text:
    In the Matter of New York Railways Corporation, Respondent, against City of New York et al., Appellants.

      Argued January 5, 1942;
    decided March 5, 1942.

      William C. Chanter, Corporation Counsel (Arthur A. Segall, Meyer Bernstein and William B. Trafford of counsel), for appellants.
    Section 48 of the Tax Law (Cons. Laws, ch. 60) expresses the legislative intention to limit the allowable credit against the tax on a separate special franchise to the percentage payment made thereunder. It precludes the application of any surplus credit to the tax upon another special franchise. The operation of the statute is unaffected by the circumstance of common ownership of several franchises. (Heerwagen v. Crosstown St. Ry. Co., 90 App. Div. 275; 179 N. Y. 99; People ex rel. Third Ave. R. R. Co. v. Tax Comrs., 212 N. Y. 472.)

      James A. Fowler, Jr., for respondent.
    The single lump sum basis of valuation is the lawful and proper method of assessment. (People ex rel. Metropolitan St. Ry. Co. v. State Board of Tax Comrs., 174 N. Y. 417; 199 U. S. 1; Robertson v. Downing, 127 U. S. 607; United States v. Falk, 204 U. S. 143.) There was only one special franchise tax due and payable under the provisions of law by the railways corporation. All deductions to which the corporation was entitled under section 48 of the Tax Law had to be credited against that tax. (New York Railways Co. v. City of New York, 164 App. Div. 871; 218 N. Y. 483; City of New York v. New York City Ry. Co., 193 N. Y. 543; Matter of Kolb v. Holling, 285 N. Y. 104; Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298.)
   Lehman, Ch. J.

Until June, 1936, New York Railways Corporation operated a street surface railway system in the city of New York. No single special franchise for the operation of the entire system was at any time granted to it. It. operated the system under special franchises for the operation of street railways, over component parts of the system, which had been granted to railroad corporations formed for such operation. Prior to 1935, though the New York Railways Corporation had acquired the assets (including the special franchises) of corporations which had originally received franchises for the operation of street railways over large parts of the system, the special franchises for the operation of street railways over other parts of the tracks of the system were still owned by existing street railway corporations. These corporations were controlled by New York Railways Corporation, but were not merged in it and constituted separate corporate entities. The tax on each special franchise owned by a separate railway corporation was separately assessed as required by the Tax Law (Cons. Laws, ch. 60). Under the provisions of section 48 of that statute each railway corporation was then permitted to deduct from the tax so assessed the amount which such corporation was required to pay to the city on account of such special franchise, granted to or possessed by such * * * corporation, which payment was in the nature of a tax * *

In 1934 and the first part of 1935 New York Railways Corporation acquired, by foreclosure or other proceedings, the assets and special franchises of all the remaining separate corporations owning any part of the tracks of the system,. The State Tax Commission then assessed a single special franchise tax upon the franchise right of New York Railways Corporation to operate the entire system as if a single special franchise for such operation had been granted to it at one time. The valuation of the combined special franchises as finally fixed and equalized upon which the tax was based was $4,022,240. The tax assessed upon that valuation for the year 1936 was $108,600.48. The amount which the New York Railways Corporation was required to pay to the city in that year upon the combined special franchises in the nature of a tax amounted to $104,053.27. It claims that this entire amount may be deducted by it from the tax assessed upon the combined special franchises.

Section 48 of the Tax Law, which permits the deduction of the amount paid on account of a special franchise ” from the tax assessed upon such franchise, provides also that no credit shall be given on account of such payment * * * in any other year, nor for a greater sum than the amount of the special franchise tax for city, town or village purposes, for the current year; * * In 1935 the sum of the amounts which were paid to the city of New York on account of the special franchises owned by the nine independent corporate entities, and upon which separate taxes had been assessed, exceeded by approximately $50,000 the taxes levied upon these franchises from which the payments made to the city could be deducted. At that time the excess could not be deducted from the tax levied upon the special franchise on the other parts of the system. By the merger of the separate corporations in the New York Railways Corporation separate franchise rights to operate street railways oyer parts of the system now owned by the New York Railways Corporation have been combined in single ownership and in combination they constitute a franchise right to operate a street railway over the whole and every part of the system. By such merger the New York Railways Corporation has also become subject to the burden of making all payments required to be made to the city on account of each and all the special franchises now combined in single ownership. If the sum of all these payments may be deducted from a single franchise tax, the net amount which the New York Railways Corporation must pay upon the franchise tax will be reduced by the merger.

In People ex rel. Metropolitan Street Ry. Co. v. State Board of Tax Commissioners (174 N. Y. 417, 443) this court said that “ the same corporation may have many special franchises, continuous or separate, yet they are all practially one, because they all belong to one system, the earning capacity of which may be ascertained, but not that of each special franchise independent of the others. By removing, a central franchise, the line is broken and the value of all seriously impaired. The combination of all into a single enterprise gives the highest, if not the only value to each.” Since the decision in that case whenever several special franchises “ which belong to one system ” have been owned by a single corporation no separate valuation has been placed upon the separate special franchises so combined in single ownership and used for a single operation. Though the result has been that in many cases the owner of an aggregate of special franchises to operate connected units of a railways system has been compelled to pay a tax assessed upon the increased value created by the aggregation of franchise rights to operate many units into a single franchise right to operate an entire system, the city claims that the burden upon the taxpayer may not be reduced by the voluntary act of the taxpayer in creating that aggregation. We cannot accept that contention. At the date which fixed for the year 1936 the taxable status of special franchises the special franchise owned by the New York Railways Corporation was the aggregate of all the separate franchises which it had acquired. The tax was properly assessed upon the valuation placed upon this aggregate. The amounts payable in the nature of a tax ” upon the component parts of the aggregate could be deducted from the single tax assessed upon that aggregate.

The order should be affirmed, with costs.

Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur; Conway,-J., taking no part.

Order affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Seymour Friend, Respondent, against Lewis J. Valentine, as Commissioner of the Department of Police of the City of New York, et al., Appellants.
    Argued January 22, 1942;
    decided March 5, 1942.

      William C. Chanler, Corporation Counsel (David Du Vivier and Paxton Blair of counsel), for appellants.
    The Appellate Division was without power to compel the police commissioner to oust the sergeants from the switchboards and to force appointments from petitioner’s list to perform the duties now being performed by the sergeants. (Matter of Turel v. Delaney, 287 N. Y. 15; Matter of Jaffe v. Board of Education, 240 App. Div. 402; 265 N. Y. 160.)

      Samuel A. Spiegel for respondent.
   Per Curiam.

