People of the State of New York, Respondent, v. Nicholas Geniale, Appellant.
    Submitted February 17, 1947;
    decided February 21, 1947.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for motion to dismiss appeal.

      Joseph Lonardo for motion to dispense with printing of record on appeal and for enlargement of time.
   Motion to dismiss appeal denied. Motion to dispense with the printing of the record on appeal granted. Motion for enlargement of time granted solely on the ground that the default herein occurred prior to our decision in People v. Solomon (296 N. Y. 85). Case set down for argument during next session.


text:
    Pennsylvania Company for Insurances on Lives and Granting Annuities, as Trustee under the Will of Samuel J. Tilden, Deceased, Respondent, v. Richard T. Stauffer et al., Defendants; United States Trust Company of New York, as Executor of Marie C. S. Eastwick and as Trustee under a Testamentary Trust for the Eye, Ear, Nose and Throat Hospital of New Orleans, Louisiana, Respondent, and Peter Burnett, Appellant.
    Submitted February 17, 1947;
    decided February 21, 1947.

      Samuel J. Levinson, Frank Weinstein and Robert Bernstein for motion.

      Stanley F. Reed, Jr., for plaintiff, opposed.

      Williamson Pell, Jr., and Pandia G. Ralli for United States Trust Company of New York as executor, opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements unless, within fifteen days, all papers required by rule 21 ( subd. b) of the Rules of the Court of Appeals are filed.


text:
    Michael Kozakowski, Appellant, v. St. Marks Manor Community Center, Respondent.
    Submitted February 17, 1947;
    decided February 21, 1947.

      James I. McGuire and George A. Garvey for motion.

      John H. Munley opposed.
   ' Motion granted and appeal dismissed, with costs and $10 costs of motion unless appellant, within ten days of service of this order, serves and files an undertaking and pays $10 costs in which event motion denied.


text:
    In the Matter of Rumsey Manufacturing Corporation, Respondent. Edward Corsi, as Industrial Commissioner of the State of New York, Appellant.
    Submitted February 17, 1947;
    decided February 21, 1947.
   Motion by respondent for reargument denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 113.]


text:
    In the Matter of Samuel Shillitani, Appellant, against Lewis J. Valentine, as Police Commissioner of the City of New York, et al., Respondents.
    Submitted February 17, 1947;
    decided February 21, 1947.
   Motion by appellant for reargument and to amend remittitur denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 161.]


text:
    Ada Richling, as Administratrix of the Estate of Ike Richling, Deceased, Appellant, v. Rockwood & Company, Respondent.
    Argued January 8, 1947;
    decided February 27, 1947.

      Myron Wisoff and Samuel J. Moskowits for appellant.
    . Alexander Orr, Jr., John P. Smith, ■Walter G. Evans and Albert Thill for respondent.
   Judgment of Appellate Division reversed and case remitted to that court for determination upon the questions of fact raised in that court (Civ. Prac. Act, § 606), with costs to abide the event. There was evidence that plaintiff was a business visitor to whom defendant owed the duty of keeping the premises reasonably safe (Haefeli v. Woodrich Engineering Co., 255 N. Y. 442, 448), that this duty was breached and that plaintiff was not guilty of contributory negligence (Christensen v. Hannon, 230 N. Y. 205, 208; Tobin v. Ariel Holding Corp., 291 N. Y. 606). No opinion.

Concur: Lottghban, Ch. J., Lewis, Coswat, Desmond, Thacheb, Dye and Finn, JJ.


text:
    Elizabeth M. Dolan, Respondent, v. Harry T. Dolan, Appellant.
    Submitted January 13, 1947;
    decided February 27, 1947.

      Harry T. Bolán, appellant in person.

      Edwin L. La Crosse and John A. Bolles for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Desmond, Thaoheb and Fuld, JJ. Dissenting: Dye, J. Taking no part: Conway, J.


author: Fuld, J.

text:
    St. William’s Church, Raquette Lake, New York, Respondent, v. People of the State of New York, Appellant.
    Argued May 29, 1946;
    decided February 27, 1947.

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd, Charles F. Steele, Herbert A. Einhorn and Irving Z. Waxman of counsel), for appellant.

      J. Theodore Cross and Francis C. Steates for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts, on the ground that there is no evidence of occupation or constructive possession of the particular lots in suit for such a time or in such a manner as to establish title by adverse possession in any person or persons from whom the plaintiff claims to have derived its title. We decide no other question. [See 296 N. Y. 1000.]

Concur: Loughban, Oh. J., Lewis, Conway, Thachbb and Dye, JJ. Fuld, J., dissents in opinion in which Desmond, J., concurs.

Fuld, J.

(dissenting). Plaintiff asserts title to two small lots — each 60 by 136 feet — situate on a hillside at the north end of the hamlet of Raquette Lake in the Adirondacks. When the region was still a wilderness, Alvah Dunning — not a stranger to our reports (People ex rel. Marsh v. Campbell, 143 N. Y. 335; People v. Ladew, 189 N. Y. 355; People v. Ladew, 237 N. Y. 413) — came upon the land and, according to plaintiff, occupied a tract of some 30 acres which included both the hillside and what is now the village proper. Dunning eventually deeded this entire tract to the Raquette Lake Railway Company, and it is through them that plaintiff’s claim of title comes.

By virtue of various conveyances and partitions, the State holds an undivided interest in a 7,000 acre tract embracing the land in question. When, in 1938, plaintiff started to build upon the two lots, the State ordered it to desist. Plaintiff thereupon commenced the present action against the State to quiet title. In defending, the State asserted title in itself.

The trial court found for plaintiff, holding that it had acquired valid title to the lots involved through adverse possession by its predecessors, and a unanimous Appellate Division affirmed. A majority of this court has, however, voted to reverse the judgment and to dismiss the complaint on the ground that evidence of adverse possession is lacking. In that determination I cannot concur. I agree with the trial court and with the Appellate Division that plaintiff’s proof was more than sufficient to support the finding below that the land was adversely held for upwards of fifty-two years — by Dunning for seventeen years, by his successors for thirty-five years more.

Although adverse possession may not run against the State’s interest in public lands (Hinkley v. State of New York, 234 N. Y. 309; People v. Baldwin, 233 N. Y. 672, affg. 197 App. Div. 285), that immunity does not extend to the interests of those who hold as tenants in common with the State. (Cf., e.g., Sweetland v. Buell, 164 N. Y. 541; Archibald v. New York Central & H. R. R. R. Co., 1 App. Div. 251, affd. 157 N. Y. 574; Culver v. Rhodes, 87 N. Y. 348; Florence v. Hopkins, 46 N. Y. 182, 186; Ward v. Dewey, 16 N. Y. 519.) Plaintiff herein does not assert title by virtue of adverse possession against the State, but rather claims by succession, through adverse possession, to the title of the State’s cotenants — and, 1 note, the judgment below, declaring plaintiff’s rightful possession and ownership of the premises in question “ in fee simple absolute subject only to such rights as the defendant * * * [the State] may have,” fully recognizes this concept.

Adverse possession by Alvah Dunning

Where claim of title is not founded upon a written instrument, judgment or decree, only the premises actually occupied in the manner prescribed by statute — that is, “ protected by a substantial inclosure ” or usually cultivated or improved ” — are deemed to have been held adversely (Civ. Prac. Act, §§ 39, 40). In determining the sufficiency of such cultivation or improvement, however, the words of the statute are to be construed, not in a narrow and technical sense, but rather with reference to the nature, character and location of the property under consideration. (See Ramapo Mfg. Co. v. Mapes, 216 N. Y. 362; Koch v. Ellwood, 138 App. Div. 584; Shinnecock Hills & Peconic Bay Realty Co. v. Aldrich, 132 App. Div. 118, affd. 200 N. Y. 533.) For, as pointed out in Monnot v. Murphy (207 N. Y. 240, 245), the object of the statute is that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and "be thereby called upon to assert his legal title.” (See, also, Trustees, Town of East Hampton v. Kirk, 84 N. Y. 215, 220.)

