author:
      Per Curiam.
     Rippey, J.

text:
    Louie Scherini, Appellant, v. Titanium Alloy Company, Respondent.
    Submitted June 19, 1941;
    decided October 23, 1941.

      William L. Clay for appellant.
    The Workmen’s Compensation Law (Cons. Laws, ch. 67), as amended, does not cover, or apply to, any case involving partial disability due to silicosis or other dust disease. (Barrencotto v. Cocker Saw Co., 266 N. Y. 139.) In enacting the amendment (L. 1936, ch. 887) to the Workmen’s Compensation Law the Legislature did not provide a system of compensation for injury to workmen which is exclusive of every other remedy or right of action by an employee or any other person as it was empowered to do by section 19 of article 1 of the Constitution, but instead has expressly limited the application of the act. (Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Matter of Sweeting v. American Knife Co., 226 N. Y. 199; Swan v. Woolworth Co., 129 Misc. Rep. 500; Connors v. Semet-Solvay Co., 94 Misc. Rep. 405.) If the effect of article 4-A of the Workmen’s Compensation Law is construed to mean that persons contracting silicosis or other dust disease causing partial disability are barred from obtaining compensation under the Compensation' Law, at common law, or in any other manner whatsoever, the act is unconstitutional in so far as it affects such persons. (New York Central R. R. Co. v. White, 243 U. S. 188; Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; People v. Schweinler Press, 214 N. Y. 395.)

      Ralph W. Dox and Ulysses S. Thomas for respondent.
    Article 4-A of the Workmen’s Compensation Law deprives plaintiff of any right to maintain the action. (Powers v. Porcelain Insulator Corp., 285 N. Y. 54; Repka v. Fedders Mfg. Co., 239 App. Div. 271; Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Matter of Kiriloff v. A. G. W. Wet Wash Laundry, 257 App. Div. 37; 282 N. Y. 466; Matter

      of Petrie, 215 N. Y. 335; Matter of Schurick v. Bayer Co., 272 N. Y. 217; Matter of Cole, 235 N. Y. 48; Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287.) Sections 66 and 72 of article 4-A of the Workmen’s Compensation Law are constitutional. (Powers v. Porcelain Insulator Corp., 285 N. Y. 54; Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Fearon v. Treanor, 272 N. Y. 268; 273 N. Y. 645.)

      Thomas G. Rickert and Abel Klaw for E. I. du Pont de Nemours & Company, Inc., amicus curise.

    The complaint shows that this action is based upon either an accidental injury or an occupational disease within the meaning of the Workmen’s Compensation Law. (Matter of Lerner v. Rump Bros., 241 N. Y. 153; Barrencotto v. Cocker Saw Co., 266 N. Y. 139; Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 318.) The Workmen’s Compensation Law, as amended, applies to the claim set forth in the complaint herein so as to preclude the maintenance of this action. (Repka v. Fedders Mfg. Co., 239 App. Div. 271; 264 N. Y. 538; Powers v. Porcelain Insulator Corp., 285 N. Y. 54; Shanahan v. Monarch Engineering Co., 219 N. Y. 469; del Busto v. du Pont de Nemours & Co., 167 Misc. Rep. 920; Moffet v. Harbison-Walker Refractories Co., 339 Penn. St. 112.) Both the amendments are valid and constitutional. (New York Central R. R. Co. v. White, 243 U. S. 188; Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514; Shanahan v. Monarch Engineering Co., 219 N. Y. 469; Morris v. Muldoon, 190 App. Div. 689; 229 N. Y. 611; Farnum v. Garner Print Works & Bleachery, 184 App. Div. 911; 229 N. Y. 554; Repka v. Fedders Mfg. Co., 239 App. Div. 271; 264 N. Y. 538.)
   Per Curiam.

The suit is against an employer by a workman who alleges that while working in the employer’s plant, plaintiff sustained injuries to his health and aggravation thereof,” that these injuries were not accidental in character, and' that they were caused by the employer’s negligence and by his violation of various statutes in failing to keep the plant free of smoke, noxious gases and other impurities. The complaint, further alleges that section 3, subdivision 2, of the Workmen’s Compensation Law (Cons. Laws, ch. 67), as amended by chapter 254 of the Laws of 1935, and article 4-A of that act, as added by chapter 887 of the Laws of 1936, or either or both ” of those enactments, are unconstitutional and void, as leaving without any remedy workmen who suffer injuries from impure air conditions through an employer’s fault, unless permanent and total disability results therefrom. The courts below have granted defendant’s motion under Rules of Civil Practice, 107, subdivision 2, for a dismissal of the complaint on the ground that the court has not jurisdiction of the subject of the action because the alleged cause of action comes exclusively within the coverage of the Workmen’s Compensation Law. While the complaint says nothing as to the dates of plaintiff’s employment by defendant, the dates, as supplied by defendant’s affidavit, and not disputed, are from November 5, 1936, to February 28, 1938. Nowhere in the complaint or affidavits is there any allegation that plaintiff has been disabled, partially or totally. In the absence of such an allegation, we of course cannot pass on the validity of provisions of article 4-A of the Workmen’s Compensation Law that there shall be no compensation for partial disability due to dust diseases (§ 66), and that the liability of an employer prescribed by that article shall be exclusive and in place of any other liability whatsoever (§ 72).

Furthermore, even if the papers on this motion sufficiently alleged that plaintiff had been partly disabled by a dust disease through defendant’s fault, we would not be in a position to pass on plaintiff’s contention that sections 66 and 72 of the Workmen’s Compensation Law are unconstitutional in so far as they provide that an employee shall have no remedy or recovery against his employer for a partial disability resulting from dust diseases. Whether this contention be correct or not, plaintiff cannot bring an action at law to recover for such a disability. Even if sections 66 and 72 were held to be invalid, plaintiff’s sole remedy would still be in proceedings under the Workmen’s Compensation Law and his rights to compensation would be governed by the provisions of that statute, as it stood before sections 66 and 72 were enacted, as to compensation for disability from occupational diseases.

The judgment should be affirmed, "with costs.

Rippey, J.

(dissenting). Plaintiff brought this action to recover damages for injuries alleged to have been caused by defendant’s violation of various statutes designed to protect workmen from injury and disease due to the inhalation of gases, fumes and dust. The complaint alleges that the injuries suffered by plaintiff were not within the purview of the Workmen’s Compensation Law and that the Workmen’s Compensation Law is unconstitutional in so far as it attempts to deprive of any remedy a person who suffers injuries to his lungs through his employer’s negligence and violation of statute unless that person is totally disabled.

Defendant’s motion to dismiss the complaint on the ground that the court did not have jurisdiction of the subject-matter of the action (Rules Civ. Prac. rule 107, subd. 2) was granted at Special Term. The Appellate Division, fourth department, has unanimously affirmed the judgment of dismissal without opinion on the authority of del Busto v. Du Pont de Nemours & Co. (259 App. Div. 1070). In that case judgment was granted upon the pleadings to dismiss the complaint upon the court’s construction that the plaintiff sued for injuries arising out of inhalation of dust. It was held that section 72 of the Workmen’s Compensation Law provides the sole and exclusive remedy for persons suffering from silicosis or other dust disease and that the amendment, article 4-A, sections 65-72, of the Workmen’s Compensation Law (L. 1936, ch. 887), barring a claim for compensation for partial disability, was constitutional even though it left the workman partially disabled by silicosis or other dust disease without a remedy, no matter how flagrant the abuse which disabled him. Motion was made for leave to appeal to this court and the motion was denied (284 N. Y. 817). We neither rejected nor accepted the conclusion reached in that case by the Appellate Division but denied the motion on the ground that if any substantial constitutional question was involved the plaintiff might appeal as of right. In the case at bar, plaintiff has appealed to this court pursuant to- section 588, subdivision 1, of the Civil Practice Act, asserting that there is directly involved the constitutionality of sections 66 and 72 of the Workmen’s Compensation Law.

Three problems are presented: (1) Whether sections’^66 and 72 of the Workmen’s Compensation Law when read together bar any recovery for partial disability due to silicosis or other dust disease: (2) if so, whether such an enactment constituted a valid and constitutional exercise of the "egislative power; and (3) if the act is unconstitutional in that respect, whether a common law action for damages will lie or whether the Workmen’s Compensation Law1 as it existed prior to the 1936 amendment remains in force and provides an exclusive remedy before the Industrial Board.

Article 1, section 18, of the New York Constitution (formerly article 1, section 19) provides: Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees.; or for the payment * * * of compensation for injuries- to employees or for death of employees resulting from such injuries * * *; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries * *

The Workmen’s Compensation Law as it existed prior to 1935 made no provision for compensation for silicosis' or other dust disease. Section 10 provided generally for liability of the employer for compensation. Section 11 provided that the liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever, to such employee * * * or any one otherwise entitled to recover damages, at common law or otherwise on account of such injury or death * * That provision was construed to mean that the liability of the employer prescribed in the act was exclusive only in so far as liability was asserted for an injury or disease covered by the act (Barrencotto v. Cocker Saw Co„, 266 N. Y. 139). Since the act did not cover silicosis or other dust disease, we held that an action at law to recover damages for injury, death or disease from dust would lie. As a result of that decision, the act was amended in 1935 so as to cover disability from any and all occupational diseases contracted in hazardous employment where the injurious exposure occurred on or after September 1, 1935 (Workmen’s Compensation Law, § 3, subd. 2, T 28; L. 1935, ch. 254).

In 1936 silicosis and other dust diseases were excepted from the general provisions of the act and a new article (4-A) was added to the Workmen’s Compensation Law dealing with dust diseases as a special problem (L. 1936, ch. 887). It was therein provided that compensation shall not be payable for partial disability due to silicosis or other dust disease ” (§ 66) and “ the liability of an employer prescribed by this article shall be exclusive and in place of any other liability whatsoever, at common law or otherwise, to such employee * * * on account of any injury, disability, or death, caused by the inhalation of harmful dust * * (§ 72). The two provisions last above quoted are the ones attacked on this appeal.