On the former appeal in this case (see 285 N. Y. 764 and 853) we held that the Police Commissioner-could not appoint to the positions of telephone operator in the police department, persons from the civil service eligible list for patrolmen, nor could the Commissioner continue in those telephone operator positions, persons whom he had theretofore appointed to those positions from the patrolman list. We stated specifically, however (285 N. Y. 853) that the Commissioner was not required to fill the vacancies in the position of telephone operator. (See Matter of Turel v. Delaney, 287 N. Y. 15.) It follows that the Commissioner may, in his discretion as an administrator and without interference from any court, cause the switchboards in the police department to be operated by persons already employed in the police department, so long as he does not make any new appointments to the particular position of telephone operator. The order of the Appellate Division, as now resettled, has the effect of forbidding the physical operation of the switchboards by any persons not appointed from the civil service telephone operator list on which appear the names of petitioners-respondents. Such a holding is in conflict with our decision on the former appeal to this court in this case, is erroneous as matter of law, and must be reversed.

The order of resettlement should be reversed, without costs. (See 287 N. Y. 835.)

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

Order reversed.


text:
    Florence Shinbaum et al., Respondents, v. Ella M. Murphy et al., Defendants, and Cross & Brown Company, Appellant.
    Argued January 19, 1942;
    decided March 5, 1942.

      William E. Lyons for appellant.
    Murphy had full and complete freedom of activity in his capacity as real estate broker without control, supervision or direction by the company. His status was established as a matter of law to be that of an independent contractor for whose tortious acts in the operation of his own automobile the company cannot be held responsible. (Wyllie v. Palmer, 137 N. Y. 248; Osborg v. Hoffman, 252 App. Div. 587; 280 N. Y. 523; Brown v. Steamship Terminal Operating Corp., 267 N. Y. 83; Howitt v. Hopkins, 219 App. Div. 653; 246 N. Y. 604; Dunne v. Contenti, 167 Misc. Rep. 925; 256 App. Div. 833; Malloy v. Scott, 248 App. Div. 882; 275 N. Y. 496; Sudowski v. Toledo Scale Co., 243 App. Div. 553.)

      Sidney Pollack for respondents.
    No error was committed by the trial court when it held as a matter of law that Murphy was an employee of the company and in this case it was responsible for his tortious acts. (Standard Oil Co. v. Anderson, 212 U. S. 215; Burdo v. Metropolitan Life Ins. Co., 4 N. Y. Supp. [2d] 819; 279 N. Y. 648.)
   Per Curiam.

We think the courts below erred in declaring as an inference of law that the codefendant Murphy was the servant of the defendant-appellant Cross & Brown Company rather than an independent contractor. Whether the one relation or the other existed between them was a question for the jury. (See Fritz v. Krasne, 273 N. Y. 649; Irwin v. Klein, 271 N. Y. 477; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60.)

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Finch, J., taking no part.

Judgments reversed, etc.


text:
    New York Credit Men’s Association, as Trustee in Bankruptcy of Benjamin Balish Company, Inc., Appellant, v. Carl I. Dingfelder et al., Respondents.
    Argued January 22, 1942;
    decided March 5, 1942.

      Max Freund for appellant.
    Loans to stockholders are expressly prohibited by section 59 of the Stock Corporation Law (Cons. Laws, ch. 59) and such loans to Balish, therefore, could not be authorized even by all the stockholders of the company. (Kent v. Quicksilver Mining Co., 78 N. Y. 159; Continental Securities Co. v. Belmont, 206 N. Y. 7; Schwab v. Potter Co., 194 N. Y. 409; Deitrick v. Greaney, 309 U. S. 190; Republican Art Printery, Inc., v. David, 173 App. Div. 726; Murray v. Smith, 166 App. Div. 528; McCandless v. Furlaud, 296 U. S. 140; Ward v. City Trust Co., 192 N. Y. 61; Squire v. Ordemann, 194 N. Y. 394; Cohnfeld v. Tanenbaum, 176 N. Y. 126.)

      Harry Weinberger, Chester A. Pearlman and W. E. Aronberg for respondents.
    Section 59 of the Stock Corporation Law, imposing liability on officers and directors for loans to stockholders, does not impose any duty or liability on a payee of corporate paper where all the stockholders consent and the corporation is solvent. (Billings v. Trask, 30 Hun, 314; Stols v. Ginsburg, 217 App. Div. 701; 245 N. Y. 519;
      Martindale v. DeKay, 101 Misc. Rep. 728; 180 App. Div. 926; 224 N. Y. 585; Osborn v. Montelac, 89 Hun, 167; 153 N. Y. 672; Moch Co. v. Security Bank of New York, 176 App. Div. 842; Martin v. N. F. P. Mfg. Co., 122 N. Y. 165; Little v. Garabrant, 90 Hun, 404; 153 N. Y. 661; Steinway v. Steinway, 2 App. Div. 301; 157 N. Y. 710; McCandless v. Furlaud, 296 U. S. 140; Quintal v. Fidelity & Deposit Co., 142 Misc. Rep. 657; 238 App. Div. 820; Old Dominion Copper Mining Co. v. Lewisohn, 210 U. S. 206; Ahlheim & Co. v. Syracuse Cold Storage Co., 242 App. Div. 897; Charles Broadway Rouss, Inc., v. Cooper, 69 Fed. Rep. [2d] 671.)
   Per Curiam.

The corporation paid no money to its president, but, upon his express or implied promise to repay, the corporation made a direct payment upon the obligation of the president incurred by him in the purchase of property which he transferred to the corporation. The corporation was formed to acquire that property and could not carry on its business without it. The evidence sufficiently shows that the corporate payment was made primarily for the benefit of the corporation and with the consent, express or implied, of all the directors and stockholders. We hold that a payment so made does not violate the provisions of section 59 of the Stock Corporation Law (Cons. Laws, ch. 59). We consider no other question.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Lehman, Ch. J.

text:
    Katherine McGoldrick, Respondent, v. Family Finance Corporation, Appellant.
    Argued January 6, 1942;
    decided March 5, 1942.

      Julius Winn for appellant.
    The acceptance by a licensed lender of' an accommodation co-maker who is already indebted as a borrower does not violate the provisions of article 9 of the Banking Law (Cons. Laws, ch. 2) provided the aggregate amount of the total indebtedness does not exceed $300. (Goldberg v. Albert, 161 Misc. Rep. 281; Domestic Finance Corp. v. Zcerwinski, 29 N. Y. Supp. [2d] 588; Blanchard v. Blanchard, 201 N. Y. 134.) An accommodation co-maker is not a borrower. (Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499; Wilson v. Randall, 67 N. Y. 338; Geiler v. Littlefield, 148 N. Y. 603; Wills v. Investors Bankstocks Corp., 257 N. Y. 451; Payne v. Gardiner, 29 N. Y. 146; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Jacobs v. Monaton Realty Inv. Corp., 212 N. Y. 48; Buckingham v. Corning, 91 N. Y. 525; Vilas & Bacon v. Jones & Piercy, 1 N. Y. 274; Blanchard v. Blanchard, 201 N. Y. 134; Goldberg v. Albert, 161 Misc. Rep. 281.)