The record, before us establishes that in 1882 Dunning, an Adirondack» guide, a gypsy-like character, entered upon a woodland tract, primitive, completely isolated, consisting of some 30 acres. It was — so the trial court found as a fact — enclosed by natural boundaries in keeping with and sufficient for the locality and the times ”, for it was bounded by the lake on the east, by swampland on the south and west, and by the crest of a hill on the north. This little domain Dunning claimed as his own, and drove from it all who chanced to enter. He cleared a site for his cabin and garden and erected thereon his home. The remainder of the tract he utilized for the satisfaction of his frugal needs: fish and game for food, timber for fuel and building purposes, maple trees for sugar and syrup.

Having those facts in mind, it would be most unreal and unreasonable to require, as a condition precedent to the successful assertion of an adverse possession claim, that Dunning fence in the entire area or reduce it all to actual tillage. (See Munro v. Merchant, 28 N. Y. 9, 44.) In my view, he did all that was necessary for those times, all that was required for that locality, in actively cultivating and improving a part of the tract and in holding the remainder in subservience to, and for the benefit of, that portion.

Even if Dunning’s seventeen-year occupation were to be disregarded, the finding that plaintiff had acquired title could still be predicated upon proof of his successors’ possession.

Adverse possession by Dunning’s successors

Unlike Dunning’s possession — based solely upon sheer naked occupation — his successors’ claim to the premises was founded upon a written instrument. Accordingly, different rules apply. By virtue of statute, continued occupation of “ some part ” is “ deemed ” adverse possession of all of the premises included in the instrument ” (Civ. Prac. Act, § 37). There is no dispute here that some part ” of the tract acquired by the railway company was continuously occupied and improved. Thus, shortly after the execution and delivery of Dunning’s deed in June of 1899, his grantee entered into possession and built its railroad and terminal facilities. Upon the lands south of the hillside, it constructed its lines of track, a station, water supply and sewerage disposal system, an ice house, a store, other buildings, and docks and wharves along the lake front. In addition, its lessees carried on a mercantile business, operated a hotel and a sawmill, and aided in the construction of roads.

The hillside, it appeared from the evidence, was treated as subservient to the remainder of the land included in the Dunning deed and was utilized for its benefit. For example, the lumber for the railway company’s docks and buildings, the stone for foundations came from the hillside area. And after it had been cleared of brush, the company’s employees — apparently with its consent — there established homes, building houses and cultivating gardens along the whole length of the slope.

In the light of the uncontroverted evidence, it seems clear that the railway company between 1899 and 1936 had continuous and actual possession of a large part of the premises deeded by Dunning. That being so, it follows that all of “ the premises so included [in the Dunning deed] are deemed to have been held adversely ” (Civ. Prac. Act, § 37). There was, in short, more than sufficient to justify the trial court’s conclusion that plaintiff had proven adverse possession not only as to the center of the hamlet but also as to the hillside.

Protection of the State’s interest demands neither a strained construction of the record nor a forced application of the rules governing adverse possession. In this case, the State’s undivided share as determined by the trial court, if set off in severalty, would amount tó slightly over 4,800 acres out of a 7,000 acre tract. There thus remain more than 2,000 acres against which these two building lots of plaintiff —120 feet by 136 feet in size — can be charged. Indeed — since the land still remaining in the tract and not set off in severalty is more than ample to satisfy the State’s claims in full — even if this action be regarded as establishing title by adverse possession to the whole 30 acre tract included in Dunning’s deed, I cannot see. how the State’s interests are in any way prejudiced or injured. '

The judgments should be affirmed, with costs.


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    In the Matter of the Arbitration Between Bernard Bercu et al., Appellants, and Ralph W. Levinson, Respondent.
    Submitted January 10, 1947;
    decided February 27, 1947.

      Irving 1. Hartman for appellant.

      Louis Bierfass for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Oh. J., Lewis, Conway, Desmond, Thacheb, Dye and Ftjld, JJ.


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    The People of the State of New York, Respondent, v. Herman W. Hosier, Appellant.
    Submitted January 14, 1947;
    decided February 27, 1947.

      Benjamin M. Goldstein and Carl P. Goldstein for appellant.

      Benjamin Newberg, District Attorney (Madeline J. Cox of counsel), for respondent.
   Judgment affirmed; no opinion.

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


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    Eva Davis et al., Appellants, v. City of New York, Respondent.
    Argued January 14, 1947;
    decided February 27, 1947.

      Robert Hyman for appellants.

      John J. Bennett, Corporation Counsel (David M. Fuchs and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Desmond, Thaoheb, Dye and Fuld, JJ. Dissenting: Lewis, J. Taking no part: Conway, J.


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    Marie Nelson et al., Appellants, v. Salem Danish Lutheran Church, Respondent.
    Argued January 16, 1947;
    decided February 27, 1947.

      Herbert L. Fine and Samuel Douglas for appellants.

      Charles E. Howell, Constantine Begusis and William E. Lowther for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    In the Matter of Peter Bolani, Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued January 17, 1947;
    decided February 27, 1947.

      Alvin McKinley Sylvester and Henry V. Boell for appellants.

      Harry A. Allan for respondent.
   Order of Appellate Division reversed and determination of State Liquor Authority confirmed, with costs in this court and in the Appellate Division, upon the ground that the findings of the Authority are supported by substantial evidence. No opinion.

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


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    Alfred C. Waldorff, Respondent, v. Stanley J. Tomaka, Doing Business under the Names of Tomaka Coal, Coke & Builders Supply Co. and Tomaka Coal, Lumber & Builders Supply Co., Appellant.
    Submitted February 20, 1947;
    decided February 27, 1947.

      Abraham Both for motion.

      Murle L. Rowe opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless within fifteen days all papers required by rule 21 (subd. b) pf this court are filed.


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    Katherine Bradley, as Administratrix of the Estate of Sarah B. Arnold, Deceased, Respondent, v. John D. Furlong, Appellant.
    Submitted February 19, 1947;
    decided February 27, 1947.

      David B. Sugarman for motion.

      Paul B. Shanahan opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless' within fifteen days all papers required by rule 21 (subd. b) of this court are filed.


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    The People of the State of New York ex rel. Michael Noto, Appellant, against Walter B. Martin, as Warden of Attica Prison, Respondent.
    Submitted January 6, 1947;
    decided February 27, 1947.

      Michael Noto, in person, for motion for leave to appeal.

      Nathaniel L. Goldstein, Attorney-General (Emil L. Cohen of counsel), for motion to dismiss appeal.
   Motion for leave to appeal denied. Motion to dismiss appeal granted and appeal dismissed.


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    The People of the State of New York ex rel. Bjorn Reed, Appellant, against Supreme Court of the State of New York. Clinton County, et al., Respondents.
    Submitted February 17, 1947;
    decided February 27, 1947.

      Bjorn Reed, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (George A.^Rads of counsel), opposed.
   Motion denied and appeal dismissed on the ground that an appeal does not lie to this court.


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    In the Matter of Gerald A. Buckley, Appellant, against J. Edward Conway et al., Constituting the Civil Service Commission of the State of New York, et al., Respondents.
    Submitted February 17, 1947;
    decided February 27, 1947.

      Francis J. McN ornee, Arthur C. Goldberg and Roy P. Monahan for motion.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Patrick H. Chine, John W. Barnell and Ruth Kessler Toch of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements unless within fifteen days an affidavit is filed stating the date when a copy of the order of the Appellate Division denying permission to appeal, together with notice of entry thereof, was personally served upon petitioner or, if such service was made by mail, the date of mailing thereof.