Were we to construe these sections as denying any remedy whatever to workmen suffering partial disability from silicosis caused by the employer’s negligence, their invalidity would seem clear. The authority granted the Legislature was to enact laws for the payment of compensation for injuries and to make “ the right of such compensation, and the remedy therefor * * * exclusive ” (N. Y. Const, art. 1, § 18). The plan envisioned in the Constitution was one of give and take on the part of both employer and employee (Matter of Jensen v. Southern Pacific Co., 215 N. Y. 514, 526, 527; Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 478; New York Central R. R. Co. v. White, 243 U. S. 188). A remedy existed under the common law not alone for total disability; damages likewise were recoverable when only partial disability resulted. If totally disabled, the injured employee was required to give up his right to recovery under the common law but was given a remedy for compensation under the Workmen’s Compensation Law. If defendant’s contention is to prevail, the workman not only was compelled to give up his remedy under the common law when only partially disabled but to give up any remedy at all since the Workmen’s Compensation Law provides no remedy for his injury. Such a result is clearly in violation of article 1, sections 6 and 18, of the New York State Constitution and of the Fourteenth Amendment to the Constitution of the United States (Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 292-300; Matter of Jensen v. Southern Pacific Co., supra). A right of action is a property right (Pritchard v. Norton, 106 U. S. 124, 132) which may not be arbitrarily, interfered with and, though the form of remedy may be changed, a substantial right to redress by some effective procedure must be preserved (Gibbes v. Zimmerman, 290 U. S. 326, 332; Hardware Dealers Mut. Fire Ins. Co. v. Glidden Co., 284 U. S. 151, 158; Crane v. Hahlo, 258 U. S. 142, 147; Backus v. Fort Street Union Depot Co., 169 U. S. 557, 571; Iowa Central Ry. Co. v. Iowa, 160 U. S. 389, 393). By its express terms, article 1, section 18, of the Constitution preserves this principle of law intact.

In construing a statute, every presumption must be indulged in favor of its constitutionality and the courts will so interpret the language of the act that it may stand without conflict with the fundamental law, if it is possible to do so without offending the intention of the Legislature (People ex rel. Bridgeport Sav. Bank v. Feitner, 191 N. Y. 88; Matter of Sugden v. Partridge, 174 N. Y. 87; Germania Sav. Bank v. Village of Suspension Bridge, 159 N. Y. 362; Curtin v. Barton, 139 N. Y. 505; Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 N. Y. 132; People ex rel. Sinkler v. Terry, 108 N. Y. 1; United States Trust Co. v. United States Fire Ins. Co., 18 N. Y. 199). In seeldng out the intention of the Legislature from the act as a whole the courts are not bound to close their eyes to the consequences of the construction contended for (Ewen v. Thompson-Starrett Co., 208 N. Y. 245). It is to be presumed that the lawmakers did not intend an unjust, absurd or oppressive result (Flynn v. Prudential Ins. Co., 207 N. Y. 315; People v. Ahearn, 196 N. Y. 221).

In this era of enlightened social legislation it would be absurd to say that the Legislature has designed to create in this State a legion of industrial derelicts. Yet, this must of necessity result from construing article 4-A of the Workmen's Compensation Law as barring all those suffering partial disability due to silicosis from any remedy. By section 65 of the act it is declared to be the policy of the Legislature to prohibit through every lawful means available any requirement compelling an applicant for employment in harmful dust-generating industries to undergo a medical examination. Section 67 makes the employer liable in whose employment the employee was last injuriously exposed. Section 69 provides that no compensation shall be payable to an employee who falsely represents in writing that he has not previously been disabled from the disease which is the cause of disability or death. Thus, according to defendant's contentions, the employer may rid himself and all industry of liability by the simple expedient of discharging any employee who evidences any of the first symptoms of partial disability from the disease. Subsequent employers are relieved of liability by procuring from the applicant a written statement that he has not previously suffered the disability which caused his discharge, and, of course, he must so state if he is to be employed.

We are not here concerned with the wisdom of the legislation, but only with the intent of the Legislature in enacting the statute. The total absence of equity and justice in a statute as construed one way may very well compel a different interpretation. No other provision of the Workmen’s Compensation Law can be pointed to which takes away the remedy of a person partially disabled through either accidental injury or occupational disease. To construe article 4-A as defendant maintains would do violence to the fundamental and primary idea behind such statutes — to establish a system of insurance to protect society from the burden of disabled workmen, the employees’ share in the cost being reflected in wages and the employers’ share being carried as an operating expense (New York Central R. R. Co. v. White, 243 U. S. 188), would make it clearly unconstitutional and would fly in the face of the intent of the Legislature specifically and in clear and unambiguous language expressed. '

We hold that article 4-A is constitutional. It does not provide, however, for compensation for partial disability for injury. As to such disability the Legislature has not made that act the exclusive remedy for the person injured. As we held in the Barrencotto case (supra), the common law remedy for such an injury still remains. By the amendment, article 4-A, so far as the subject treated was concerned, all remedies under the Workmen’s Compensation Law as it previously existed were abolished. To hold the amendment constitutional it must be found that the Legislature intended to preserve for the injured workman his common law action if partial disability only resulted from injury. If the law is to be changed, that is the concern of the Legislature and no concern of the courts. With the opinion in the Barrencotto case before it the Legislature expressed its intent in language that is not only clear and understandable but in language that is not open to construction when it provided (§ 66) that compensation shall not be payable for partial disability due to silicosis or other dust disease.” It intended as a necessary consequence of that language that the common law right of action for injuries for partial disability should still exist. The intent so apparent cannot possibly be changed by any quibble over the meaning of the wording of section 72. Article 4-A excludes from section 3 of the Workmen’s Compensation Law all reference to dust diseases, disability or death from such diseases. In other words, it is a provision exclusive as to all such diseases. This is necessarily so since the Legislature at the time of the enactment of article 4-A inserted in section 3, subdivision 2, that that section shall not be construed to apply to any disability or death due to any disease described, in article four-a of this chapter ” (L. 1936, ch. 887, § 1). We held in the Barrencotto case that injury or death from silicosis was not accidental within the meaning of the Workmen’s Compensation Law. Consequently the law as it existed prior to the 1936 amendment, by express command of the Legislature, cannot under any contingency have any application to partial disability from .silicosis. The statute as it now exists expressly prevents an award by the Industrial Board for anything less than total disability due to silicosis (Workmen’s Compensation Law, § 66). _

It is difficult to find any warrant or authority for disposing of the appeal on a technical defect in pleading. Defendant’s motion to dismiss the complaint is on the specific ground that the court does not have jurisdiction of the subject-matter of the action (Rules Civ. Prac., rule 107, subd. 2). That was the only ground that was considered or could be considered in the lower courts. Plaintiff alleges that his injuries were such as were not within the purview of the. Workmen’s Compensation Law and that article 4-A of the Workmen’s Compensation Law is unconstitutional in so far as it prohibits the commencement of an action for negligence by, and, at the same time, fails to make provision for compensation for, persons who were employed subsequent to September 1st, 1935, and who suffered injuries to the lungs through the employer’s negligence or through the employer’s violation of statutory laws unless said person is permanently and totally disabled, and therefore, amounts to a deprivation of substantial rights of this plaintiff without due process of law * * The complaint contains allegations of injury and damage. On this motion, all facts alleged and all facts that can reasonably be implied must be considered as pleaded (Sage v. Culver, 147 N. Y. 241; Moss v. Cohen, 158 N. Y. 240). The fact that plaintiff is only partially disabled is sufficiently clear from the facts pleaded in the complaint for the purposes of this motion. The question of jurisdiction of the subject-matter is not dependent upon the state of facts which may appear in a particular case (Hunt v. Hunt, 72 N. Y. 217), nor upon the question whether the allegations of the complaint set out a good cause of action upon a subject of which the court has jurisdiction (Belden v. Wilkinson, 44 App. Div. 420, 422) ” (3 Carmody’s New York Practice, p. 2252). Since the complaint has not been attacked for insufficiency at any stage of the proceedings, we must assume that the complaint alleges a cause of action at common law (Westchester Lighting Co. v. Westchester County Small Estates Corp., 278 N. Y. 175, 178; Buttles v. Smith, 281 N. Y. 226, 237; Homin v. Cleveland & Whitehill Co., 281 N. Y. 484, 487) unless section 72 of the Workmen’s Compensation Law is held to bar such an action. If the complaint is technically defective, the defect may be cured_by amendment, but if, after a decision of the merits of the present appeal to this court, defendant fails to move against the complaint on the ground of its insufficiency, the defect in the pleading may be cured by the evidence upon the trial (Lounsbury v. Purdy, 18 N. Y. 515; Whittlesey v. Delaney, 73 N. Y. 571; Babbett v. Young, 51 N. Y. 238; Homin v. Cleveland & Whitehill Co., supra).

Unless barred by constitutional or statutory limitations upon our jurisdiction, I believe the constitutional question raised by the record here should be decided on the merits. In November, 1940, the limitations upon our jurisdiction compelled us to deny the motion to appeal to this court in the Del Busto case. Immediately thereafter litigants sought to have the question of the constitutionality of article 4-A determined on a direct appeal under section 588, subdivision 3, of the Civil Practice Act from a Special Term order dismissing a complaint. In spite of the fact that the parties sought by stipulation to eliminate every question except that of the constitutionality of the act, we were constrained to dismiss the appeal on the ground that the constitutional question was not the only question involved and jurisdiction was not conferred by that stipulation (Powers v. Porcelain Insulator Corp., 285 N. Y. 54). Although we are told that those were test cases and the present one is a test case and that many pending cases are awaiting disposition of the constitutional question by this court, it is now proposed to dispose of the case because of insufficiency of the complaint, a point which is not urged by defendant and which, whether urged or not, in my opinion is not here, and to intimate to the litigants that perhaps, in the distant future, we may consider the constitutional question if they pursue another route to this tribunal. Sometime the question here raised must be answered. In my opinion, the question which the parties seek to have decided is properly and necessarily here for our consideration and determination (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122, 131, 132; Matter of Davega-City Radio, Inc., v. State Labor Relations Board, 281 N. Y. 13, 19) and should be decided now.