      William H. Schreiber and Samuel Lander for respondent.
    The judgment was just and proper. (Wolf v. City of New York, 175 Misc. Rep. 569; Family Finance Corp. v. Miick, 176 Misc. Rep. 753; Capital Loan & Sav. Co. v. Biery, 134 Ohio St. 333; Houghton v. Thomas, 220 App. Div. 415; 248 N. Y. 523; Regal Shoe Co. v. General Outdoor Adv. Co., 250 App. Div. 54; 276 N. Y. 522; Horn v. Bennett, 253 App. Div. 630; Blair v. Wait, 69 N. Y. 113; Matter of Radnor, 36 Fed. Supp. 964; Vaughn v. Graham, 121 S. W. Rep. [2d] 222; London Realty Co. v. Riordan, 148 App. Div. 854; 207 N. Y. 264; Equity Service Corp. v. Agull, 250 App. Div. 96.)
   Lehman, Ch. J.

The defendant corporation is engaged in “ the business of making loans of money, credit, goods, or things in action in the amount or of the value of three hundred dollars or less * * It has obtained a license from the Superintendent of Banks in accordance with the provisions of article IX of the Banking Law (Cons. Laws, ch. 2), and it may charge, contract for and receive interest not exceeding three per centum per month on any part of the unpaid principal balance of the loan not in excess of one hundred and fifty dollars and two and one-half per centum per month on any remainder of the unpaid principal balance of the loan.” (§352.) To protect borrowers against devices calculated to thwart the purpose of the restriction upon the interest it may charge, the same section provided: “No licensee shall induce or permit any borrower or borrowers to split up or divide any loan or loans nor shall any licensee permit any borrower, nor any husband and wife individually or together, to be indebted to him under more than one contract of loan at the same time.”

In June, 1938, the plaintiff borrowed from the defendant the sum of $100. As security for the loan the plaintiff executed and delivered an assignment of her wages to the defendant. In September, 1938, while the sum of $85 remained unpaid upon the loan, the defendant loaned the sum of $180 to one James J. Golden and his wife, Margaret Golden, and received a note for that amount, signed by them and by this plaintiff as co-maker, which, among other things, provided .that “ we, the undersigned, jointly and severally, promise to pay to the order of Family Finance Corporation * * * One Hundred Eighty Dollars,” and that “ the undersigned acknowledges receipt of a loan in the amount of $180 from Family Finance Corporation.” The plaintiff at the same time executed and delivered to the defendant another assignment of her wages as security for her obligation under the note which she signed for the accommodation of the borrowers.

Thereafter the loan of $100 to the plaintiff was increased to the sum of $140 and a note was executed by the plaintiff for that amount. At that time the loan to James J. Golden and his wife had been reduced and the total of the loan made to them and the loan to the plaintiff has at all times been under the sum of $300. In February, 1940, after default in payment of the note which the plaintiff had signed as co-maker for the accommodation of the Goldens, the defendant filed with plaintiff’s employer the wage assignment executed by the plaintiff to secure her obligation upon that note. The wage assignment given by the plaintiff to secure repayment of the loan made to her has never been filed.

The Banking Law provides that the violation of the provisions of specified sections of the statute, including section 352, shall constitute a misdemeanor and that any contract of loan not invalid for any other reason, in the making or collection of which any act shall have been done which constitutes a misdemeanor under this section, shall be void and the lender shall have no right to collect or receive any principal, interest, or charges whatsoever.” (§ 358.) The plaintiff, claiming that the defendant was guilty of a misdemeanor when it made the loan in September, 1938, evidenced by the note which the plaintiff signed as co-maker while the plaintiff remained indebted to the defendant upon the loan made to her in June of that year, and thereafter was again guilty of misdemeanor when the loan made to her in June was refinanced ” or increased to the sum of $140 while she remained indebted to the defendant upon the note she signed as co-maker, has brought an action to compel the defendant to cancel and surrender the notes and wage assignments given in connection with such violations. After the answer was filed, judgment in favor of the plaintiff was granted upon the plaintiff’s motion.

The note which the plaintiff signed as co-maker for the accommodation of James J. Golden and his wife in order to enable them to borrow money from the defendant, constitutes, it is clear, a “ contract of loan ” and under that contract the plaintiff assumed an unconditional obligation to pay the loan. Though the relationship between an accommodation party to an instrument and the person accommodated may be analogous to that of principal and surety, an accommodation maker is liable to a holder for value of the instrument in accordance with the terms of the instrument, unaffected by the fact that the consideration for the making of the instrument was paid to another. (Negotiable Instruments Law, § 55 [Cons. Laws, ch. 38]). Under the contract embodied in the note the plaintiff assumed the liability of a principal, not the liability of a surety. (National Citizens’ Bank v. Toplitz, 81 App. Div. 593; affd., but on a different ground, 178 N. Y. 464.) It follows that the defendant violated the provisions of section 352 of the Banking Law when it permitted the plaintiff to become or remain indebted to it under the contract of loan made to the plaintiff and at the same time under the contract of loan to the Goldens, which the plaintiff agreed to pay by signing the note as a co-maker for the borrowers. (See Westville & Hamden Loan Co. v. Pasqual, 109 Conn. 110.) Possible doubt as to the nature and effect of the contract of loan evidenced by the note signed by the plaintiff as co-maker and secured by the assignment of her wages, would be removed by the provisions of section 355 of the statute. The plain language of the statute cannot be changed by any administrative ruling. Nor can the courts grant exemption from the penalty imposed by the statute.

The judgment should be affirmed, with costs.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.


text:
    In the Matter of the Claim of Sylvia Perry. Western Perishable Carload Receivers Association of New York, Inc., Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.

      Argued January 8, 1942;
    decided March 5, 1942.

      Joseph D. Nunan, Jr., Clifford S. Bostwick and Douglas H. Thayer for appellant.
    The claimant was not an employee of the appellant, being neither subject to its control nor engaged in its work. (Irwin v. Klein, 271 N. Y. 477; Matter of Beach v. Velzy, 238 N. Y. 100; Standard Oil Co. v. Anderson, 212 U. S. 215; Matter of Cunningham, 255 App. Div. 729; Brown v. Munn Piano Co., 172 App. Div. 372.) The claimant was an employee of a bureau of the Department .of Agriculture which was rendering a service authorized and prescribed by Congress. (Standard Oil Co. v. Anderson,
      212 U. S. 215; Irwin v. Klein, 271 N. Y. 477; Matter of Beach v. Velzy, 238 N. Y. 100.)

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan, Henry Epstein and Francis R. Curran of counsel), for respondent.
    Claimant was an employee of appellant. (Standard Oil Co. v. Anderson, 221 U. S. 215; Matter of Batter, 257 App. Div. 546; 282 N. Y. 722; Matter of Kinney, 257 App. Div. 496; 281 N. Y. 840; Matter of Morton, 284 N. Y. 167.) Claimant was not an employee of the Department of Agriculture. (White v. Boland, 254 App. Div. 356; Helvering v. Therrell, 303 U. S. 218; Matter of Kinney, 257 App. Div. 496; 281 N. Y. 840.)
   Lehman, Ch. J.