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    The People of the State of New York ex rel. Sheffield Farms Co., Inc., Appellant, against Joseph Lilly et al., Constituting the Tax Commission of the City of New York, Respondents. (130th St. and 94th Ave., Borough of Queens.)
    Submitted February 24, 1947;
    decided February 27, 1947.
   Motion by appellant for reargument denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 798.]


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    The People of the State of New York, Appellant, v. Stanley Reese, Respondent.
    Argued January 9, 1947;
    decided February 28, 1947.

      Frank 8. Hogan, District Attorney (Edward T. Perry and Richard G. Denser of counsel), for appellant.

      Gilbert 8. Rosenthal for respondent.
   Order affirmed; no opinion.

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


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    The People of the State of New York ex rel. Bremerton Apartments, Inc., Appellant, against William W. Mills et al., Constituting the Tax Commission of the City of New York, Respondents. The People of the State of New York ex rel. Lochiel Apartments, Inc., Appellant, against William W. Mills et al., Constituting the Tax Commission of the City of New York, Respondents.
    Submitted January 13, 1947;
    decided February 28, 1947.

      Alfred H. HetJcin for appellants.

      Charles E. Murphy, Corporation Counsel (Morris Handel and William F. Murphy of counsel), for respondents.
   Orders affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thacheb, D_yb and Fuld, JJ.


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    Meyer Smulian, Appellant, v. Independent Warehouses, Inc., Respondent, and William Pfeifer, Jr., et al., Individually and as Copartners under the Name of Pfeifer Bros., Impleaded Defendants.
    Argued January 14, 1947;
    decided February 28, 1947.

      Paul O’Dwyer and Samuel Harris Cohen for appellant.

      John Boss Lauer and Henry Lloyd Connors for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotighran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


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    Daniel Pearlstein, Appellant, v. Lawrence W. Baff et al., Respondents.
    Argued January 15, 1947;
    decided February 28, 1947.

      Ralph Stout and Stephen Callaghan for appellant.

      Jay Leo Rothschild and Arthur J. Brothers for Jacques Garvin and another, respondents.

      Harry Greenberg for Lawrence W. Baff and others, respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Roof Health Club, Inc., Appellant, v. Jamlee Hotel Corp., Respondent.
    Argued January 16, 1947;
    decided February 28, 1947.

      Sidney Friedman and Herbert Dannett for appellant.

      Hyman Fried and Martin B. Nadie for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    John Donovan, Appellant, v. Irving Reynolds, Respondent.
    Submitted January 9, 1947;
    decided February 28, 1947.

      Benjamin C. Harvey and William L. Bowman for appellant.

      Frank F. Palmison, individually and as Trustee of the Board of Education of the City of Mount Vernon, as amicus curiae, in support of appellant’s position.

      Harold Borgwald, Corporation Counsel (Irving Libenson of counsel), for respondent.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Henry 8. Manley of counsel), appearing, pursuant to section 68 of the Executive Law, in support of the constitutionality of section 223 of the Education Law.
   Appeal dismissed, with costs, upon the ground that the asserted constitutional question is not the only question involved upon the appeal. No opinion..

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


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    Virginia McCann, an Infant, by Margaret McCann, Her Guardian ad Litem, Appellant, v. City of New York, Respondent.
    Argued January 13, 1947;
    decided February 28, 1947.

      Julius S. Christensen and Leon Shalov for appellant.

      John J. Bennett, Corporation Counsel {Seymour B. Quel and Fred Isool of counsel), for respondent.
   Judgment affirmed, without costs'; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thaohbb, Dye and Fuin, JJ.


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    The People of the State of New York, Respondent, v. William Washington and Arthur Johnson, Appellants.
    Argued January 15, 1947;
    decided February 28, 1947,

      Meyer E. Fried, Leo Mealy and Mario Sileo for appellant William Washington.

      Harry Chiert, William W. Kleimnan and Charles R. Rubin for appellant Arthur Johnson.

      Miles F. McDonald, District Attorney {Henry J. Walsh of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

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


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    In the Matter of Restaurants & Patisseries Longchamps, Inc., et al., Appellants, against John F. O’Connell et al., Constituting the State Liquor Authority, Respondents.
    Argued February 28, 1947;
    decided February 28, 1947.

      J. Bertram Wegman, Richard J. Burke, Jesse Moss and Myron L. Shapiro for appellants.

      Alvin McKinley Sylvester and Jack Reinstein for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ck. J., Lewis,. Conway, Desmond, Thaoher and Fixed, JJ. Taking no part: Dye, J.


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    Catherine A. Quinn, as Administratrix of the Estate of Thomas P. Quinn, Deceased, Appellant, v. Broadway-New Street Corporation, Respondent.
    Argued January 13, 1947;
    decided February 28, 1947.

      Paxton Blair, Marry M. Lipsig and Edward M. Edenbcmm for appellant.

      Archie B. Morrison, John D. Lynn and Daniel Miner for respondent.
   Judgment affirmed, with costs; no opinion.

Concurs Lottghran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ.


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    The People of the State of New York ex rel. Leo J. Lewis, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent. The People of the State of New York, Respondent.
    Argued January 14, 1947;
    decided February 28, 1947.

      Herbert T. Anderson for appellant.

      Nathaniel L. Goldstein, Attorney-General (Herman N. Harcourt, Wendell P. Brown, Patrick H. Cluhe and William 8. Elder, Jr., of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loughean, Ch. J., Lewis, Conwat, Desmond, Thaohbb, Dye and Fuld, JJ.


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    In the Matter of Queens-Nassau Transit Lines, Inc., Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Harold J. Cloutman for appellant.

      Philip Halpern, Philip Hodes, George H. Kenny and Samuel R. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of East Side Omnibus Corporation et al., Appellants, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Jacob I. Goodstein for appellants.

      Philip Ealpern, Philip Eodes, George E. Kenny and Samuel B. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of Eighth Avenue Coach Corporation, Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Boykin C. Wright, Joseph Bosch, George W. Sheldon and Thomas F. Fennell, II, for appellant.

      Philip Halpern, Philip Nodes, George H. Kenny and Samuel B. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of Madison Avenue Coach Company, Inc., Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Boykin G. Wright, Joseph Roseh, George W. Sheldon and Thomas F. Fennell, II, for appellant.

      Philip Ilalpern, Philip Eodes, George E. Kenny and Samuel R. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of New York City Omnibus Corporation, Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Boykin G. Wright, Joseph Bosch, George W. Sheldon and Thomas F. Fennell, II, for appellant.

      Philip Halpern, Philip Modes, George M. Kenny and Samuel B. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of Green Bus Lines, Inc., Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Walter R. Hart for appellant.

      Philip Halpern, Philip Hodes, George H. Kenny and Samuel R. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of Manhattan and Queens Bus Corporation, Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued January 13, 1947;
    decided February 28, 1947.

      Walter B. Mart for appellant.

      Philip Ealpern, Philip Eodes, George E. Kenny and Samuel B. Madison for respondents.
   Order affirmed, with costs; no opinion.

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


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    Benjamin Mahler et al., Suing on Behalf of Themselves and All Other Stockholders of Trico Products Corporation Similarly Situated, et al., Respondents, v. Trico Products Corporation, Appellant, et al., Defendants.
    Argued January 15, 1947';
    decided February 28, 1947.

      Harold R. Medina, James McG. Mitchell and Richard T. Davis for appellant.

      Benjamin Algase, James O. Moore, William Klein and Abraham Porter for respondents.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

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


author: Lewis and Conway, JJ.,

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    The People of the State of New York, Respondent, v. Sigmund Rosengarten, Appellant.
    Argued January 16, 1947;
    decided February 28, 1947.

      Henry Levine for appellant.