The judgment appealed from should be reversed, with costs, and the motion denied.

Lehman, Ch. J., Loughran, Conway and Desmond, JJ., concur in opinion Per Curiam; Finch and Lewis, JJ., concur in result; Rippey, J., dissents in opinion.

Judgment affirmed.


source: Caselaw Access Project

author:
      Per Curiam.
     Conway, J.

license: Public Domain

text:
    In the Matter of Max Torchin et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. Robert H. Haskell et al., Respondents. In the Matter of Robert H. Haskell, Respondent. Max Torchin et al., Appellants; Francis D. McGarey, Respondent.
    Argued October 23, 1941;
    decided October 24, 1941.

      Charles H. Kelly and A. David Benjamin for appellants.
    The primary power to fill the vacancy was vested in the county committee newly elected at the primaries held on September 16, 1941. Its action was controlling over any action of all of its subordinate committees, including the executive committee. (Matter of Simpson v. Cohen, 173 Misc. 372; Matter of Grosser v. Cohen, 252 App. Div. 772; 275 N. Y. 440.) The meeting of the county committee held on. October 6, 1941, was a valid one and the nomination of appellant Miller thereat to fill the vacancy in the office of Surrogate was legal. (Matter of Joslin, 73 Misc. Rep. 354.)

      Israel Convisser, Marvin B. Amster and Louis P. Goldberg for Robert H. Haskell, respondent.
    The executive committee of the Kings county committee had the power to fill the vacancy for the office of Surrogate and its nomination of respondent Haskell for that office was effective. (Cons. Laws, ch. 17, § 131, subd. 7; Matter of Greenberg v. Cohen, 173 Misc. Rep. 372; 258 App. Div. 1039; Matter of Gresser v. Cohen, 275 N. Y. 440.) Timely notice was not given for the meeting of October 6. ' The meeting was, therefore, invalid. (Matter of Keller, 116 App. Div. 58; Davison v. Parke, Austin & Lipscomb, Inc., 165 Misc. Rep. 32.)

      Jackson A. Dykman and E. Ivan Bubenstein for Francis D. McGarey, respondent.
    Unless Robert H. Haskell has been duly nominated, there is a vacancy in the nomination of the American Labor Party for the office of Surrogate of Kings county. (Matter of Simpson v. Cohen, 173 Misc. Rep. 372; 258 App. Div. 1039; Matter of Greenberg v. Cohen, 173 Misc. Rep. 405; Matter of Gresser v. Cohen, 275 N. Y. 440.)
   Per Curiam.

The county committee of the American Labor Party was elected on September 16, 1941. The Election Law (Cons. Laws, ch. 17) provides that “ a vacancy in a nomination made at a fall primary * * * may be filled by a majority of a quorum of the members of the county committee or committees last elected * * * or by a majority of such other committee as the rules of the party may provide.” (§ 139.) The rules of the party provide that all nominations to fill vacancies in nomination for public elective office or to fill vacancies in public elective office which may be made by any party committee within the county shall be made only by the county executive committee. Under the authority conferred by that rule, the executive committee of the county committee, elected in 1940, undertook to fill vacancies. The Election Law provides that members of the county committee “ shall hold office until the election of their successors.” (§ 13.) The newly elected county committee is required by the statute to hold an organization meeting within twenty days after its election. (§15.) No organization meeting was called in accordance with the statute or with the rules of the party within the required time.

The rules of the American Labor Party also provide that the officers and standing committees chosen under these rules shall hold office and serve from the time of their selection until their successors are chosen. That rule could not give authority to the executive committee of the old county committee to make nominations after their successors as members of the county committee had been elected. The statute provides otherwise. It follows that the nomination of Robert H. Haskell was invalid. The question remains whether the nomination of William Stanley Miller made at the meeting, held pursuant to the order of the court on October 6th, was valid. The Appellate Division modified that order and for the reasons stated in the order of modification, we hold that the meeting-was invalid and that no nominations which were attempted to be made at that meeting were valid.

The order in so far as it grants the petition of Robert H. Haskell should be reversed.

The order in so far as it affirmed the order denying the petition of Torchin and Miller should be affirmed.

Conway, J.

(dissenting). I agree with Judges Pinch and Rippey that the meeting of October 6, 1941, was invalid but it seems to me that the petitioner Haskell was properly named to fill the vacancy caused by the declination of Bagley.

The Election Law (§ 139) provides for the filling of vacancies by a majority of a quorum of the members of the county committee or committees last elected in the political subdivision in which such a vacancy occurs or by a majority of such other committee as the rules of the party may provide.

By the rules of the American Labor Party it is provided in article VII, section 2: “ All nominations to fill vacancies in nominations for public elective office or to fill vacancies in public elective office which may be made by any Party Committee, within the County, shall be made only by the County Executive Committee.” (Emphasis supplied.)

Article II, section 4, of the rules provides: The County Committee shall meet within twenty days after its election for the purpose of organization. It shall elect its officers and a County Executive Committee, and transact such business which may come before it.”

Article IV, section 1, of the rules provides: “ The County Executive Committee shall have the power to act for the full County Committee, but subject to its rules and approval. It shall carry out the resolutions of the County Committee, and shall between the meetings of the Committee administer the affairs and business and carry on the work and activities of the American Labor Party within the County, and perform and exercise all of the functions, powers, rights, privileges, and duties of the County Committee. Its decisions and determinations shall be final unless reversed or disapproved by the County Committee.”

Article II, section 8, of the rules provides: “ The officers and the Standing Committees chosen under these rules and regulations shall hold office and serve from the time of their selection until their successors are chosen.”

Passing the question of whether the notice of the meeting of October 6, 1941, was a timely one and the question whether the meeting was called by the person or persons authorized to call a meeting of the county committee, two things are clear: The county executive committee as the chief standing committee chosen under the rules and regulations of the American Labor Party continued to hold office and serve from the time of its selection until its successor was chosen. Second, under the rules and regulations the county executive committee alone had power to fill vacancies.

Even assuming, therefore, that the meeting of October 6th was properly held, since no new executive committee of the new county committee was chosen thereat, the executive committee which named the petitioner Haskell to fill the vacancy caused by the declination of Bagley was vested with power to fill the vacancy and still continues to be the executive committee of the county committee of Kings county of the American Labor Party and will so continue until its successor is chosen. No attempted rescission or revocation by the new county committee of the action taken by the executive committee in filling the vacancy could in and of itself affect the action of the executive committee. The party by its rules and regulations and the applicable provisions of the Election Law (§ 131, subd. 7, and § 139) had vested power to fill vacancies in the executive committee alone and provided that that executive committee should continue in office until its successor was chosen. There never has been any successor chosen. The sole power to fill the vacancy resides in the only existent executive committee of the party and that is the committee which nominated the petitioner Haskell to fill the vacancy. If it does not exist in that committee, it exists nowhere. To say that the power does not exist anywhere, would be to leave the American Labor Party without a candidate for Surrogate. This court said in Matter of Grosser v. Cohen (275 N. Y. 440, 445): We have reached the conclusion that where a vacancy has occurred and the County Committee has failed to exercise its powers conferred by rule 14, to fill such vacancy, and is not in session, that the Executive Committee, under rule 10, possesses the power to fill such vacancy. Otherwise, one of the two dominant political parties would be in the position of not having a candidate nominated upon the ballot for the office in which a vacancy has occurred, which would be contrary to the spirit and policy of our Government and the Election Law.” That statement is applicable here.

The American Labor Party was permitted under the Election Law to provide for the filling of vacancies by a majority of such committee as the rules of the party might provide. The party has so provided. Under the Election Law (§ 15) those rules must remain in force until they are amended or new rules adopted.

The order of the Appellate Division should be affirmed.

Loughran, Finch, Rippey, Conway and Desmond, JJ., concur in the opinion Per Curiam in so far as it affirms the order denying the petition of Torchin and Miller; Lehman, Ch. J., and Lewis, J., dissent on the ground that the neglect of the officers of the old committee to call a meeting of the new county committee for the purpose of electing an executive committee within the time allowed by law made strict compliance with the rules of the American Labor Party', governing nomination impossible since the time to make nominations expired on the 6th day of October, 1941, and, therefore, only substantial compliance could be exacted.

Lehman, Ch. J., Finch, Rippey and Lewis, JJ., concur in the opinion Per Curiam in so far as it reverses the order of the Appellate Division which affirmed that part of the order of Special Term granting the petition of Robert H. Haskell; Loughran, Conway and Desmond, JJ., dissent in opinion by Conway, J.

Ordered accordingly.


author:
      Per Curiam.

      Conway, J.

text:
    In the Matter of Frank C. Moore, Appellant, against Michael F. Walsh, as Secretary of State of the State of New York, Respondent.
    Argued October 27, 1941;
    decided October 27, 1941.