The claimant, Sylvia Perry, was employed as a clerk in the office of the United States Department of Agriculture in New York city. She was selected for her position by an inspector of the department. She worked under his supervision. Her duties were defined by the department. Her salary was fixed by the department. She was subject to discharge by the department. She was not subject to the orders of any person connected with the Western Perishable Carload Receivers Association and, indeed, had no direct contact of any kind with that association, but she was employed to perform work in connection with Federal inspection service for condition only of fresh vegetables and/or fruits received by the members of said Association,” which the Bureau of Agricultural Economics, Department of Agriculture, agreed to provide in accordance with the terms of a Memorandum of Agreement ” between the Bureau and the association.

No duty is imposed by any federal statute upon the Department of Agriculture to furnish inspection service to determine the condition of vegetables or fruit transported in interstate commerce, but under the terms of the Perishable Agricultural Commodities Act of 1930 (U. S. Code, tit. 7, ch. 20-A), the Secretary of Agriculture is “ authorized, independently and in cooperation with other branches of the Government * * * and /or any person * * * to employ and/or license inspectors to inspect and certify, * * * to any interested person the class, quality, and /or condition of any lot of any perishable agricultural commodity when offered for interstate or foreign shipment or when received at places where the Secretary shall find it practicable to provide such service, under such rules and regulations as he may prescribe, including the payment of such fees and expenses as will be reasonable and as nearly as may be to cover the cost for the service rendered * * *.” (§ 499-n.)

The inspection and certification by the Department of Agriculture of the class, quality or condition of perishable commodities offered or received in interstate commerce may be a service of practical value to shipper or consignee or carrier. No duty to pay the cost of inspection is, by the statute, imposed upon any person who does not desire to obtain such service but, under the terms of the statute, a consignor or a consignee or an association of consignors or consignees may voluntarily agree to pay the cost and expense of a beneficial service sought by such consignor or consignee or association.

Such an agreement was made in this case, and under the terms of the written “ Memorandum of Agreement ” it was stipulated that the association should pay the cost of the service of inspection of shipments to its members and that, “ Specifically, the Association shall pay the salaries of the supervising inspector or inspectors, of the necessary clerks and of the inspectors. The latter shall be selected, trained, licensed, and supervised by the Bureau, which will approve the scale of salaries paid. The Federal supervisor will determine the detailed assignments of the men from day to day and by the week or month.”

Pursuant to that agreement inspectors “ trained, licensed, and supervised by the Bureau ” have been inspecting and certifying the condition of shipments received by members of the association in New York city and the necessary clerks ” have been employed in the office of the Bureau. The monthly payroll of the persons employed for that purpose is sent to the association and the salaries of all employees upon the payroll are paid by the association from a fund collected from its members. The question presented upon this appeal is whether these employees are entitled to benefits from the unemployment insurance fund established by article 18 of the Labor Law (Cons. Laws, ch. 31), added by chapter 468 of the Laws of 1935, and whether the association is their “ employer ” as that term is defined in the statute and is liable for contributions to the fund based upon the salaries of these employees.

The service of the Department of Agriculture in inspecting and certifying the condition of agricultural commodities consigned to the members of the association is rendered at the request of the association and for the benefit of its members. The members of the association sought that service because the statute provides that official inspection certificates for fresh fruits and vegetables issued by the Secretary of Agriculture * * * shall be received by all officers and all courts of the United States ” in specified proceedings and transactions as prima-facie evidence of the truth of the statements therein contained.” (§ 499-n.) Only agents of the Department of Agriculture make an official inspection or issue, in the name of the Secretary, an official inspection certificate. The statute does not confer upon the Secretary of Agriculture power to issue an official inspection certificate where the inspection has been made by agents or employees of a private person even though such private person might be willing to delegate to the Secretary the power to select the inspectors, fix their salaries, and supervise their work. The association has agreed to pay the cost of service which an agency of the United States government was authorized to render and which, from its nature, only such an agency could render. The association had no right under the statute or under the terms of the agreement, to employ these persons, to discharge them, to fix their number or their salaries, or to supervise or direct their work. The fact that the association, in the performance of its contractual obligation to pay such costs, paid by its own checks the salaries of the persons employed in rendering that service, as shown on the payroll prepared by the government agency, instead of reimbursing the agency for the expenses paid by the agency, did not and could not make those persons the agents or employees of the association.

. Under the terms of section 502, subdivision 3, paragraphs 3 (b) and (c), of the Labor Law, an employer ” is, in circumstances therein specified, deemed to employ ” all employees employed by a person with whom the employer ” contracts for any work which is part of such employer’s usual trade, occupation, profession or enterprise.” That provision has no application here. The association has not contracted with the Department of Agriculture for any work which is part of the association’s work. On the contrary, the persons who claim that they are employees of the association are employed on work which the association was not authorized to perform and could not perform.

The Department of Labor and the Appellate Division have found support for the claim that these persons are employees of the association rather than employees of the government, in the fact that they were not required to take a civil service examination and were not eligible for any pension or other employment benefit usually accorded to government employees. Irregularity, if irregularity there was, in the employment of persons by the Department of Agriculture could not make such persons employees of the association when they were employed upon work which only the government could do, and were selected and directed by governmental agents.

The order of the Appellate Division should be reversed and the decision of the Unemployment Insurance Appeal Board annulled, with costs in this court and in the Appellate Division.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order reversed, etc.


text:
    In the Matter of the Claim of Florence M. Roth, Respondent, against A. C. Horn Company et al., Appellants. State Industrial Board, Respondent.
    Submitted October 8, 1941;
    decided November 19, 1941.

      Clarence B. Tippett for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Henry Epstein of counsel), for State Industrial Board.
   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 Peter La Duke against John D. Martin, Respondent. State Industrial Board, Appellant.
    Argued October 9, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for appellant.

      F. Claude O’Connell for respondent.
   Order affirmed, with costs against the State Industrial Board. No opinion.

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


text:
    In the Matter of City Bank Farmers Trust Company, as Trustee, Appellant and Respondent, against Mark Graves et al., Constituting the State Tax Commission, Respondents and Appellants.
    Argued October 9, 1941;
    decided November 19, 1941.

      Carter T. Louthan for petitioner, appellant and respondent.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell P. Brown), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Walter D. Teague, Respondent, against Mark Graves et al., Constituting the State Tax Commission, Appellants.
    Argued October 13, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (John H. Spain and Wendell P. Brown of counsel), for appellants.

      George H. Schwartz, William C. Mayer and Saul J. Lance for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Jack Waldman, Appellant.
    Submitted October 14, 1941;
    decided November 19, 1941.

      Samuel Hassen and Samuel Bernstein for appellant.