      Albert J. Rosenthal, William E. Remy, David London, Kenneth V. Fisher and Samuel Mermin for respondent.
   Judgments affirmed; no opinion. [See 297 N. Y. 471.]

Concur: Loughran, Ch. J., Desmond, Thacher, Dye and Fuld, JJ.

Lewis and Conway, JJ.,

concur in the single case charging defendant with having failed to tag meat with the sale price but in the remaining six cases dissent and vote to reverse upon the ground that the evidence adduced by the People was not sufficient in law to establish beyond a reasonable doubt the guilt of the defendant of the charge made against him.


author: Conway, J. Fuld, J.,

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    Stephen Manko, Appellant, v. City of Buffalo et al., Respondents.
    Argued January 9, 1947;
    decided February 28, 1947.

      Thomas J. McKenna and W. J. Wetherbee for appellant.

      Fred C. Maloney, Corporation Counsel (Bart J. Shanahan of counsel), for respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Desmond, Thaoher and Dye, JJ.

Conway, J. Fuld, J.,

Taking no part: dissents in the following memorandum: Section 21 of the Civil Service Law, implementing the Constitution (N. Y. Const., art. V, § 6), commands preferences to war veterans in appointment and promotion. Under subdivision 7, denial of the required preference. gives the veteran a cause of action for “ damages ”.

Words are flexible and take on meaning from the history and purpose of the legislation. (See Towne v. Eisner, 245 U. S. 418, 425, per Holmes, J.) Regardless of its limited denotation in a different context and under different circumstances, here, in the light of constitutional and statutory mandate, it is my view that the term damages ” encompasses counsel fees incurred by a veteran in a proceeding to secure the preference guaranteed him. (See Stiles v. Municipal Council of City of Lowell, 233 Mass. 174.) Confirmation for such construction is found in the circumstance that section 23 of the Civil Service Law entitles the nonveteran officer or employee wrongfully removed, not to “ damages ”, as specified in section 21, but to compensation ” lost to him.

The judgment should be reversed, with costs.


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    Henry M. Weitzner, Appellant, v. Herman T. Stichman, Individually and as Commissioner of Housing, et al., Respondents.
    Argued January 10, 1947;
    decided February 28, 1947.

      Bernard L. Bermant and Henry N. Bapaport for appellant.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs. The first and second questions certified are answered in the affirmative. The third question certified is answered in the negative. No opinion.

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


author: Fttld, J.,

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    E. Osborne Smith, Inc., Appellant, v. Meyer Weiss, Respondent.
    Submitted January 15, 1947;
    decided February 28, 1947.

      Karl Propper for appellant.

      Edmond B. Butler and Myron P. Gordon for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that evidence received without objection was sufficient to support the verdict upon the theory of the court’s charge, to which no exception was taken.

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

Fttld, J.,

dissents in the following memorandum: In order to succeed in this action, plaintiff broker was under the necessity of proving a contract with defendant that the latter would deal only through it and would refuse to purchase the property through any other broker. In my view, plaintiff has failed to establish such a contract. (Foss v. N. Y. C. & H. R. R. R. Co., 217 N. Y. 727; Sieven v. Glazer, 267 App Div 969, leave to appeal denied, 292 N. Y. 726.)


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    In the Matter of George Watinsky et al., Appellants, against John F. O’Connell et al., as Members of the State Liquor Authority, et al., Respondents.
    Submitted February 24, 1947;
    decided February 28, 1947.
    ■ Monroe I. Katcher, 11, for motion to have appeal heard on j seven printed copies of record and in opposition to motion for ' dismissal of appeal.

      John Di Lonardo and- Alvin McKinley Sylvester for motion to dismiss appeal.
   Motion for leave to have appeal heard on seven printed copies of the record on appeal denied without prejudice to a renewal thereof upon a showing of sufficient grounds for the granting of such relief. Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion unless, within ten days after service of a copy of this order, appellants serve and file the undertaking required by section 593 of the Civil Practice Act and pay $10 costs of this motion in which event motion denied. Motion to set the case at the foot of the order calendar denied.


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    Herman C. Jongebloed, as Administrator of the Estate of Kathryn Jongebloed, Deceased, Appellant, v. Erie Railroad Company, Respondent.
    Submitted February 17, 1947;
    decided February 28, 1947.

      William H. Timbers and Cleveland C. Cory for motion.

      Arthur A. Beaudry opposed.
   Motion to dismiss appeal denied, with $10 cost's. While no constitutional question was urged at the Trial Term, it is sufficient for our jurisdictional purposes that, as here, a substantial constitutional question was properly presented to the Appellate Division and was necessarily involved in its decision.


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    In the Matter of New York University, Respondent. Frank C. Moore, as Comptroller of the State of New York, Appellant.
    Argued February 18, 1947;
    decided April 10, 1947.

      Nathaniel L. Goldstein, Attorney-General (Edward L. Ryan, Wendell P. Brown and John R. Davison of counsel), for appellant.

      Bertram Boardman for respondent.
   Order affirmed, with costs; no opinion.

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


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    Carl G. Wooster, Appellant, v. C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Defendant, and New York State Guernsey Breeders’ Co-operative, Inc., Respondent.
    Argued October 10, 1946;
    reargument ordered April 10, 1947.

      Rowland L. Davis and Joe Schapiro for appellant,

      Irving G. Hubbs and Merritt A. Switzer for respondent.
   Reargument ordered during the first week of the May, 1947, session; this case to be reargued with Numbers 105 and 106, and counsel in all three cases are requested to consider the right of the appellant in each case to review the order of the Commissioner, whether in equity or under article 78 of the Civil Practice Act.


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    In the Matter of the Accounting of Robert C. Brown, as Executor of George L. Buckman, Deceased. Isabel Kay et al., Appellants; Emily W. MacCormack et al., as Executors and Trustees under the Will of Robert S. MacCormack, Deceased, et al., Respondents.
    Argued January 16, 1947;
    decided April 10, 1947.

      John M. Harlan, Clarence B. Campbell, Jerome S. ZurTcow and Philip C. Scott for appellants.

      Mortimer M. Kassell and Paul Newman for State Tax Commission, amicus curiae, in support of appellant’s position. William W. Pellet for respondents.
   Order affirmed, with costs payable out of the estate; no opinion. [See 297 N. Y. 472.]

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fund, JJ.


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    In the Matter of Intercontinent Corporation, Respondent. Curtiss-Wright Corporation, Appellant.
    Argued February 18, 1947;
    decided April 10, 1947.

      James H. Halpin and Rhoda E. Leshine for appellant.

      Leonard P. Moore and Edward R. Neaher for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conwat, Desmond, Thaoher, Dye and Fuld, JJ.


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    In the Matter of the Claim of James Newton, Respondent, against Spear & Company, Appellant, and American Mutual Liability Insurance Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued February 19, 1947;
    decided April 10, 1947.

      Harry J. Stein for appellant.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum, Wendell P. Brown and Daniel Polanshy of counsel), for respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board. We express no opinion as to constitutional validity of sections 110, 111 and 112 of the Labor Law. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thaoher, Dye and Etjxd, JJ. «


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    Piankay Realties, Inc., Appellant, v. Salvatore Romano, Respondent.
    Argued February 18, 1947;
    decided April 10, 1947.

      Samuel J. Joseph for appellant.

      Max ShliveTc and Saul S. Brin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helen Smith et al., Appellants, v. City of New York, Respondent.
    Argued February 17, 1947;
    decided April 10, 1947.

      David C. Broderick, John F. Middlemiss and Charles 8. Vaccaro for appellants.