      Kenneth S. MacAffer, Borden H. Mills and Herbert Brownell, Jr., for appellant.
    If the Election Law (Cons. Laws, ch. 17) is construed to prevent the filing of an independent nominating petition or certificate for the office of Comptroller of the State at the forthcoming general election, it is to that extent unconstitutional and void. (Matter of Burke v. Terry, 203 N. Y. 293; Matter of Hopper v. Britt, 203 N. Y. 144; 204 N. Y. 524; People ex rel. Hotchkiss v. Smith, 206 N. Y. 231; Matter of Callahan, 200 N. Y. 59; Matter of Lauer v. Board of Elections, 262 N. Y. 416.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), for respondent.
    The determination made by the Secretary of State was proper. (Matter of Mellon v. Board of Elections, 262 N. Y. 422; Matter of Peel v. Cohen, 265 N. Y. 312.)
   Per Curiam.

The Election Law (Cons. Laws, ch. 17) is not open to any construction which would permit nominations by independent groups to fill vacancies described in section 131, subdivision 7. Since any statute which provides for an election where only political parties can make nominations is in violation of the State Constitution, the provisions of section 42 of the Public Officers Law (Cons. Laws, ch. 47) are to that extent void. (Matter of Burke v. Terry, 203 N. Y. 293.) It follows that no election for the office of Comptroller can be held this year.

The order should be affirmed, without costs.

Conway, J.

(dissenting). This is a motion based on a petition seeking to direct the Secretary of State of the State of New York, respondent, to accept and file a certain Independent Nominating Petition ” containing over 28,000 signatures purporting to place in nomination for the office of State Comptroller to be filled at the general election to be held on November 4, 1941, one Frank C. Moore, who has also been nominated by the Republican Party. The name designated by the signatories to said petition as the name of the independent body is City Fusion Party.” The petition was presented to the Secretary of State on October 23, 1941, and he refused to accept it for filing, rendering a decision in writing giving his reasons for his refusal.

Nominations for the position of State Comptroller were made necessary by reason of the death of the Honorable Morris S. Tremaine on Sunday, October 12, 1941. By virtue of section 42 of Public Officers Law it became necessary to hold an election to fill the vacancy at the general election to be held on November 4, 1941. The political parties (Election Law, § 2, subd. 5), by their appropriate State committees, nominated candidates for the office in question on October 18th and 20th, respectively. Three days elapsed for the filing of objections to those nominations and none was filed. On October 23, 1941, the Independent Nominating Petition,” which is the subject of our inquiry, was presented for filing. To be valid it was necessary for the petition to contain 12,000 valid signatures and at least fifty of such signatures were required to be of residents of each county of the State, the counties of Fulton and Hamilton counting as one county. (Election Law, § 137, subd. 4.)

The sections of the Election Law to which attention must be particularly directed are sections 131, subdivision 7, and 140, subdivision 10.

Section 131, subdivision 7, reads as follows: Party nominations. * * *

“ 7. A party nomination of a candidate for election to fill a vacancy, occurring after the fifth Tuesday preceding the fall primary, in an elective office required to be filled at the next general election, if it be an office for which party nominations might otherwise be made at a fall primary or by a convention of delegates chosen at such a primary, shall be filled, after the day of such primary, by a majority vote of a quorum of the state committee, if the vacancy occur in an office to be filled by all the voters of the state, and otherwise by a majority of a quorum of the members of the county committee or committees last elected in the political subdivision in which such vacancy is to be filled or by such other committee as the rules of the party may provide.”

Section 140, subdivision 10, as amended in 1929 (L. 1929, ch. 543) is as follows:

10. A certificate to fill a vacancy caused by declination of an independent nomination for an office to be filled at the time of a general election shall be filed not later than the sixth day after the fourth Tuesday preceding such election, and for an office to be filled at an election at a time other than that of a general election shall be filed not later than eight days preceding such election. If a vacancy described in subdivision seven of section one hundred and thirty-one occur too late to comply with the provisions of this section, the certificates of nomination, declination and to fill a vacancy in such nomination shall be filed as soon as practicable.”

The argument of respondent comes to this: Section 131, subdivision 7, applies only to party nominations. Section 140 in its first seven subdivisions relates only to party nominations. Subdivisions 8, 9 and 10, respectively, contain provisions for the filing of a petition for an independent nomination, for the filing of a certificate of declination of an independent nomination and for the filing of a certificate to fill a vacancy caused by declination of an independent nomination. Subdivision 8 provides that a petition for an independent nomination shall be filed not earlier than the fifth Tuesday and not later than the fourth Tuesday preceding the general election. This year such latest date for filing would have been October 7, 1941. It is thus argued that section 131, subdivision 7, refers only to party nominations and that the last sentence of section 140, subdivision 10, is applicable only to nominations by political parties. This reasoning results in the contention of respondent that if a vacancy occur between October 7th and October 15th (Public Officers Law, § 42), the Legislature intended that the vacancy so occurring could be filled only by a political party and not by an independent nominating petition of an independent body, defined in Election Law, section 2, subdivision 11.

The deduction as to such legislative intent is claimed to be shown not only by the language employed but by the development historically of the Election Law prior to the amendments of 1922, by the amendments of that year and the necessity of permitting time for inspection of independent nominating petitions.

The difficulty with this position is that the Legislature may not under the New York State Constitution deny the right to make independent nominations and confine nominations to those of political parties. (Matter of Burke v. Terry, 203 N. Y. 293; Matter of Callahan, 200 N. Y. 59.)

It may be that the Legislature could in certain emergencies restrict nominations to political parties in order to prevent the disruption of election machinery. It seems to us, however, in view of the New York State Constitution and our decision in Matter of Burke v. Terry (supra), that if the Legislature envisioned an emergency it would have made explicit provision to cover it and not have left it to be implied by construction and interpretation of various sections of the Election Law. More likely is it that the claimed emergency was not foreseen. Whether the independent nominating petition was filed on October 7th or October 23rd, there would be but three days to file objections except in one instance not here presented and the claim that the Legislature intended to provide that if a vacancy occurred between October 7 and October 15 there should be -no independent nominating petition filed because of the necessity for reasonable opportunity for investigation, checking and filing objections to such petition and for that reason alone forbade the filing of independent nominating petitions, would appear to be unjustified. We are more inclined to believe that this so-called emergency was not foreseen, by reason of the amendment to section 140, subdivision 10, in 1929. Up to that time the last sentence of that subdivision had been a separate paragraph and it might then have been urged with more weight that that sentence, comprising as it did a separate paragraph, would bear the interpretation now put upon it. In 1929, however, the Legislature placed that sentence within subdivision 10 of the section and no longer made it a separate paragraph. Reading that section as it stands to-day, subdivision 10, which provides for the filling of a vacancy caused by declination of an independent nomination such as the one for State Comptroller, refers in terms to subdivision 7 of section 131. That which is referred to is a vacancy described ” in section 131, subdivision 7. In view of the doubtful or ambiguous meaning which may now be ascribed to section 140, subdivision 10, it seems impossible to say that the Legislature by implication meant that subdivision 7 of section 131 should not be applicable to subdivision 10 which expressly refers to it.

We have, therefore, reached the conclusion that independent nominating petitions may be filed for a vacancy occurring between October 7th and October 15th in the absence of clear legislative enactment to the contrary. No doubt if an independent nominating petition should be filed so close to the date of the election that a fraud would be perpetrated upon the electorate, the court, under the summary jurisdiction conferred by Election Law, section 330, would have the power, and it would be its duty, to declare that the filing of the petition had not been accomplished as soon as practicable.” We do not find such a situation disclosed here despite the fact that absentee ballots have already been mailed nor by reason of the fact that the Secretary of State has certified the nominees for the office of State Comptroller to the Boards of Election throughout the State.

It is further urged that the name “ City Fusion Party,” the name chosen by the group of voters seeking to nominate for the office of State Comptroller by the independent nominating petition in question, is a name already in use by another independent group of voters in New York city for nominations for city officers in the same general election of November 4, 1941. Nevertheless, the action of a Statewide group in using the name City Fusion Party ” is clearly permissible. In the case of Matter of Peel v. Cohen (265 N. Y. 312) Chief Judge Pound said (at p. 317): The views of the eminent jurist, as fully and carefully expressed, are entitled to great respect, but it remains the law, as laid down by the majority of the court, that the required number of voters making a nomination for the office may adopt a name and emblem which other voters have adopted in order to nominate candidates for other offices without thereby adopting for themselves the general declaration of principles of such independent party ór nominating a candidate in sympathy therewith. (Matter of Trosk v. Cohen, 262 N. Y. 430; Matter of Straus, 265 N. Y. 600.) ”

Whether the individual candidate shall or shall not accept the nomination under the circumstances is not a question of law but one of individual judgment. It is not a legal reason for refusing to accept and file the petition. We do not pass upon the question whether the State-wide independent body as distinguished from the city independent body is entitled to a different ballot line separate from the local candidates named by the local independent body for city offices. It is "not before us.

The order of the Appellate Division should be reversed.

Lehman, Ch. J., Loughran, Rippey and Desmond, JJ., concur in opinion Per Curiam; Conway, J., dissents in opinion in which Finch and Lewis, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    In the Matter of Neil M. Lieblich, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents. Matthew J. Troy et al., Appellants. In the Matter of Robert J. Crews, Appellant, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York et al., Respondents.
    Argued October 30, 1941;
    decided October 30, 1941.

      Kenneth M. Spence and Charles Pokorny for appellants.
    Where the residence of a subscribing witness to a nominating petition is correctly stated, an error in the numbering of the election district does not invalidate the petition. (Matter of Stapleton, 257 App. Div. 1072; Matter of Baum, 268 N. Y. 614; Matter of Marion, 174 Misc. Rep. 897.) The trial court properly allowed 487 signatures where the signers correctly stated their addresses and their 1940 election districts instead of the 1941 election districts, the numbers of their election districts having been changed by the board of elections in 1941. (Matter of Hagler v. Cohen, 252 App. Div. 741.)

      Abraham Multer, E. Ivan Bubenstein and Neil M. Lieblich, in person, for Neil M. Lieblich, respondent.