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

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


text:
    In the Matter of Wilbur D. Lockwood, Appellant, against J. Henry Ekstrom et al., Constituting the Board of Supervisors of Putnam County, Respondents. Grace A. Reavy et al., Constituting the Civil Service Commission of the State of New York, Interveners, Respondents.
    Argued October 6, 1941;
    decided November 19, 1941.

      Paul L. Bleakley for appellant.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness of counsel), for State Civil Service Commission, respondent.

      John E. Mack and Bradford Klock for Board of Supervisors, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for Opening and Extending East River Drive from Grand Street to Montgomery Street, in the Borough of Manhattan. Estate of Charles A. Coe et al., Respondents.
    Argued October 8, 1941;
    decided November 19, 1941.

      William, C. Chanler, Corporation Counsel (Daniel M. Cohen, Julius Isaacs and Lewis Orgel of counsel), for appellant.

      Matthew J. Glennon and Harley L. Stowell for Estate of Charles A. Coe, respondent.

      Charles Lamb and William Alston Lamb for Edith M. K. Wetmore, 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 Joseph Dworak against E. Greenbaum Co. et al., Respondents. State Industrial Board, Appellant.
    Argued October 8, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for appellant.

      Anthony J. Caputo and Byron Clark for respondents.
   Order affirmed, with costs against the State Industrial Board. No opinion.

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


text:
    In the Matter of the Claim of William E. Madelung, Respondent, against Dale Radio Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued October 9, 1941;
    decided November 19, 1941.

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

Concur; Lehman, Ch. H., Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Thomas C. Wylie, Respondent, v. Fred P. Stevens, Appellant.
    Submitted October 9, 1941;
    decided November 19, 1941.

      Ransom Pratt for appellant.

      Ray S. Cooper for respondent.
   Appeal dismissed, with costs, on the ground the order does not finally determine the action within the meaning of the Constitution. No opinion.

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


text:
    In the Matter of the Will of David C. McCombs, Deceased. Clara A. Cuddeback et al., Appellants; Henry G. McCombs et al., Respondents.
    Argued October 9, 1941;
    decided November 19, 1941.

      Samuel M. Cuddeback for Clara A. Cuddeback et al., appellants.

      Stephen W. Zeh for Henry G. McCombs et al., respondents.
   Order affirmed, with one bill of costs to appellants and one bill of costs to respondents payable out of the estate. No opinion.

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


text:
    In the Matter of the Claim of Patrick J. Hanrahan, Respondent. Interstate Home Equipment Company, Inc., Appellant; Frieda S. Miller, as Industrial Commissioner, Respondent.
    Submitted October 10, 1941;
    decided November 19, 1941.

      Percy G. Smith for appellant.

      John J. Bennett, Jr., Attorney-General (Francis R. Curran and Henry Epstein of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Whi-Dye, Inc., Respondent, v. Commissioners of State Insurance Fund, Appellants.
    Argued October 13, 1941;
    decided November 19, 1941.

      Harry Schechter, William H. Stieglitz and William F. O’Rourke for appellants.

      David N. Aberman 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, Respondent, v. Frank Richardson, Appellant.
    Submitted October 14, 1941;
    decided November 19, 1941.

      Emil J. Reigi for appellant.

      Frank H. Innes, District Attorney (Thomas K. Hall of counsel), for respondent.
   Judgments reversed and information dismissed on the ground that the evidence was not sufficient to warrant the finding of guilt beyond a reasonable doubt. No opinion.

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


text:
    In the Matter of the Probate of the Will of Sarah Isham, Deceased. Stanton Lowe et al., Appellants; Harold T. Smith, as Executor, Respondent.
    Argued October 16, 1941;
    decided November 19, 1941.

      S. J. Mauhs for appellants.

      Wallace H. Sidney for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

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


text:
    In the Matter of the Liquidation of National Surety Company. Ætna Casualty and Surety Company et al., Appellants; Louis H. Pink, Superintendent of Insurance of the State of New York, as Liquidator of National Surety Company, Respondent.
    Argued October 6, 1941;
    decided November 19, 1941.

      David S. Konheim, Samuel Halpern and Anthony J. Wolf for appellants.

      J. Francis Lynch, William A. J. Sheehan and Edward F. Keenan for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Eda W. Semken, Deceased. New York Association for the Blind, Appellant; George H. Semken, Individually and as Executor, et al., Respondents.
    Argued October 8, 1941;
    decided November 19, 1941.

      Matthew B. Sentner for appellant.

      Frank C. Laughlin and Joseph W. Kirkpatrick for George H. Semken, individually and as executor, respondent.
   Order affirmed, with costs to the respondent Semken, individually and as executor, payable out of the estate. No opinion.

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


text:
    In the Matter of the Claim of Anna Kristianson against Rita Lehman et al., Appellants. State Industrial Board, Respondent.
    Argued October 8, 1941;
    decided November 19, 1941.

      William, S. Sinclair and George J. Stacy for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), 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 Joseph Lanzetta, Respondent, against Allied Decorating Co., Inc., et al., Appellants. State Industrial Board et al., Respondents.
    Submitted October 9, 1941;
    decided November 19, 1941.

      Irvin A. Snyder for appellants.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for State Industrial Board, respondent.

      William F. O’Rourke and George J. Hayes for State Insurance Fund, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Moran Towing and Transportation Company, Respondent, v. John J. Fleming, Appellant.
    (Appeal No. 1.)
    Argued October 19, 1941;
    decided November 19, 1941.

      Paul G. Reilly and George McKinley for appellant.

      John F. X. Finn and Albert Bonynge for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

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


text:
    Moran Towing and Transportation Company, Respondent, against John J. Fleming, Appellant.
    (Appeal No. 2.)
    Argued October 9, 1941;
    decided November 19, 1941.

      Paul G. Reilly and George McKinley for appellant.

      John F. X. Finn and Albert Bonynge for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Accounting of Anne M. McCormick, as Committee of the Estate of Annie O’Reilly, an Incompetent, Respondent. Katherine E. Nolan, as Administratrix of the Estate of John C. Reilly, Deceased, Appellant; The People of the State of New York et al., Respondents.
    Submitted October 10, 1941;
    decided November 19, 1941.

      John F. Brennan for appellant.

      Solomon Silverstein and Antonio M. Caridi, in person, for Antonio M. Caridi, special guardian, respondent.

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for The People of the State of New York, respondent.
   Order affirmed, with costs to the special guardian payable out of the estate of the incompetent; no opinion.

Concur: Lehman, Ch. J., Finch, Rippey, Lewis and Desmond, JJ. Dissenting: Loughran and Conway, JJ., on the ground that the weight of evidence lies with the finding in the Special Term.


text:
    Robert E. Lee et al., Appellants, v. Elsa H. Silver, an Infant, et al., Respondents.
    Argued October 13, 1941;
    decided November 19, 1941.

      Morton Miller and Bernard L. Miller for appellants.

      Jacob Goldberg for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Harold Emerson, Respondent, v. Mary Lincoln Candies, Inc., Appellant.
    Argued October 14, 1941;
    decided November 19, 1941.