      Charles E. Murphy, Corporation Counsel (Seymour B. Quel and Fred Iscol of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Salvatore Fortuna, as Administrator of the Estate of Sebastian M. Fortuna, Deceased, et al., Respondents, v. Stanley Sangster, as Administrator of the Estate of Earl Stiner, Jr., Deceased, Defendant, and Ada M. Serao, as Administratrix of the Estate of Frank Serao, Deceased, Appellant. (Action No. 1.) Charles B. Ullmann, Respondent, v. Stanley Sangster, as Administrator of the Estate of Earl Stiner, Jr., Deceased, Defendant, and Ada M. Serao, as Administratrix of the Estate of Frank Serao, Deceased, Appellant. (Action No. 2.)
    Submitted February 18, 1947;
    decided April 10, 1947.

      Joseph 8. McCann and Clarence 8. Zipp for appellant.

      Benjamin Heller and Louis Baron for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Max Beinhocker, Respondent, v. Barnes Development Corp., Appellant-Respondent, and Staley Elevator Company, Inc., Appellant.
    Argued February 20, 1947;
    decided April 10, 1947.

      William F. McNulty and Thomas A. Clarke for Staley Elevator Company, Inc., appellant.

      George A. Garvey for Barnes Development Corp., appellant-respondent.

      Benjamin H. Siff and Harry Geist for respondent.
   Judgment affirmed, with costs; no opinion. [See 297 N. Y. 472.]

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


text:
    In the Matter of the Application of John F. Cassidy for Admission to the Bar of the State of New York, Appellant.
    Argued January 9, 1947;
    decided April 10, 1947.

      Patrick I. Flannelly for appellant.
   Order affirmed; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Desmond, Thacheb, Dye and Fttld, JJ. Taking no part: Conway, J.


text:
    In the Matter of Leo S. Sacharoff, Appellant, against Edward S. Corsi, as Industrial Commissioner of the State of New York, et al., Respondents.
    Argued February 17, 1947;
    decided April 10, 1947.

      Albert Adams and Frederick L. Kane for appellant.

      Nathaniel L. Goldstein, Attorney-General (Irving Galt and Wendell P. Brown of counsel), for respondents.
   Order of the Appellate Division, insofar as it affirms the decision of the respondent Goodman as Acting Industrial Commissioner, sustaining the fourth specification in the bill of particulars of charges against the appellant, reversed on the ground that the evidence is insufficient in law to sustain the charge. The order, insofar as it affirms the decision of the respondent Goodman sustaining the first specification in the bill of particulars affirmed, but inasmuch as it does not conclusively appear that the Chairman of the Workmen’s Compensation Board would deem the action taken in this proceeding, predicated as it is upon specifications one and four of the bill of particulars, to be appropriate when unsupported by the decision by the Industrial Commissioner upon specification four, which we now reverse, the proceeding is remitted to the Chairman of the Workmen’s Compensation Board, for action under subdivision 2 of section 13-d of the Workmen’s Compensation Law, without costs.

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


text:
    In the Matter of Herman J. Blumenthal, Appellant, against Edward Corsi, as Industrial Commissioner of the State of New York, et al., Respondents.
    Argued February 17, 1947;
    decided April 10, 1947.

      Menahem 8tim for appellant.

      Nathaniel L. Goldstein, Attorney-General (Irving Galt and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Louohran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Fixed, JJ.


text:
    In the Matter of Frank Z. Serman, Appellant, against Edward Corsi, as Industrial Commissioner of the State of New York, Respondent.
    Argued February 17, 1947;
    decided April 10, 1947.

      Menahem Stim for appellant.

      Nathaniel L. Goldstein, Attorney-General (Irving Galt and Wendell P. Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dye and Ftjld, JJ.


text:
    Myrtle Reese, as Executrix of David F. Reese, Deceased, Respondent, v. James Pringle, Defendant, and Miller Place Corporation, Appellant.
    Argued February 18, 1947;
    decided April 10, 1947.

      Archie E. Brin for defendant-appellant.

      George A. Boland for respondent.
   Judgment and order reversed and motion for summary judgment denied, with costs in all courts to the defendant-appellant. We think issues are presented that can be composed only by a trial. No opinion.

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


text:
    Josephine Huisward et al., Respondents, v. Good Humor Corporation, Defendant, and Westchester Street Transportation Company, Inc., Appellant.
    Argued February 19, 1947;
    decided April 10, 1947.

      Addison B. Scoville and A. G. Mayo for appellant.

      Joseph G. Saile, Thomas N. Fasso and Thomas J. O’Neill, for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Peter Necolayff, as Administrator of the Estate of Frances Necolayff, Deceased, Respondent, v. Genesee Hospital, Appellant.
    Argued February 17, 1947;
    decided April 10, 1947.

      Robert G. Wmchell for appellant.

      Harry A. Sessions for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Victor A. Carinci, Respondent, against Pittston Stevedoring Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued February 19, 1947;
    decided April 10, 1947.

      S. Chandler Fraser for appellants.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum, Wendell P. Brown and Theodore M. Schwarts of counsel), for respondent.
   Ord'er affirmed, with costs; no opinion.

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


text:
    In the Matter of Salvatore J. Roccaforte, Appellant, against John F. O’Connell et al., as Members of the New York State Liquor Authority, Respondents.
    Argued February 17, 1947;
    decided April 10, 1947.

      Milton H. Friedman for appellant.

      Alvin McKinley Sylvester for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Fuld, JJ.


text:
    James F. Egan, Public Administrator of the County of New York, as Administrator of the Estate of Marcelino Lopez, Deceased, Appellant, v. National Transportation Co., Inc., et al., Respondents.
    Argued February 20, 1947;
    decided April 10, 1947.

      John F. Mulvey and John Bar sha for appellant.

      Joseph F. Murray and James A. Doherty for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thachee, Dye and Fttld, JJ.


text:
    Giuseppi Langelotti, Plaintiff, v. City of New York, Respondent; Dominick Coppola, Defendant, and Williams-Bauer Corporation, Impleaded Defendant-Appellant.
    Argued February 24, 1947;
    decided April 11, 1947.

      Emanuel Tacker for appellant.

      Charles E. Murphy, Corporation Counsel (Stanley Buchsbaum and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bernard Peyton, Individually and as Ancillary Executor of Anne duPont Peyton, Deceased, Respondents, v. Robert E. Coulson et al., Individually and as Trustees under the Will of William C. Peyton, Deceased, Appellants.
    Argued February 26, 1947;
    decided April 11, 1947.

      Louis Connick, Robert E. O’Brien and David S. Junker for appellants.

      Otis T. Bradley, Charles Poletti, Ferdinand J. Wolf and William R. Meagher for respondents.
   Order affirmed, with costs. Questions certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Russian Kretchma, Inc., Respondent. Edward Corsi, as Industrial Commissioner, Appellant.
    Argued February 20, 1947;
    decided April 11, 1947.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran, Wendell P. Brown and Otto W. G. Mar guard of counsel), for appellant.

      Henry Fogler and Samuel E. Miller for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Mark Matthews, as Administrator of the Estate of Charles Matthews, Deceased, Respondent, v. State of New York, Appellant.
    (Claim No. 27739.)
    Argued February 26, 1947;
    decided April 11, 1947.

      Nathaniel L. Goldstein, Attorney-General (John B. Davison and Wendell P. Brotvn of counsel), for appellant.

      Benedict 8. Bosenfeld, Albert Jakobson and Bernard Meyer-son for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Childs Company et al., Appellants. Michael J. Murphy, as Acting Industrial Commissioner, Respondent.
    Argued February 20, 1947;
    decided April 11, 1947.

      Samuel S. Allan and Lester Samuels for appellants.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Cur-ran, Wendell P. Brown and Otto W. G. Mar guard of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thaoheb, Dyb and Fuhd, JJ.


text:
    Gerald Wilber, an Infant, by Evelyn Wilber, His Guardian ad Litem, Appellant, v. City of Binghamton, Defendant, and Board of Education of the City of Binghamton, Respondent.
    Argued February 24, 1947;
    decided April 11, 1947.