      William C. Chanler, Corporation Counsel (Seymour B. Quel of counsel), for Board of Elections, respondent.
   Per Curiam.

Finding No. 6 states: I further find that regardless of the date of the signature, 487 such signers were duly registered from the addresses stated but that 1940 election districts instead of the 1941 election districts appeared opposite their addresses, the numbers of their said election districts having been changed by the Board of Elections in 1941.” The provisions of section 137 of the Election Law (Cons. Laws, ch. 17) must be complied with. Finding No. 6 does not show compliance here. (Matter of McElroy v. Cohen, 286 N. Y. 686.) Change of election districts by maps filed in 1941 does not excuse the Signers from compliance with the provisions of the statute. The petition, therefore, does not contain sufficient signatures even if we were to hold that the signatures of the two sets of petitions might be counted together.

The orders should be affirmed, without costs.

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

Orders affirmed.


text:
    The People of the State of New York ex rel. Rose Pantiel, Appellant, against Warden of the House of Detention for Women et al., Respondents.
    Submitted June 2, 1941;
    decided June 3, 1941.

      William O’Dwyer, District Attorney (Edward H. Levine of counsel), for motion.

      Joseph A. Solovei opposed.
   Motion denied with leave to renew on argument of appeal.


text:
    Robert Waller, Appellant, v. David Feiss, Respondent.
    Argued April 22, 1941;
    decided June 5, 1941.

      George W. Herz for appellant.

      Desmond T. Barry, Edward A. Shandell and Clarence B. Tippett for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division on the ground that the findings of the Appellate Division are not in accord with the weight of evidence. No opinion.

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


text:
    The People of the State of New York ex rel. Herman Barmore, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted June 2, 1941;
    decided June 5, 1941.

      Herman Barmore, in person, for motion.
    No one opposed.
   Motion denied upon the ground that so far as appears no substantial question of law is involved.


text:
    Opera on Tour, Inc., Appellant, v. Joseph N. Weber, as President of American Federation of Musicians, et al., Respondents.
    Submitted May 19, 1941;
    decided June 5, 1941.
   Motion by appellant to amend the remittitur and motion by respondents for reargument or to amend the remittitur denied, without costs. (See 285 N. Y. 348.)


text:
    William T. Wright, Individually and as Mayor of the City of Rensselaer, Appellant, v. Albany Port District Commission et al., Respondents.
    Submitted May 19, 1941;
    decided June 5, 1941.
   Motion to amend remittitur' granted. Return of remittitur requested and when returned it will be amended by adding thereto the following:

“ A question under the New York State Constitution was presented and necessarily passed upon. The appellant contended that chapter 192 of the Laws of 1925 of the State of New York and the acts amendatory thereto were repugnant to the provisions of article 1, section 6; article 8, section 10; article 10, section 2; and article 12, section 2 of the Constitution of the State of New York of 1894. This court held that the laws in question were not repugnant to such constitutional provisions.” (See 280 N. Y. 731.)


text:
    Albany Port District Commission, Respondent, v. William T. Wright, as Mayor of the City of Rensselaer, et al., Respondents. William T. Wright, Intervener, Appellant.
    Argued May 19, 1941;
    decided June 5, 1941.

      John Lane for motion.

      LaV erne Orvis opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the ground that no substantial constitutional question is involved.


text:
    Frishon Realty Corporation, Appellant, v. Isidore R. Stern et al., Respondents.
    Submitted May 26, 1941;
    decided June 5, 1941.

      Nathan A. Goldenthal for appellant.

      Aaron H. Marx and S. David Liebowitt opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that an appeal lies of right from the judgment entered thereon.


text:
    Edward Hoose, an Infant, by Ella Hoose, His Guardian ad Litem, Appellant, v. S. S. Drumm et al., as Trustees of School District No. 1 of the Town of Stuyvesant, Respondents.
    Submitted May 26, 1941;
    decided June 5, 1941.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended to provide that the judgment is affirmed, without coste. Motion for reargument denied. (See 281 N. Y. 54.)


text:
    Sam Roberts, Appellant, v. Ransom Pratt et al., Respondents.
    Submitted May 26, 1941;
    decided June 5, 1941.

      W. Earle Costello for motion.

      Sam Roberts, in person, opposed.
   Motion granted and appeal dismissed.


text:
    National City Bank of New York, Appellant, v. Julia C. Gelfert, as Executrix of James J. Carpenter, Deceased, et al., Defendants, and George U. Hammond, as Executor of James J. Carpenter, Deceased, Respondent.
    Submitted May 26, 1941;
    decided June 5, 1941.
   Motion for reargument granted. As interpreted by us, the order of the Special Term determined only the proposition that section 1083 of the Civil Practice Act, as amended by chapter 510 of the Laws of 1938, could not be constitutionally applied to mortgage contracts made prior to its enactment. Hence the reargument must be limited to the single question whether the plaintiff made application for a deficiency judgment under section 1083. (See 284 N. Y. 13.)


text:
    In the Matter of Rudolph Wurlitzer Company, Respondent, against Martha Byrne, as Register of the County of New York, Appellant.
    Argued May 19, 1941;
    decided June 12, 1941.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and John C. Crary, Jr., of counsel), amicus curise.

      Sidney H. Levine and S. C. Levine for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Warren Commercial Refrigerator Sales Corporation, Respondent, v. Martha Byrne, as Register of the County of New York, Appellant.
    Argued May 19, 1941;
    decided June 12, 1941.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for appellant.

      Robert Goldstein for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Edward Miller, Respondent, against De Parma and Hoskwith Co., Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued May 20, 1941;
    decided June 12, 1941.

      T. Carlyle Jones for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Rachel N. Feldstein, Appellant, v. New York Life Insurance Company, Respondent.
    Argued May 19, 1941;
    decided June 12, 1941.

      Horace M. Gray, Charles E. Wythe and Harry Tannenbaum for appellant.

      Lee M. Gammill and Louis H. Cooke for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Harriett M. Clendenning, Respondent, v. Bernard McGinn, as Executor of George H. Ryerson, Deceased, Appellant.
    Submitted May 20, 1941;
    decided June 12, 1941.

      George F. Boesch for appellant.

      Wilmot Decker for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Irene Turano against Myrna Wightman, Doing Business under the Name of Tally Gowns, Respondent. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant.
    Submitted May 20, 1941;
    decided June 12, 1941.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, W. Gerard Ryan and Francis R. Curran of counsel), for appellant.

      Joseph C. Victor for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Rose C. Hawkins, Respondent, against Oliver Raynor et al., Appellants. State Industrial Board, Respondent.
    Submitted May 20, 1941;
    decided June 12, 1941.

      Frank L. Ward for appellants.

      David Rosenberg and Abraham L. Doris for claimant, respondent.

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin, Boy Wiedersum and Isaac Frank of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Finch, Rippey, Lewis, Conway. and Desmond, JJ.; Lehman, Ch. J., dissents on the ground that the undisputed evidence establishes that at the time of the accident the claimant was engaged in repairing a small boat in waters which, as matter of law, are navigable, and that, therefore, the Workmen’s Compensation Law of the State of New York has no application.


text:
    Hartford Accident & Indemnity Company, Appellant, v. Bank of New York, Respondent, Impleaded with Others.
    Argued May 19, 1941;
    decided June 12, 1941.

      George A. Dickinson and Murray D. Welch for appellant.

      Andrew Eckel and William F. Giesen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Jane Laubeck, Respondent, against Toc’s Products Company et al., Appellants. State Industrial Board, Respondent.
    Submitted May 20, 1941;
    decided June 12, 1941.

      Herbert F. Hastings, Jr., and F. G. Mann for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Finch, Rippey, Lewis, Conway and Desmond, JJ. Lehman, Ch. J., and Loughran, J., dissent on the ground that the accident did not arise out of and in the course of claimant’s employment.


text:
    Boudinot Atterbury et al., Appellants, v. James F. Walsh Paper Corporation et al., Respondents.
    Argued May 19, 1941;
    decided June 12, 1941.

      Neil P. Cullom and Henry W. Steingarten for appellants.

      Irving S. Abrams and Max M. Greenfield for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Murray Daniels, Respondent, against Max Udell Sons & Company et al., Appellants. State Industrial Board, Respondent.
    Submitted May 20, 1941;
    decided June 12, 1941.

      George J. Hayes and William F. O’Rourke for appellants.

      Isidor L. Daniels for claimant, respondent.
   Appeal dismissed, with costs, on the ground that the order of the Appellate Division is not a final order. N° opinion. (See Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459.)

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


text:
    The People of the State of New York ex rel. New York Central Railroad Company, Appellant, against Mark Graves et al., Constituting the State Tax Commission et al., Respondents.
    Argued May 19, 1941;
    decided June 12, 1941.

      C. Raymond Hulsart, Jr., Frederick L. Wheeler, Robert D. Brooks and Clive C. Handy for appellant.

      John J. Bennett, Jr., Attorney-General {Henry Epstein, Timothy F. Cohan and Jack Goodman of counsel), for State Tax Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Wade H. Hawley, as Administrator of the Estate of Irene Duppee, Deceased, Respondent, v. Richard A. Corroon, Jr., et al., Appellants.
    Submitted May 20, 1941;
    decided June 12, 1941.

      James A. Hughes for appellants.