      Charles J. Wick for appellant.

      Israel Rumizen 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:
    In the Matter of the Accounting of Frank J. Kruppenbacher et al., as Trustees under the Will of Frederick Ziegler, Deceased, Respondents. Katie Ziegler et al., Appellants.
    Submitted October 6, 1941;
    decided November 19, 1941.

      Edward A. Alexander for appellants.

      Ulysses S. Adler 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 John J. McCann et al., Appellants, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Defendants; Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants; and Richard Welling, Intervener, Defendant and Respondent.
    Argued October 7, 1941;
    decided November 21, 1941.

      Menahem Stim and Thomas J. Curran for petitioners, appellants.

      William C. Chanter, Corporation Counsel (David DuVivier and Paxton Blair of counsel), for defendants, appellants.

      Samuel M. Birnbaum for American Legion, Department of New York, amicus curix.

      Harold A. Felix for Veterans of Foreign Wars of the United States et al., amici curix.

      Frank S. Parmenter, Corporation Counsel, for City of Troy, amicus curix.

      H. Eliot Kaplan for Richard Welling, intervener, defendant, respondent.

      Albert De Roode for John J. Tangney et al., amici curix.

   Order affirmed, without costs. Assuming that in terms chapter 784 of the Laws of 1941 applied to these petitioners, the statute violates the Constitution. No opinion.

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


text:
    In the Matter of Max Englander, as Administrator of the Estate of Betty Englander, Deceased, et al., Respondents, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants.
    Argued October 8, 1941;
    decided November 19, 1941.

      William C. Chanler, Corporation Counsel (Lewis Orgel and Julius Isaacs of counsel), for appellants.

      Harold Krieger for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Frank Hamilton, Respondent, against Landau Amusement Corporation et al., Appellants. State Industrial Board, Respondent.
    Argued October 8, 1941;
    decided November 19, 1941.

      J. Francis Hayden and Charles E. Powers 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:
    Francis Dean, Appellant, v. John P. O’Flaherty, Respondent.
    Submitted October 9, 1941;
    decided November 19, 1941.

      George H. Fox for appellant.

      Joseph A. Butler for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. James Carr, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted October 10, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (Edward T. Boyle and Patrick H. Clune of counsel), for respondent.
   Order affirmed, without costs, on the authority of People v. Heath (237 App. Div. 209) and People v. Coleman (237 App. Div. 211); appeal dismissed (261 N. Y. 662); reviewed and reaffirmed (240 App. Div. 947; 264 N. Y. 536). No opinion.

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


text:
    International Underwear Corporation, Respondent, v. Brooklyn Trust Company, Appellant.
    Argued October 13, 1941;
    decided November 19, 1941.

      Dimitri G. S. Eristoff for appellant.

      Milton Levitan, Edgar T. Schleider and I. Gainsburg for respondent.
   Order affirmed, with costs, and question certified answered in the negative. No opinion.

Concur f Lehman, Ch. J., Loughkan, Finch, Rippey, Lewis, Conway and Desmond, JJ.


text:
    Elmira Savings and Loan Association, Respondent, v. George H. Spring, Appellant.
    Submitted October 13, 1941;
    decided November 19, 1941.

      Gaylord Riggs for appellant.

      Harry Moseson 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 James Dalton against City of Yonkers, Respondent. State Industrial Board, Appellant.
    Argued October 9, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for appellant.

      Leonard G. McAneny, Corporation Counsel (William F. Cauley, Jr., of counsel); for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    William Graf, Respondent, v. State of New York, Appellant.
    (Claim No. 25602.)
    Submitted October 20, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (James H. Glavin, Jr., and John M. Dooley of counsel), for appellant.

      Arthur B. Towne 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 Estate of Anthony Dugro, Deceased. Francis A. Dugro et al., Appellants; Dorothea W. Dugro, II, et al., Respondents.
    Argued October 6, 1941;
    decided November 19, 1941.

      Louis Stone, Howard O. Patterson and Joseph L. Maged for appellants.

      John L. Delius and Thomas R. Purcell for Dorothea W. Dugro, II, 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 and Desmond, JJ.


text:
    In the Matter of Carmelo Miceli et al., Appellants, against Board of Education of the City of New York, Respondent.
    Submitted October 7, 1941;
    decided November 19, 1941.

      Herman E. Cooper and Herbert C. Kane for appellants.

      William C. Chanler, Corporation Counsel (Edward J. McCratty, Jr., and Nicholas Bucci of counsel), 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 Dorothy Lewis, Respondent, against Hotel St. Regis et al., Appellants. State Industrial Board et al., Respondents.
    Argued October 8, 1941;
    decided November 19, 1941.

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

      Frederick H. Van Houten for claimant, respondent.

      Joseph F. Donovan for Music Corporation of America et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Francis Kinnerney, Appellant, against Municipal Civil Service Commission of the City of Hornell, Respondent.
    Argued October 9, 1941;
    decided November 19, 1941.

      W. Earle Costello for appellant.

      Harry L. Allen for respondent.
   Order affirmed, without costs; no opinion. (See 287 N. Y. 754.)

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


text:
    DiMarco & Ciccone, Inc., Respondent, v. Travelers Indemnity Company, Appellant.
    Argued October 10, 1941;
    decided November 19, 1941.

      John G. Donovan, William J. Moran and Louis P. Galli for appellant.

      Charles D. Lewis and Henry E. Stohldreier for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Clara Yude, Appellant, v. Joseph Cruise et al., Defendants, and City of New York, Respondent.
    Submitted October 10, 1941;
    decided November 19, 1941.

      George F. Reid and John M. Keating for appellant.

      William C. Chanler, Corporation Counsel (Paxton Blair and William Mason Smith, Jr., of counsel), for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    Delia Sheffield, an Infant, by Alfred Sheffield, Her Guardian ad Litem, et al., Plaintiffs, v. John C. Yager et al., Appellants, and Joseph Beaury, Respondent.
    Submitted October 17, 1941;
    decided November 19, 1941.

      William B. Shelton and William J. McArthur for appellants.

      Frederic J. Locker and E. C. Sherwood for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mabel S. Freeman, as Administratrix with the Will Annexed of the Estate of Elbridge H. White, Deceased, Appellant, v. Mutual Life Insurance Company of New York, Respondent.
    Argued October 6, 1941;
    decided November 19, 1941.

      Rowland H. Long for appellant.

      John G. Kelly and Louis W. Dawson 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 Sylvia L. Resnick, Appellant, against Irving V. A. Huie, as Commissioner of Public Works of the City of New York, et al., Respondents.
    Submitted October 7, 1941;
    decided November 19, 1941.

      Abraham J. Feitelberg for appellant.

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of Alberta R. Smith, Appellant, against William Hodson, as Commissioner of the Department of Welfare of the City of New York, et al., Respondents.
    Submitted October 7, 1941;
    decided November 19, 1941.

      Abraham J. Feitelberg for appellant.