      Riley 5. Heath for appellant.

      Donald W. Kramer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Rhodes Preparatory School, Respondent, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Appellants.
    Argued February 25, 1947;
    decided April 11, 1947.

      William E. Grady, Jr., and Philip Feldblum for appellants.

      John J. Mooney and Robert J. Fitzsimmons for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    City Bank Farmers Trust Company, as Substituted Trustee under Trusts Created by Agreement with Ovide De St. Aubin, et al., for the Benefit of Marion De St. Aubin, Respondent, v. Ovide De St. Aubin, Jr., Individually and as Executor of Ovide De St. Aubin, Deceased, et al., Appellants; Ovide De St. Aubin, Jr., Individually and as Executor of Percival De St. Aubin, Deceased, et al., Respondents.
    Argued February 26, 1947;
    decided April 11, 1947.

      J. Harlin O’Connell and Aloysius F. Schaeffner for Alice Spengel, appellant.

      Herbert C. Penis for Ovide De St. Aubin, Jr., as Executor of Percival De St. Aubin, appellant.

      John F. Le Viness, Jr., and W. H. Dannat Pell for respondents.
   Judgment affirmed, with costs to all parties appearing by separate attorneys and filing separate briefs, payable out of the fund. No opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and Ftjld, JJ.


text:
    The People of the State of New York ex rel. Leo Fellman, Appellant, against John F. Foster, as Warden of Auburn State Prison, Respondent.
    Argued February 21, 1947;
    decided April 11, 1947.

      Louis Kaye for appellant.

      Nathaniel L. Goldstein, Attorney-General (William 8. Elder, Jr., Wendell P. Brown and Patrick E. Clune of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Loitghban, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Fuld, JJ.'


text:
    Fred T. Ley, Appellant v. Fred T. Ley & Co., Inc., Respondent.
    Argued February 24, 1947;
    decided April 11, 1947.

      David B. Landis and Boss W. Lynn for appellant.

      Beynold Drews and Francis B. TJpham, Jr. for respondent
   Judgment affirmed, without costs; no opinion.

Concur; Loughran, Ch. J., Lewis, Conway, Desmond* Thaoheb, Dye and Fuld, JJ.


text:
    Louis Goldberger, Respondent, v. Cranford Defense Housing Corporation, Appellant.
    Submitted February 21, 1947;
    decided April 11, 1947.

      Paul O’Dwyer and Harold A. Lobar for appellant.

      Doris I. Byrne and Leo EcJcman for respondent.
   Appeal dismissed, with costs upon the ground that the order does not finally determine the action within the meaning of the Constitution. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Froio, Appellant.
    Argued February 20, 1947;
    decided April 11, 1947.

      Bartle Gorman and J. Walter Augar for appellant.

      Earle G. Bastow, District Attorney {Joseph A. Page of counsel), for respondent.
   Judgments reversed and a new trial ordered on the ground that it was not established beyond a reasonable doubt that defendant was in possession or control of the premises on March 11, 1945, or that he had knowledge that gambling was being carried on in the premises on that date. No opinion..

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


text:
    I. B. Miller Contracting Corp., Respondent, v. B. Turecamo Contracting Co., Inc., et al., Appellants, and Triborough Bridge Authority, Impleaded Defendant-Respondent.
    Argued February 24, 1947;
    decided April 11, 1947.

      Chester B. McLaughlin, Lester D. Stickles and William Mertens, Jr., for appellants.

      Joseph Feldman, Louis Rosenberg and Irwin E. Rosenberg for plaintiff-respondent.

      Charles E. Murphy, Corporation Counsel (Seymour B. Quel of counsel), for Triborough Bridge Authority, impleaded defendant-respondent.
   Judgment affirmed, with costs to each respondent; no opinion.

Concur: Loughran, Ch. • J., Lewis, Conway, Desmond, Dye and Fitld, JJ. Taking no part: Thacher, J.


text:
    Angelina Ciarlo et al., Respondents, and Frances A. Ciarlo, Individually, Appellant, v. New York City Employees’ Retirement System, Appellant and Respondent.
    Argued February 25, 1947;
    decided April 11, 1947.

      Charles E. Murphy, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for defendant-appellant and respondent.

      Michael F. Pinto, Benjamin F. Karpay and Benjamin D. Stein for Frances A. Ciarlo, individually, appellant, and for Frances A. Ciarlo, as guardian, respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    City of Yonkers, Respondent, v. Eugenia Leone, Appellant.
    Argued February 26, 1947;
    decided April 11, 1947.

      Sylvester W. Del Bello for appellant.

      John E. Galloway, Jr., Corporation Counsel (John Preston Phillips of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anastasia McC. Maloney, as Administratrix of the Estate of John T. McCarty, Deceased, Appellant, v. State of New York, Respondent. Blanche Stevens, as Administratrix of the Estate of Eleanor A. K. Gokey, Appellant, v. State of New York, Respondent.
    (Claim No. 27499.)
    (Claim No. 27500.)
    Argued February 21, 1947;
    decided April 11, 1947.

      Carl L. McMahon and Theodore A. Knapp for appellants.

      Nathaniel L. Goldstein, Attorney-General (Francis E. Dorsey, Wendell P. Brown, Arthur W. Mattson and Walter A. Fullerton of counsel), for respondent.
   Judgments affirmed, without costs; no opinion.

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


text:
    Lawrence Harris, Respondent, v. Walter B. Gladstone, Appellant. Nevin Reimel, Respondent, v. Walter B. Gladstone, Appellant. Wilma Reimel, Respondent, v. Walter B. Gladstone, Appellant.
    Argued February 24, 1947;
    decided April 11, 1947.

      Harold L. Moskowits and Leo Wiener for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Albert Schleicher, Appellant.
    Argued February 25, 1947;
    decided April 11, 1947.

      Robert Konove and William Gold for appellant.

      Samuel J. Foley, District Attorney (George Tilzer and Herman J. Fliederblum of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Morris W. Taub et al., Respondents, v. Josephine G. Braun, Appellant.
    Submitted April 7, 1947;
    decided April 11, 1947.

      Joseph M. Schwarts for motion to dismiss appeal.

      John O’Brien for motion for enlargement of time.
   Motion to dismiss appeal granted and appeal dismissed, with costs, and $10 costs of motion. Motion for enlargement of time denied.


text:
    Anne Dignam, Respondent, v. Great Atlantic and Pacific Tea Company et al., Appellants.
    Submitted April 7, 1947;
    decided April 15, 1947.

      Leon Wagman for motion.

      Murray G. Spett and Abraham Shapiro opposed.
   Motion denied, with $10 costs.


text:
    The People of the State of New York, Respondent, v. Joseph Sanchez, Appellant.
    Argued February 27, 1947;
    decided April 17, 1947.

      John F. McNulty for appellant.

      John 8. Marsh, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    Samuel Field, Appellant, v. Manufacturers Trust Company, Respondent.
    Argued February 27, 1947;
    decided April 17, 1947.

      Walter F. Doyle and 1. Maurice Wormser for appellant.

      Archie B. Morrison, John D. Lynn, Daniel Miner and William T. Rogers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Homer E. Peters et al., Surviving Partners of the Firm of McClung, Peters and Simon, Respondents. John E. Bachmann, as Receiver, Appellant.
    Argued February 28, 1947;
    decided April 17, 1947.

      I. Arnold Boss for appellant.

      Charles B. Sullivan for respondents.
   Orders modified in accordance with the memorandum herein, and, as so modified, affirmed, without costs. The answer interposed by the receiver-appellant pleads a denial of those allegations contained in paragraph 20 of the petition herein which alleged that the sum of $726.83 was expended by the petitioners in the prosecution of the claim of Clemente Construction Co., Inc., against the State of New York. Finding in the record no evidence which supports disbursements by the petitioners in that amount we remit the proceeding in that regard to the Special Term for the purpose of receiving any evidence relevant to the issue of fact thus tendered which may be offered by the petitioners and the receiver-appellant. So far as the orders fix and determine the amount of the attorneys’ lien at $23,481.58, they should be affirmed. This modification is without costs. No opinion.