      Emanuel Forst, Max Forst and Edward J. S. Farrell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Stella Wechsler et al., as Executors of Sigmund Wechsler, Deceased, Appellants, v. Abraham M. Bowman et al., Formerly Copartners under the Firm Name of Byrne & Bowman et al., Respondents.
    Submitted May 19, 1941;
    decided June 12, 1941.
   Motion for reargument denied. Motions to amend remittitur granted. Return of remittitur requested and and when returned it will be amended to read as follows:

Judgments reversed and judgment directed against the defendants William J. Byrne, as administrator of the goods, chattels and credits of John Byrne, deceased, Abraham M. Bowman and Byrne & Bowman, Inc., for the sum of $8,700 with interest from March 3, 1928, and with costs in all courts.
“ Judgments as to Stewart Forshay and Jacob Applebaum, as administrator of the goods, chattels and credits of Nathan Applebaum, deceased, affirmed without costs.” (See 285 N. Y. 284.)


text:
    William R. White, as Superintendent of Banks of the State of New York, Appellant, v. Pearl Adler et al., Defendants, and Henry D. Gasner et al., Respondents.
    Submitted June 2, 1941;
    decided June 12, 1941.

      Henry D. Levy and Joseph Katz for motion.

      Carl J. Austrian and Henry L. Bayles opposed.
   Motion denied.


text:
    Leon Silverberg et al., Appellants, v. Edwin S. Schweig et al., Respondents.
    Submitted June 2, 1941;
    decided June 12, 1941.

      Anthony T. Antinozzi for motion to dismiss appeal and in opposition to motion by appellants.

      Joseph A. Jacobson in opposition to motion to dismiss appeal and for motion by appellants for leave to prosecute appeal as poor persons.
   Motion to dismiss appeal denied.

Motion for leave to prosecute appeal as poor persons granted.


text:
    F. Ambrose Haughey et al., Respondents, v. Belmont Quadrangle Drilling Corporation, Appellant.
    Submitted June 2, 1941;
    decided June 12, 1941.
   Motion to amend remittitur granted. 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 the appellant to abide the event solely upon the question of damages including possible issue whether the plaintiffs could supply gas up to the stipulated limit. (See 284 N. Y. 136.)


text:
    In the Matter of Alada C. Senitha, Appellant; Francis A. McGurk, Respondent.
    Submitted June 2, 1941;
    decided June 12, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 284 N. Y. 730.)


text:
    In the Matter of George H. Eberle, Respondent, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate of the City of New York, as Trustees of the New York City Employees’ Retirement System et al., Appellants.
    Submitted June 2, 1941;
    decided June 12, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 285 N, Y. 247.)


text:
    The People of the State of New York ex rel. Stephen Bai, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted May 22, 1941;
    decided June 19, 1941.

      Stephen Bai, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Patrick PL. Clune of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Otto Frank, on Behalf of Himself and All Other Stockholders of Niagara Hudson Power Corporation and Northern New York Utilities, Inc., Appellant, v. Floyd L. Carlisle et al., Respondents, Impleaded with Others.
    Argued May 27, 1941;
    decided June 19, 1941.

      Murray Levine, Murray T. Berman and Philip G. Gross for appellant.

      Horace B. Lamb and Thomas F. Fennell, II, for Floyd L. Carlisle et al., respondents.

      Frank J. Berberich and Edward H. Green for William K. Dick, respondent, j
   Judgment affirmed, with costs, on the authority of Dunlop Sons, Inc., v. Dunlop (285 N. Y. 333). No opinion.

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


text:
    The People of the State of New York, Appellant, v. New York World’s Fair 1939, Inc., Defendant, and Gotham Productions, Inc., et al., Respondents.
    Argued May 22, 1941;
    decided June 19, 1941.

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

      Arthur Garfield Hays, John Schulman and William Abramson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ivor B. Clark, Respondent, v. Riverhead Savings Bank, Appellant.
    Argued May 26, 1941;
    decided June 19, 1941.

      Reginald C. Smith for appellant.

      Frederick E. Crane and Joseph V. Lane, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward Weinfeld, as Commissioner of Housing of the State of New York, Appellant, v. Hillside Housing Corporation, Respondent.
    Argued May 27, 1941;
    decided June 19, 1941.

      John J. Bennett, Jr., Attorney-General (.Ira S. Robbins of counsel), for appellant.

      Simon H. Rifkind and George E. Moesel for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Edward Weinfeld, as Commissioner of Housing of the State of New York, Appellant, v. Knickerbocker Village, Inc., Respondent.
    Argued May 27, 1941;
    decided June 19, 1941.

      John J. Bennett, Jr., Attorney-General {Ira S. Bobbins of counsel), for appellant.

      Osmond K. Fraenkel, Nathan Dambroff and P. Wolf Winer for Paul Samberg, amicus curise.

      Simon II. Bifkind, Sidney B. Nussenfeld and Hamilton Mclnnes for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    In the Matter of the Estate of Henry W. Maxwell, Deceased. Howard W. Maxwell et al., as Trustees et al., Respondents; Maxwell Lester, III, Appellant.
    Submitted May 22, 1941;
    decided June 19, 1941.

      E. Ivan Rubenstein and George Rosling for appellant.

      William K. Allison for Howard W. Maxwell et al., as trustees, respondents.

      James B. Burke and Lawrence Pomeroy for Maxwell Lester, Jr., respondent.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Lewis, Conway arid Desmond, JJ.


text:
    In the Matter of the Wills of Miriam C. Levy, Deceased. Winnifred Z. Glucksman, Appellant; Carmen S. Bernheim et al., Respondents.
    Argued May 27, 1941;
    decided June 19, 1941.

      Harold H. Levin for appellant.

      Sidney M. Wittner for Carmen S. Bernheim, respondent.

      Charles J. Katzenstein for Lisa M. D’Azevedo, respondent.
   Order affirmed, with costs to the respondents payable out of the estate. No opinion.

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


text:
    In the Matter of James F. O’Kelly, Respondent, against John W. Hill, Presiding Justice of the Domestic Relations Court of the City of New York, Appellant.
    Argued May 20, 1941;
    decided June 19, 1941.

      William C. Chanler, Corporation Counsel (William Mason Smith, Jr., Paxton Blair and Henry J. Shields of counsel), for appellant.

      Peter L. F. Sabbatino and Edward J. Fontana for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Town of Fallsburgh, Appellant, v. Louis Silverman et al., Respondents, Impleaded with Others.
    Argued May 21, 1941;
    decided June 19, 1941.

      William G. Birmingham, Milton E. Glickman, S. Wallace Kagan and Harry C. Resnick for appellant.

      John Bright and Isaac Silberman for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, against Warren F. Greenhalgh, Appellant.
    Argued May 26, 1941;
    decided June 19, 1941.

      James E. Wilkinson for appellant.

      Fred J. Munder, District Attorney {Harry C. Brenner of counsel), for respondent.
   Judgment affirmed. We are not called upon to pass upon the construction of section 292-a of the Code of Criminal Procedure because on this record it does not appear that the indictment upon which the defendant was tried was found earlier than the indictment with a later number. No opinion.

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


text:
    In the Matter of the Estate of Eugene V. R. Thayer, Deceased. State Tax Commission, Appellant; Carl J. Schmidlapp et al., as Executors, Respondents.
    Argued May 21, 1941;
    decided June 19, 1941.

      Mortimer M. Kassell and Harry T. O’Brien, Jr., for appellant.

      Thomas A. Ryan, Daniel G. Tenney, Jr., and Willard A. Mitchell for respondents.

      William D. H. Stanley, Heber Smith, Alfred Douglas Olena and D. R. Santomenna for Smith & Stanley et al., amici curix.

   Order affirmed, with costs. A question under the Federal Constitution was presented and necessarily passed upon. The appellant contended that subdivision 7 of section 249-r of the Tax Law of the State of New York, as sought to be applied in this proceeding, is not violative of, or repugnant to, the Fourteenth Amendment of the Constitution of the United States. This court held that the statute aforesaid, as sought to be applied in this proceeding, is violative of, and repugnant to, the Fourteenth Amendment of the Constitution of the United States. No opinion.

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


text:
    Margaret B. Kohler et al., Appellants, against Joseph Eich, Respondent.
    Argued May 23, 1941;
    decided June 19, 1941.

      S. Frederick Placer and George J. Gruenberg for appellants.

      Frederick Mellor and William Butler for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Lewis and Desmond, JJ. Rippey and Conway, JJ., dissent on the ground that the credibility of the testimony produced by the defendant should have been submitted to the jury.


text:
    Frances J. Edrington, Respondent, v. Jesse S. Richman, as Receiver in Supplementary Proceedings of Edrington-Minot Corporation, Appellant.
    Argued May 26, 1941;
    decided June 19, 1941.

      Isaac Gluckman and Stanley S. Casden for appellant.

      Alonzo L. Tyler and Leonard G. Bisco for respondent.
   'Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lougkran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Anna Sapego et al., Respondents, v. Village of Mount Kisco, Appellant, and Young and Halstead Company, Appellant and Respondent.
    Argued May 20, 1941;
    decided June 19, 1941.

      Harold V. Angevine and James A. Hughes for Village of Mount Kisco, appellant.

      Herbert A. McDevitt for Young and Halstead Company, appellant and respondent.

      Charles E. Long and James R. Caruso for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lougkran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    In the Matter of Corporate Employment Service, Inc., Respondent, against Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.
    Argued May 27, 1941;
    decided June 19, 1941.

      William C. Chanler, Corporation Counsel (Francis J. Bloustein and Paxton Blair of counsel), for appellant.

      William E. Vogel and J. Frederic Taylor for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Frank J. Maguire, as Executor and Trustee under the Will of Josephine V. Blodgett, Deceased. Nathan E. Blodgett et al., Appellants; O’Connell Ferris, Respondent.
    Argued May 22, 1941;
    decided June 19, 1941.

      Benjamin E. Shove for appellants.

      Charles C. Congdon and George Britten for respondent.
   Order affirmed, with costs to all parties filing separate briefs payable out of the estate. No opinion.

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


text:
    Elizabeth M. Taaffe, Appellant and Respondent, v. Ethel A. Doyle, Respondent and Appellant, and Gertrude Murphy, Respondent, Impleaded with Others.
    Submitted June 9, 1941;
    decided June 19, 1941.