      William C. Chanler, Corporation Counsel (Charles F. Murphy and Paxton Blair of counsel), 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 Claim of George S. Layton, Sr., against Spear & Company et al., Respondents. State Industrial Board, Appellant.
    Submitted October 9, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for appellant.

      Joseph F. Donovan for respondents.
   Order affirmed, with costs against State Industrial Board. No opinion.

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


text:
    Mary A. Daly, Respondent, v. William Terpening, Appellant.
    Argued October 9, 1941;
    decided November 19, 1941.

      Robert E. Dineen for appellant.

      Thomas F. Zaia for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of Elick Lowitz et al., Individually and as Copartners under the Firm Name of E. Lowitz & Co., Appellants, against Mark Graves et al., Constituting the State Tax Commission, Respondents. (2 Proceedings.)
    Argued October 10, 1941;
    decided November 19, 1941.

      Benjamin M. Kaye and Arthur Kahr for appellants.

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Wendell P. Brown of counsel), for respondents.
   Order affirmed, without costs; no opinion.

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


text:
    Anne Ritholtz, Appellant, v. Alvin A. Licht et al., Defendants, and Joseph G. Cohen, Respondent.
    Argued October 13, 1941;
    decided November 19, 1941.

      Max Orstein for appellent.

      William Macy for respondent.
   Judgment affirmed, with costs; no opinion. (See 287 N. Y.761.)

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


text:
    Margaret H. Mason, Individually and as Administratrix of the Estate of Roy D. Hammond, Deceased, Respondent, v. Town of Andes, Appellant. Milford B. Butler, Individually and as Guardian ad Litem of Lloydrick Butler, an Infant, Respondent, v. Town of Andes, Appellant.
    Argued October 16, 1941;
    decided November 19, 1941.

      Donald H. Grant, Francis A. Niles and Charles B. Johnson for appellant.

      Arthur F. Curtis for respondents.
   Judgments affirmed, with costs; no opinion.

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


text:
    Hedwig Rosin et al., Respondents, v. Riggs Restaurant, Inc., Appellant.
    Submitted October 17, 1941;
    decided November 19, 1941.

      Joseph S. Robinson for appellant.

      Joseph B. Kenny, Harry B. Chambers, Harry H. Chambers, Charles F. McGrath and Morris Packer 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 Jule L. Maisel et al., Appellants; Jacob J. Schwartzwald et al., Respondents.
    Argued October 6, 1941;
    decided November 19, 1941.

      Jule L. Moisei, in person, and George Sutter for appellants.

      Louis B. Heller for Jacob J. Schwartzwald et al., respondents.

      William G. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for Board of Elections, respondent.
   Appeal dismissed, without costs, on the ground that the record does not present the general question of law which the appellants seek to bring up for review. No opinion.

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


text:
    In the Matter of the Claim of Michael Krevac, Respondent, against 310 East 55th Street, Inc., et al., Appellants. State Industrial Board, Respondent.
    Argued October 8, 1941;
    decided November 19, 1941.

      Leonard J. Lindenbaum for appellants.

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum and Joseph A. McLaughlin 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:
    In the Matter of the Claim of Sanford Butterfield against Oscar G. Brown, Respondent. State Industrial Board, Appellant.
    Argued October 9, 1941;
    decided November 19, 1941.

      John J. Bennett, Jr., Attorney-General (John F. Loehr of counsel), for appellant.

      Frederick Boyce Bryant for respondent.
   Order of Appellate Division reversed and award of State Industrial Board affirmed, with costs in this court and in the Appellate Division upon the ground that there is evidence to sustain' the finding that the claimant was engaged in a hazardous employment for pecuniary gain within the provisions of the Workmen’s Compensation Law. No opinion.

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


text:
    In the Matter of the Estate of Victoria Morris, Deceased. Seamen’s Church Institute of New York, Appellant; Board of Regents of the University of Michigan et al., Respondents.
    Argued October 9, 1941;
    decided November 19, 1941.

      George Gray Zabriskie for appellant.

      Paul B. Barringer, Jr., for Board of Regents of the University of Michigan, respondent.

      John F. Boyer for Sterling St. John et al., as executors of Victoria Morris, deceased, respondents.
   Order affirmed, with costs to all parties appearing separately and filing briefs payable out of the estate. No opinion.

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


text:
    In the Matter of Fidel Association of New York, Incorporated, Respondent; Frieda S. Miller, as Industrial Commissioner, Appellant.
    Submitted October 10, 1941;
    decided November 19, 1941.

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

      Joseph R. Kelley for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Sarah M. Lynn et al., as Trustees under the Will of John Lynn, Deceased. Eric V. Smaje, Individually and as Executor of Edgar A. Lynn, Deceased, Appellant; Mariano Rodriguez et al., Respondents.
    Argued October 13, 1941;
    decided November 19, 1941.

      James J. McLoughlin and Robert F. White for appellant.

      Donald T. Mullane, Harold V. Dixon, Louis O. Imperato, Edwin E. Singer and S. Earl Levene for Mariano Rodriguez, respondent.

      Alexander R. Kellegrew for Sarah M. Lynn et al., as trustees under the will of John Lynn, deceased, respondents.
   Order affirmed, with costs to all parties appearing and filing separate briefs payable out of the estate. 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. Isaac Richardson, Appellant.
    Argued October 16, 1941;
    decided November 19, 1941.

      Charles Horowitz, Miles M. O'Brien and Arthur A. Madison for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Alexander Herman of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Henry A. Nau, Respondent, v. Vulcan Rail & Construction Company, Appellant.
    Submitted October 20, 1941;
    decided November 19, 1941.
   Motion for reargmnent or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 188.)


text:
    Fred Wolff, Appellant, v. City of New York, Respondent.
    Submitted October 20, 1941;
    decided November 19, 1941.

      Charles J. Klyde and Irving M. Berry for motion.

      William C. Chanler, Corporation Counsel (Paxton Blair and Milton I. Newman of counsel), opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, upon the ground that this court is without power to grant leave to appeal in an action commenced in the Municipal Court of the City of New York.


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property Required for the Opening of East River Drive, in the Borough of Manhattan. The Meenan Coal Co., Inc., Respondent.
    Argued October 21, 1941;
    decided November 27, 1941.

      William C. Chanler, Corporation Counsel (Lewis Orgel, Julius Isaacs and Joseph F. Mulqueen, Jr., of counsel), for appellant.

      Charles Lamb and William Alston Lamb for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Christ Pappas, Appellant.
    Submitted October 22, 1941;
    decided November 27, 1941.

      Max Epstein for appellant.

      Thomas E. Dewey, District Attorney {Richard G. Denzer arid Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; 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. Henry Ancrum and Ralph G. Jones, Appellants.
    Argued October 16, 1941;
    decided November 27, 1941.

      Louis K. Wasser, Myron Sulzberger, Jr., Lucius L. Delany and Isidor Enselman for Henry Ancrum, appellant.