Concur: Lottghran, Oh. J., Lewis, Conway, Desmond, Teacher, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Anthony Costarella, Appellant.
    Argued January 9, 1947;
    decided April 17, 1947.

      Frank Serri for appellant.

      Framk 8. Kogan, District Attorney (Whitman Knapp, Richard G. Denzer and David Du Viver of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughean, Ch. J., Lewis, Desmond, Thaqher, Dvr and Fuld, JJ. Taking no part: Conwat, J.


text:
    Jennie B. Coger, an Infant, by Jerry Coger, Her Guardian ad Litem, et al., Appellants, v. Long Island Railroad Company, Respondent.
    Argued February 27, 1947;
    decided April 17, 1947.

      Harvey 1. Harris and Jeannette 8. Dolgin for appellants.

      Ralph E. Hemstreet and Louis J. Carruthers for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, on the ground that the record presents jury questions as to negligence and contributory negligence. Plaintiffs were not trespassers as matter of law. (Zambardi v. South Brooklyn Ry. Co., 281 N. Y. 516.) No opinion.

Concur: Loughban, Ch. J., Conway, Desmond, Thacheb, Dye and Ftjld, JJ. Dissenting: Lewis, ,J.


text:
    Jerome Myer et al., as Trustees for Julius Myer, Under a Trust Indenture Dated April 21, 1942, Appellants, v. Abraham Myer et al., Respondents.
    Argued April 7, 1947;
    decided April 17, 1947.

      Jay Leo Rothschild and Stanley L. GlucTc for appellants. Abraham J. Ealprin and Sidney R. Rossiter for Abraham Myer and others, respondents.

      llo Orleans for Julius Myer by Louis J. Lefkowitz, as committee, and another, respondents.
   Orders affirmed, with costs. Questions certified answered in the negative. No opinion.

Concur: Lotjghraw, Ch. Ju, Lewis, Cowway, Desmowd, Thaoher, Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Floyd E. Martin, Appellant.
    Argued February 25, 1947;
    decided April 17, 1947.

      Joseph A. Haney and J. Willis Barrett for appellant.

      Marshall E. Livingston, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant and Respondent, v. Frank N. Taras, Respondent and Appellant.
    Argued February 27, 1947;
    decided April 17, 1947.

      Charles P. Sullivan, District Attorney (Henry W. Schoher of counsel), for People of the State of New York, appellant and respondent.

      Joseph Lonardo for defendant, respondent and appellant.
   Upon appeal by the People: Appeal dismissed. Upon appeal by the defendant: Order affirmed. No opinion.

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


author: Per Curiam.

text:
    Philip B. Fleming, as Temporary Controls Administrator Substituted for Paul Porter, Price Administrator of the Office of Price Administration, Respondent, v. William Russell, Doing Business as Long Island Potato Exchange, Appellant.
    Argued February 20, 1947;
    decided April 17, 1947.

      Otho S. Bowling for appellant.

      Arthur G. Silverman, Kenneth V. Fisher, William E. Bemy, David London and Albert M. Dreyer for respondent.
   Per Curiam.

The judgment of the Appellate Division must be affirmed upon the authority of Testa v. Katt (330 U. S. 386). In view of this decision it was not necessary to decide whether the statute was penal in the public international, private international or any other sense, because the courts of a State have no discretion under the supremacy clause of the Federal Constitution to decline to entertain a suit for a penalty imposed by a Federal statute unless the Congress has limited the remedy to the Federal courts.

The judgment should be affirmed, with costs.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb, Dye and Ftjld, JJ., concur.

Judgment affirmed.


text:
    In the Matter of the Probate of an Instrument Purporting to be the Will of Timothy F. McCarthy, Deceased. Beatrice McCarthy, Appellant; James F. Egan, as Public Administrator of New York County, et al., Respondents. In the Matter of the Estate of Timothy F. McCarthy, Deceased. Beatrice McCarthy, Appellant; James F. Egan, as Public Administrator of New York County, et al., Respondents.
    Argued February 27, 1947;
    decided April 17, 1947.

      Emmet L. Holbrooh and Edward Joseph for appellant.

      Joseph T. Arenson, Jacob I. Goodstein and Joseph A. Cox for respondents.
   Orders affirmed, with costs payable out of the estate, to ail parties appearing separately and filing separate briefs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Thacheb and Dye, JJ. Dissenting: Conway, Desmond and Ftjld, JJ.


text:
    In the Matter of George J. Gillespie et al., Constituting the the Board of Water Supply of the City of New York, Appellants, to Acquire Real Estate in the County of Ulster. Andrew J. Snyder et al., Respondents. (Consolidated Rondout Riparian Section Nos. 3, 4, 5 and 6.)
    Argued February 27, 1947;
    decided April 17, 1947.

      Charles E. Murphy, Corporation Counsel (Herman E. Gottfried and Francis T. Murray of counsel), for appellant.

      Kenneth 8. MacAffer and Lloyd B. Le Fever for respondents.
   Order affirmed, with costs. First question certified answered in the affirmative. Second question certified answered in the negative. No opinion.

Concur: Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ. Taking no parts' Loughran, Ch. J.


text:
    Theodore Hart, Appellant, v. New York Life Insurance Company et al., Respondents, et al., Defendants.
    Argued November 26, 1946;
    decided April 17, 1947.

      Harold R. Medina, William T. Gilbert, Richard T. Davis and Harmon Ackerman for appellant.

      Raeburn W. Jenkins and Ferdinand H. Pease for New York Life Insurance Company, respondent.

      Charles Ettinger and L. Laivrence Green, guardian ad litem of Wini Kron, respondents.

      Arthur J. O’Leary, Emil Goldmark and Howard E. Reinheimer for Richard Rodgers and William H. Kron, individually and as executors of the estate of Lorenz Hart, deceased, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghban, Ch. J., Desmond, Thacheb and Dye, JJ. Dissenting: Lewis, Conway and Fold, JJ.


text:
    Stanley Clarke, as Trustee of Associated Gas and Electric Company, Appellant, v. Adolph Greenberg et al., Respondents.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Motion by respondents for reargument denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 146.]


text:
    Edward Mayer, Appellant, v. Josef Weiss, Respondent.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Motion for an order vacating and setting aside the order of the Court of Appeals, dated February 18, 1947, dismissing the appeal herein for failure to prosecute and permitting appellant herein to further prosecute this appeal, etc. granted, and order vacated on payment of $10 costs. Case set down for argument during May, 1947, session.


text:
    Anna Curcillo et al., Respondents, v. City of Yonkers, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      John H. Galloway, Jr., Corporation Cownsel (John Preston Phillips of counsel), for motion.

      Frank J. Hand- opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the'Rules of the Court of Appeals are filed.


text:
    Herman C. Jongebloed, as Administrator of the Estates of Kathryn Jongebloed, et al., Deceased, Appellant, v. Erie Railroad Company, Respondent.
    Submitted April 7, 1047;
    decided April 17, 1947.

      Arthur A. Beaudry for motion.

      William E. Timbers opposed.
   Motion denied, without costs on the ground that the appeal lies as of right.


text:
    In the Matter of the Will of Morris Roth, Deceased. Pearl Roth et al., Appellants; Frederick Roth et al., Respondents.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Joseph Boeder for motion.