      Robert H. Charlton for motion.

      Moses Kaplan and J. Roger Carroll opposed.
   Motion denied unless the defendant Doyle pays to plaintiff the costs in all courts to date, to be taxed by the court, within ten days after the entry of this order. Plaintiff, if so advised, may withdraw her stipulation for judgment absolute and her notice of appeal, without costs.


text:
    P. Charles DeNeri, as Secretary-Treasurer of Barbers’ and Beauty Culturists Union of America, Local No. 7, Appellant, v. Gene Louis, Inc., Respondent.
    Submitted June 9, 1941;
    decided June 19, 1941.

      Ralph Weller for motion to dismiss appeal.

      Benjamin Wyle opposed.
   Motion to dismiss appeal denied. Appellant permitted to withdraw notice of appeal dated May 5, 1941.


text:
    Carder Realty Corporation, Respondent, v. State of New York, Appellant.
    (Claim No. 23994.)
    Submitted June 9, 1941;
    decided June 19, 1941.
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 803.)


text:
    J. R. Construction Corporation, Respondent, v. Berkeley Apts., Inc., Appellant.
    Submitted June 9, 1941;
    decided June 19, 1941.

      Henry Heymann, Seymour C. Simon and George A. Roland for motion.

      Daniel A. Dorsey and Alexander E. Levine opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground defendant may appeal as of right.


text:
    In the Matter of Carl Sherman et al., Appellants, against Frank Cohen, Judgment Debtor. Empire Ordnance Corporation, Respondent.
    Submitted June 9, 1941;
    decided June 19, 1941.

      Joseph Sterling and Raphael H. Rosenbluth for motion.

      Charles H. Griffiths and Pearce H. E. Aul opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    In the Matter of The New York Central Railroad Company, Respondent, against Richard P. Limburg et al., Constituting the Town Board of the Town of North Castle, Appellants. (Two proceedings.)
    Submitted June 9, 1941;
    decided June 19, 1941.

      James B. Stilson for motion.

      Clyde Brown, Jr., and Clive C. Handy for respondent.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the appeal does not lie under section 590 of the Civil Practice Act.


text:
    Helen L. North, Respondent, v. Willard T. North, Appellant.
    Submitted June 9, 1941;
    decided June 19, 1941.

      Frank S. Nicholson for motion.

      Glenn L. Buck opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Mae Q. Probst, Respondent, v. Frederick S. Probst, Appellant.
    (Appeal No. 2.)
    Submitted June 9, 1941;
    decided June 19, 1941.
   Motion for leave to reargue motion to dismiss appeal granted. Upon reargument motion to dismiss appeal granted and appeal dismissed. (See 285 N. Y. 841.)


text:
    Walker Memorial Baptist Church, Inc., Respondent, v. John W. Saunders et al., Appellants.
    Submitted June 13, 1941;
    decided June 19, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 462.)


text:
    Beverly J. Reynolds, Respondent, v. Eagle Pencil Company, Appellant.
    Submitted June 12, 1941;
    decided June 19, 1941.
   Motion for reargument and for a stay denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 448.)


text:
    In the Matter of William F. Durland, as Commissioner of Public Welfare of Orange County. Town of Highlands, Appellant; David C. Adie, as State Commissioner of Public Welfare, et al., Respondents.
    Argued June 19, 1941;
    decided July 29, 1941.

      Ivan E. Maginn and Frederick C. Scheel for appellant.

      John J. Bennett, Jr., Attorney-General (.Henry Epstein and Nathaniel Fensterstock of counsel), for David C. Adie, as State Commissioner of Public Welfare, respondent.

      Robert L. Rice, Jr., for Milton E. Switzer, as Commissioner of Public Welfare of the County of Niagara, et al., respondents.

      Clarence W. Greenwald, Corporation Counsel (Jack W. Hackett of counsel), for City of Niagara Falls, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    John K. White et al., as Trustees, Appellants, v. Gladys M. Wielandt et al., Respondents, Impleaded with Others.
    Argued June 18, 1941;
    decided July 29, 1941.

      Francis B. Hamlin and August J. Hovorka, Jr., for appellants.

      Charles C. Peters for respondents.'
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Lewis A. Earle. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Huntstay Operating Corporation et al., Respondents.
    Argued June 13, 1941;
    decided July 29, 1941.

      John J. Bennett, Jr., Attorney-General (Francis R. Curran, W. Gerard Ryan and Henry Epstein of counsel), for appellant.

      Sidney A. Clarkson for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Liquidation of National Surety Company. Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of National Surety Company, Appellant; Great American Indemnity Company, Respondent.
    Argued June 3, 1941;
    decided July 29, 1941.

      J. Francis Lynch and Edward F. Keenan for appellant.

      Barent L. Visscher and Albert S. Davis, Jr., for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. James Carter, Appellant.
    Argued June 2, 1941;
    decided July 29, 1941.

      Joseph A. Solovei for appellant.

      William O’Dwyer, District Attorney (Edward H. Levine of counsel), for respondent.
   Judgment affirmed, no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis, CoifWAY and Desmond, JJ.


text:
    The People of the State of New York, Respondent, v. Samuel Bergstein, Appellant. The People of the State of New York, Respondent, v. Abraham Bergstein, Appellant. The People of the State of New York, Respondent, v. Max Katz, Appellant. The People of the State of New York, Respondent, v. Fred Romondo, Appellant. The People of the State of New York, Respondent, v. Herman Schlossberg, Appellant.
    Submitted March 14, 1941;
    decided July 29, 1941.

      William Karlin and Leo Greenfield for appellants.

      Elbert T. Gallagher, District Attorney (Samuel Y. Austin, Jr., of counsel), for respondent.

      Samuel Bernstein for New York State Wholesale Beer Distributors Association, Inc., amicus curise.

   Judgments reversed and informations dismissed on authority of Baillis v. Fuchs (283 N. Y. 133); Goldfinger v. Feintuch (276 N. Y. 281); Bakery & Pastry Drivers & Helpers Local 802 of the International Brotherhood of Teamsters v. Wohl (313 IT. S. 548). No opinion.

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


text:
    Samuel Frank, Appellant, v. David’s Fifth Avenue, Inc., Defendant, and Forma Corporation et al., Respondents.
    Argued June 19, 1941;
    decided July 29, 1941.

      Millard E. Theodore for appellant.

      Byron Clark and Patrick J. Murphy for Forma Corporation, respondent.

      Herbert Kaufman and Ralph E. Schneider for David’s For Bags, Inc., respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lillian Bowers, Appellant, v. Village of South Glens Falls, Respondent.
    Argued June 13, 1941;
    decided July 29, 1941.

      J. Clarence Herlihy and Delon F. Mousaw for appellant.

      Walter A. Chambers and William F. Chambers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Macfadden, Appellant, against Bernarr Macfadden et al., Respondents.
    Argued June 11, 1941;
    decided July 29, 1941.

      Harold H. Corbin, Edward J. Bennett and Alfred J. Callahan for appellant.

      Arthur Garfield Hays, Theodore Kiendl, William Abramson and John Schulman for respondents.
   Judgment affirmed, without costs; no opinion.

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


text:
    Morris H. Siegel, Appellant, v. Prudential Insurance Company of America, Respondent.
    Argued June 10, 1941;
    decided July 29, 1941.

      Max J. Rubin, Frank E. Karelsen, Jr., Frederick Baum and Lawrence S. Timen for appellant.

      Merwin F. LeVine, Solon Weit, Benjamin Paul Goldman and Joseph Joblin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Esther Gellman, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued June 9, 1941;
    decided July 29, 1941.

      William B. Moore for appellant.

      Leo H. Klugherz, Francis I. Howley, Richard Klugherz and Albert H. Vitale for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alfred C. Toof, Respondent, v. State of New York et al., Appellants.
    Argued June 6, 1941;
    decided July 29, 1941.

      John J. Bennett, Jr., Attorney-General, for State of New York, appellant.

      John G. Looby for Bankers Indemnity Insurance Company, appellant.

      William Harry Montgomery for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Adam G. Thompson, Deceased. Arlie G. S. Thompson, Respondent; Florence Thompson, as Administratrix, Appellant.
    Argued June 4, 1941;
    decided July 29, 1941.

      JohnF. McNulty for appellant.

      Philip Halpern and Milton H. Friedman for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Betty Davis et al., Individually and on Behalf of Stockholders of Columbia Pictures Corporation, Appellants, v. Jack Cohn et al., Respondents, Impleaded with Others.
    Argued June 3, 1941;
    decided July 29, 1941.

      Joseph L. Young, Joel Mencher and Sidney Goldstein for appellants.

      Louis D. Frohlich, Herman Finkelstein and Herbert P. Jacoby for respondents.
   Appeal dismissed, with costs, on the ground that the order of the Appellate Division directing the dismissal of these causes of action did not result in their severance and no judgment could be entered upon that order. No appeal lies directly to this court from the judgment dismissing the causes of action entered upon the order of severance of the Supreme Court. No opinion.

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


text:
    Richard Kennet, Appellant, v. Isaac Sossnitz, Respondent.
    Argued June 2, 1941;
    decided July 29, 1941.

      John J. Tullman and R. Robert Caplan for appellant.

      Frederick Mellor and J ohn S. Bennett for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey and Lewis, JJ. Conway and Desmond, JJ., dissent and vote to reverse the judgment of the Appellate Division and reinstate the verdict on the dissenting opinion of Mr. Justice Dore in the Appellate Division.


text:
    In the Matter of the Liquidation of Lawyers Mortgage Company. Brentmore Estates, Inc., et al., Appellants; Richard M. Hurd, as Manager under a Plan of Reorganization of Lawyers Mortgage Company et al., Respondents.
    Argued May 21, 1941;
    decided July 29, 1941.