      Lloyd B. Kanter, Alvin 8. Bosenson, Stuart H. Steinbrinlc, Hyman I. Barnett, Harry Mitchell, Sylvia Miller and Herman S. Bachrach as special guardian, opposed.
   Motion denied, with $10 costs.


text:
    William Murrain, as Administrator of the Estate of Martha Murrain, Deceased, et al., Appellants, v. Wilson Line, Inc., et al., Respondents.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Motion by appellants for reargument denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 845.]


text:
    The People of the State of New York, Respondent, v. Anthony Fernandez, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Frank 8. Hogan, District Attorney (Whitman Knapp of counsel), for motion.
   No one opposed.

Motion granted and appeal dismissed.


text:
    In the Matter of Mortgage Commission of the State of New York with Respect to a Mortgage Covering Premises 284 Eastern Parkway, Borough of Brooklyn, County of Kings, Guaranteed by Lawyers Title and Guaranty Company. (Mortgage No. 285,017.) In the Matter of the Accounting of Brooklyn Trust Company, as Trustee under a Declaration of Trust Dated February 18, 1939, Respondent. Robert E. Dineen, Superintendent of Insurance of the State of New York, as Successor to the Mortgage Commission of the State of New York and as Liquidator of Lawyers Title and Guaranty Company, Appellant; Frank C. Moore, as Comptroller of the State of New York, et al., Respondents.
    Submitted April 7, 1947;
    decided April 17, 1947.

      J. Francis Lynch and Thomas D. Austin for motion.

      Henry J. Walsh, Jr., and Walter F. O’Malley opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    Hanna A. Verstandig, Respondent, v. Babbette Schlaffer, Individually and as Executrix of Wolfgang Schlaffer, Deceased, et al., Appellants.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Return of remittitur requested and when returned it will be amended to provide that the judgments are reversed and a new trial granted, with costs to abide the event, solely upon the question whether the parties can be restored to their status quo and, if so, upon what terms rescission shall be decreed. [See 296 N. Y. 62.]


text:
    Harold Crawford, Respondent, v. County of Sullivan, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Elbert N. Oakes for motion.

      John A. Bonomi opposed.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    Manufacturers & Traders Trust Company, Appellant, v. Samuel Sapowitch, as Administrator of the Estate of George Simon (also known as George Shuman), Deceased, et al., Defendants, and Fidelity and Casualty Company of New York et al., Interveners, Respondents.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Motion by respondents for reargument denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 226.]


text:
    In the Matter of the Claim of Agnes H. Glavy, Respondent, against Bethlehem Steel Company, Appellant. Workmen’s Compensation Board, Respondent.
    Submitted April 7, 1947;
    decided April 17, 1947.

      William M. Fay and Solon J. Stone for motion.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy and Boy Wiedersum of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    Donald O’Toole, Respondent, v. Michael S. Jacobs, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Myron Gould and Sol Strcmss for motion.

      Elliot B. Paley and J oseph W. Rosenberg opposed.
   Motion dismissed, without costs, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of the Claim of Linnie Crofts, Respondent, against Lewis C. Ledyard, 3rd, et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Charles P. Barre for motion.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polanshy and Roy Wiedersum of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    St. William’s Church, Raquette Lake, New York, Respondent, v. People of the State of New York, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Motion by respondent for reargument or, in the alternative, modification of the decision of the Court of Appeals, denied, with $10 costs and necessary printing disbursements. [See 296 N. Y. 861.]


text:
    In the Matter of Thomas F. Finn et al., Appellants, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Harry F. Karst and Alvin McKinley Sylvester for motion.

      Benjamin Rubenstein opposed.
   Motion denied, with $10 costs to the State Liquor Authority upon the ground that an undertaking has been filed and served.


text:
    In the Matter of the Claim of Katherine Meissner, Respondent, against Good Samaritan Hospital of Suffern et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Charles P. Barre for motion.
   No one opposed.

Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    The People of the State of New York, Respondent, v. Carl P. Spencer, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Frank S. Hogan, District Attorney (Whitman Knapp of counsel), for motion.

      Carl P. Spencer, in person, opposed.
   Motion granted and appeal dismisséd upon the ground that no appeal lies as of right from the order of the Appellate Division (Code Grim. Pro., § 520, subd. 3).


text:
    United States Fidelity & Guaranty Company, Respondent, v. Triborough Bridge Authority et al., Respondents, and United States of America, Intervener, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      William B. Shelton and John J. O’Connor for motion.
    , John F. X. McGohey, United States Attorney for Southern District of New York (John B. Creegan of counsel), opposed.
   Motion denied, with $10 costs.


text:
    Pearl Munzer, Appellant, v. Russell E. Blaisdell (Superintendent of Rockland State Hospital) et al., Respondents.
    Argued April 7, 1947;
    decided April 17, 1947.

      Pearl Munzer, in person, for motion.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Ruth Kessler Toch of counsel), opposed.
   Motion dismissed on the ground that the Court of Appeals has no jurisdiction to award the relief requested.


text:
    Leo Giessler et al., Respondents, v. American Brass Co., Inc., Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Edwin B. Goddin and Edwin C. Morsch for motion.

      George P. Stier opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, on the ground that the proposed appeal is not from a judgment finally determining the action within the meaning of the Constitution.


text:
    H. Bennett Salomon, Appellant, v. Robert F. Mahoney, Respondent.
    Submitted April 7, 1947;
    decided April 17, 1947.

      Menahem Stim for motion.

      Sidney S. Levine opposed.
   Motion denied, with $10 costs.


text:
    The People of the State of New York, Respondent, v. Frank Bonino, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.
   Motion for reargument denied. [See 291 N. Y. 541.]


text:
    Albert E. McKenzie, as Trustee in Bankruptcy of Graves-Quinn Corporation, Respondent, v. Irving Trust Company, Appellant.
    Submitted April 7, 1947;
    decided April 17, 1947.

      David Mor gulas for motion.

      William A. Onderdonh, and Stephen G. Kent opposed. •
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Donald E. Crimi, Appellant, against Warden of Attica State Prison, Respondent.
    Submitted April 14, 1947;
    decided April 17, 1947.

      Donald E. Grimi, in person, for motion.'

      Nathaniel L. Goldstein, Attorney General (Emil L. Cohen of counsel), opposed.
   Motion dismissed upon the ground that the orders sought to be appealed from do not finally determine the proceeding in which they were entered.


text:
    Robert Benbenek, an Infant, by Isabelle J. Benbenek, His Guardian ad Litem, et al., Respondents, v. Buffalo Sewer Authority, Appellant.
    Submitted April 14, 1947;
    decided April 17, 1947.

      Clayton M. Smith and Fred Van Aernam for motion.

      Alfred L. Hetselt opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    Robert T. Johnson, as Administrator of the Estate of Robert T. Johnson, Jr., Deceased, Respondent, v. Hempstead Bus Corp., Appellant.
    Submitted April 14, 1947;
    decided April 17, 1947.

      Philip Huntington and Henry Vollmer, Jr. for motion.

      Ralph Stout and Gustave G. Rosenberg opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, unless within fifteen days all papers required by rule 21 (subd. b) of the Rules of the Court of Appeals are filed.


text:
    The People of the State of New York v. Leonard Gerschinsky (Shinsky).
    Submitted April 14, 1947;
    decided April 17, 1947.
   Motion for reargument etc. denied. [See 281 N. Y. 581.]


text:
    G. Gordon Rignel, Respondent, v. Arthur V. Simpson et al., Appellants, et al., Defendants.
    Submitted April 14, 1947;
    decided April 17, 1947.

      Valentine E. O’Grady for motion.
   No one opposed.

Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless within ten days after service of a copy of this order with notice of entry thereof the defendants serve and file an undertaking and pay $10 costs, in which event the motion is denied.


text:
    The People of the State of New York, Respondent, v. Nicholas Geniale, Appellant.
    Argued April 8, 1947;
    decided April 18, 1947.

      Joseph Lonardo for appellant.

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
   Judgment affirmed; no opinion.

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