      Leon Leighton, Charles L. Sylvester, Sidney Harris, Sidney

      G. Kingsley, Henry Cohen, Edward F. Keenan and Irving H. Jurow for appellants.

      No appearance for respondents.
   Appeal dismissed, with costs, on the ground the order is not final. No opinion.

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


text:
    In the Matter of Jacob Marks, Respondent, against Fiorello H. LaGuardia et al., Constituting the Board of Estimate and Apportionment of the City of New York, Appellants.
    Argued May 20, 1941;
    decided July 29, 1941.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and Louis M. Weintraub of counsel), for appellants.

      Isidor Neuwirth for respondent.
   Order affirmed, with costs; no opinion. (See 286 N. Y. 700.)

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


text:
    Schenectady Trust Company, as Trustee, Respondent, v. Nathaniel D. Emmons, Appellant, and Security First National Bank of Los Angeles, as Executor of George E. Emmons, Deceased, et al., Respondents, Impleaded with Others.
    Argued April 23, 1941;
    decided July 29, 1941.

      James A. Leary, Walter A. Fullerton and William A. Redden for appellant.

      Ellis J. Staley and Bollin Browne for Schenectady Trust Company, as trustee, respondent.

      Edmund B. Bellinger, guardian ad litem for Mary H.' Emmons et al., infants, respondents.

      Emil Peters and Frank S. Higgins for Security First National Bank of Los Angeles, as executor, respondent.
   Judgment affirmed, with costs; no opinion. (See 286 N. Y. 698.)

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


text:
    The People of the State of New York ex rel. Fifth Avenue and 37th Street Corporation, Appellant and Respondent, against William S. Miller et al., Constituting the Tax Commission of the City of New York, Respondents and Appellants.
    Argued June 18, 1941;
    decided July 29, 1941.

      Robert J. Silberstein and Victor S. Oettner for relator, appellant and respondent.

      William C. Chanler, Corporation Counsel (Alfred T. White and Arthur A. Segall of counsel), for defendants, respondents and appellants.
   Order affirmed, with costs; no opinion.

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


text:
    Great American Indemnity Company, Appellant, v. North Shore Bus Company, Inc., Respondent.
    Argued June 10, 1941;
    decided July 29, 1941.

      Harold H. Levin, Emanuel Thebner and Lester L. Weil for appellant.

      Jacob I. Goodstein, Isidore Zamore and Benjamin W. Mehlman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Marie Flandina, Respondent, v. John Hancock Mutual Life Insurance Company, Appellant.
    Argued June 9, 1941;
    decided July 29, 1941.

      William B. Moore for appellant.

      Matthew H. Brandenburg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Rose Pantiel, Appellant, v. Warden of the House of Detention for Women, Respondent.
    Argued June 5, 1941;
    decided July 29, 1941.

      Joseph A. Solovei, Milton I. Weintraub and Max Weisman for appellant.

      William O’Dwyer, District Attorney (Edward H. Levine of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    City Bank Farmers Trust Company, Appellant, v. C. R. H. Building Corporation et al., Respondents, Impleaded with Others.
    Argued June 4, 1941;
    decided July 29, 1941.

      George S. Mittendorf and Milton R. Friedman for appellant.

      Theodore Kiendl, George W. Palmer and Cyril T. McDermott for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alexander A. Lowande, Appellant, v. Eisenberg Farms, Inc., et al., Respondents.
    Submitted June 3, 1941;
    decided July 29, 1941.

      Maurice V. Seligson and Joseph J. Nista for appellant.

      Max Rothenberg, Morris H. Epstein and Arthur Weiss for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph T. McCarthy, Appellant, v. City of New York et al., Respondents, Impleaded with Others.
    Argued June 2, 1941;
    decided July 29, 1941.

      Julitis Weiss and John Kadel for appellant.

      William C. Chanler, Corporation Counsel (Herman Horowitz and Murray Sendler of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Edel and Timothy McCarthy, Appellants.
    Argued May 26, 1941;
    decided July 29, 1941.

      Joseph S. Moore and Francis C. Moore for appellants.

      Thomas E. Dewey, District Attorney (Whitman Knapp and Stanley H. Fuld of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    Ruth B. Viall, Respondent, v. Leland S. Viall, Appellant.
    Submitted June 13, 1941;
    decided July 29, 1941.

      Meyer Fix for appellant.

      Hugh J. O’Brien and Charles E. Bostwick for respondent.
   Appeal dismissed, with costs, on the ground the orders are not final. No opinion. (See 286 N. Y. 696.)

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


text:
    George A. Manning et al., Appellants, v. Woodbury Silloway et al., Respondents.
    Argued June 12, 1941;
    decided July 29, 1941.

      W. Earle Costello for appellants.

      Alton J. Wightman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louise Hoerup, Respondent, v. Yonkers Railroad Company, Appellant.
    Argued June 12, 1941;
    decided July 29, 1941.

      • Addison B. Scoville, J. Stuart Riedel and Alfred T. Davison for appellant.

      Frank J. Hand and Frank W. Cauley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Robert J. Wiegand, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted June 6, 1941;
    decided July 29, 1941.

      Robert J. Wiegand, appellant, in person.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Patrick H. Clune of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Gepo Realty Corporation, Appellant, v. Abraham Pierce, Respondent.
    Argued June 4, 1941;
    decided July 29, 1941.

      Kenneth M. Spence, George A. Lewis, David B. Tolins, Stewart W. Bowers and Albert W. Clurman for appellant.

      David Berg and Samuel Mezansky for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edith W. Stewart, Individually and as Executrix of Robert C. Stewart, Deceased, Appellant, v. Thomas B. Smith, Individually and as Surviving Partner of Robert C. Stewart and Company, Respondent.
    Submitted June 3, 1941;
    decided July 29, 1941.

      Harry Mabel for appellant.

      John P. Coffin, Philip 8. Hill and Karl S. Deitz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Louis Calder, Appellant, against Mark Graves et al., Constituting the State Tax Commission, Respondents.
    Argued June 19, 1941;
    decided July 29, 1941.

      Seth T. Cole for appellant.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Salvatore Messina, Appellant, v. United States Gypsum Company, Respondent.
    Argued June 18, 1941;
    decided July 29, 1941.

      William L. Clay for appellant.

      W. Clyde O’Brien for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. George Pahl, Appellant, against Leo J. Hagerty, District Attorney of Erie County, et al., Respondents.
    Argued June 12, 1941;
    decided July 29, 1941.

      Samuel M. Fleischman and Richard K. Fleischman for appellant.

      John J. Bennett, Jr., Attorney-General (James P. Cotter and Irene O’Sullivan of counsel), for the People of the State of New York et al., respondents.

      Winifred Stanley for Leo J. Hagarty, as District Attorney, et al., respondents.
   Order affirmed, without costs; no opinion.

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


text:
    The Security Building and Loan Association, Appellant, v. Fred G. Carey et al., Defendants, and City of Oswego, Respondent.
    Submitted June 12, 1941;
    decided July 29, 1941.

      John L. Mournighan for appellant.

      Harry C. Mizen and James H. Horan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. John J. Bennett, Jr., Individually and as Attorney-General, Respondent, v. Henry B. Merritt, Individually and as Special County Judge of Orange County, et al., Respondents. Michael A. DeVasto et al., Appellants.
    Argued June 11, 1941;
    decided July 29, 1941.

      Henry Hirschberg, as District Attorney of Orange County, appellant.

      Henry Grusky for Michael A. DeVasto, appellant.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Edward G. O’Neill of counsel), respondent.
   Order affirmed, without costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Zeitz, Appellant.
    Argued June 9, 1941;
    decided July 29, 1941.

      Harry G. Anderson and Samuel Goldstein for appellant.

      William 0’Dwyer, District Attorney (Thomas Cradock Hughes and Henry J. Walsh of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Joseph Safian, Appellant, v. Ætna Life Insurance Company, Respondent.
    Argued June 9, 1941;
    decided July 29, 1941.

      Samuel Lawrence Brennglass and Henry W. Fried for appellant.

      T. Carlyle Jones and Daniel Miner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Kenneth Alford. Frieda S. Miller, as Industrial Commissioner of the State of New York, Appellant; Aluminum Cooking Utensil Company, Respondent.
    Argued June 5, 1941;
    decided July 29, 1941.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan, Henry Epstein and Francis R. Curran of counsel), for appellant.

      Casper V. Baltensperger for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Edwin P. Lamphier, Jr., on Behalf of Himself and Others, Respondent, v. Underwriters Trust Company, Defendant, and Christian W. Korell et al., Appellants.
    Argued May 29, 1941;
    decided July 29, 1941.

      William L. Hanaway and Ernest Brooks, Jr., for appellants.

      J. Hampden Dougherty and Stephen J. Lucey for respondent.
   Appeal dismissed, without costs, on the ground the order appealed from is not final. No opinion.

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


text:
    Frieda Englberger, an Infant, by Charles Englberger, Her Guardian ad Litem, et al., Respondents, v. Eugene Hulse, Doing Business as Bellport Sanitary Laundry, Defendant, and Frederick Gronholz, Appellant.
    Argued June 18, 1941;
    decided July 29, 1941.

      Robert H. Elder, Otho 3. Bowling and Adolph Waxenbaum for appellant.

      Louis E. Schwarts and Abraham L. Singer for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Riverdale Cemetery Association of Niagara Falls et al., Appellants, v. St. Mary’s Roman Catholic Church Society of Niagara Falls et al., Respondents.
    Argued June 10, 1941;
    decided July 29, 1941.

      Clark H. Hammond, Darvin DeMarchi and Edgar H. Hedley for appellants.

      Kevin Kennedy for respondents.
   Judgment affirmed, with costs; no opinion.

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