      Moses A. Sachs, Homer I. Harris, Charles Pilatsky and Thomas B. Dyett for Ralph G. Jones, appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Eugene A. Leiman of counsel), for respondent.
   Judgments of conviction affirmed; no opinion. (See 287 N. Y. 746.)

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


text:
    Betty L. Schmelzel, Respondent, v. Clarence Schmelzel, Appellant.
    (Appeal No. 2.)
    Argued October 7, 1941;
    decided November 27, 1941.

      J. Fearon Brown for appellant.

      Sidney M. Wittner for respondent.
   Appeal dismissed, with costs, on the ground the order is not a final order. No opinion. (See 287 N. Y. 752.)

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


text:
    In the Matter of Minnie Young, Appellant, against Frederick J. H. Kracke et al., Constituting the Board of Assessors of the City of New York, Respondents.
    Argued October 21, 1941;
    decided November 27, 1941.

      Bernard L. Bermant and George Bergen for appellant.

      Herman Spingarn, amicus curiae.

      William C. Chanler, Corporation Counsel (Paxton Blair, Julius Isaacs and Alfred D. Jahr of counsel), for respondents.
   Order affirmed, without costs; no opinion. (See 287 N. Y. 754.)

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


text:
    Joseph Riedel Glass Works, Inc., Appellant and Respondent, v. Francis W. Kurtz & Co., Inc., Defendant. William O. Van Keegan, Respondent and Appellant.
    Argued October 21, 1941;
    decided November 27, 1941.

      Barnett L. Kulak for plaintiff, appellant and respondent.

      Milton H. Greenwald, George H. Zator and Solomon Goldman for William O. Van Keegan, respondent and appellant.
   On appeal by Van Keegan: Order affirmed, with costs. On appeal by Joseph Riedel Glass Works, Inc.: Appeal dismissed, with costs. No opinion.

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


text:
    John R. LeFrancois, Respondent, v. Hobart College et al., Appellants.
    Submitted October 24, 1941;
    decided November 27, 1941.

      Robert E. Dineen for appellants.

      M. Maurice Chacchia for respondent.
   Order affirmed, with costs. Questions certified answered in the negative. Appeal from judgment dismissed, without 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. Arthur Renna, Appellant.
    Argued October 15, 1941;
    decided November 27, 1941.

      Leo H. Klughers, Albert H. Vitale, Michael A. DiSalvo, Irving J. Goldsmith and Fannie Rosen for appellant.

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

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


text:
    Helen Eifert, as Administratrix of the Estate of John Eifert, Deceased, Respondent, v. United States Fidelity and Guaranty Company, Appellant.
    Argued October 21, 1941;
    decided November 27, 1941.

      William Dike Reed and William J. McArthur for appellant.

      Jules Chopak for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nicholas Cirillo, Appellant, v. City of New York, Respondent.
    Argued October 22, 1941;
    decided November 27, 1941.

      Eugene A. Sherpick, Harold R. Medina, William Gilbert, James J. Regan and William W. Jackson for appellant.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Henry J. Shields of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Francis J. Ryan, Jr., as Assignee, Appellant, v. Philip Berkowitz et al., Defendants, and Abraham Adisky et al., Respondents.
    Submitted October 23, 1941;
    decided November 27, 1941.

      Henry H. Silverman, Edward Elman, Albert Ornstein and Milton Rosenberg for appellant.

      David Katz, Joseph M. Proskauer and Albert L. Solodar for Abraham Adisky, respondent.

      Max Rothenberg and Morris H. Epstein for Nat Goodside, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Harold F. Miller, Respondent, v. Continental Casualty Company, Appellant.
    Argued October 22, 1941;
    decided November 27, 1941.

      Andrew Eckel and William F. Giesen for appellant.

      Alfred B. Nathan 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 Accounting of United States Trust Company of New York, as Trustee under the Will of Catherine James, Deceased, Respondent. Helen V. Z. Anthony et al., Appellants.
    Argued October 23, 1941;
    decided November 27, 1941.

      Eli J. Blair for appellants.

      M’Cready Sykes and George L. Shearer for respondent.
   Order affirmed, with costs; no opinion. (See 287 N. Y. 754;)

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


text:
    Miriam Imbrey, Appellant, v. Prudential Insurance Company of America, Respondent.
    Submitted October 20, 1941;
    decided November 27, 1941.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 434.)


text:
    In the Matter of Triboro Coach Corporation et al., Respondents, against New York State Labor Relations Board et al., Appellants.
    Submitted October 20, 1941;
    decided November 27, 1941.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 286 N. Y. 314.)


text:
    The People of the State of New York, Respondent, v. Carl Skarczewski, Appellant.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Daniel J. O’Mara, District Attorney (.Harry L. Rosenthal of counsel), for motion.

      Charles J. Mondo opposed.
   Motion denied, default opened and case set down for argument during the second week of the January, 1942, session.


text:
    Nyck Kotyk, Appellant, v. Realty Hotels, Inc., Respondent.
    Submitted November 17, 1941;
    decided November 27, 1941.

      James J. Reilly, William B. Butler and Stephen J. Jarema for motion.

      Clarence S. Zipp, William S. O’Connor and Daniel Miner opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that no final judgment has been rendered.


text:
    The People of the State of New York, Respondent, v. Emma Martin, Appellant.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Robert S. Long, District Attorney, for motion.

      F. Claude O’Connell opposed.
   Motion denied, default opened and case set down for argument during second week of January, 1942, session.


text:
    Opera on Tour, Inc., Appellant, v. Joseph N. Weber, as President of American Federation of Musicians, et al., Respondents.
    Submitted November 17, 1941;
    decided November 27, 1941.
   Motion for reargument or to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 348.)


text:
    Salvatore Messina, Appellant, v. United States Gypsum Company, Respondent.
    Submitted November 17, 1941;
    decided November 27, 1941.
   Motion to amend the remittitur denied, with ten dollars costs' and necessary printing disbursements. (See 286 N. Y. 644.)


text:
    Gomay Realty Corporation et al., Appellants, v. Municipal Mutual Corporation et al., Respondents.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Jacob Chaitkin for motion.

      Bernard Fein opposed.
   Motion dismissed, with ten dollars costs and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. Fred Sardo, Harold Costello and Peter Scalzo, Appellants.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Daniel J. O’Mara, District Attorney (Stephen K. Pollard of counsel), for motion.

      Abraham Roth opposed.
   Motion denied, default opened and case- set down for argument during second week of January, 1942, session.


text:
    Ida B. Lenetsky, Appellant, v. Dime Savings Bank of Brooklyn, Respondent.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Gregory A. Lee for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant serves and files undertaking on appeal and pays ten dollars costs within ten days, in which event the motion is denied.


text:
    The People of the State of New York ex rel. Vincent Mummiani, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted November 17, 1941;
    decided November 27, 1941.

      John J. Bennett, Jr., Attorney-General (Everett D. Mereness of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Toy T. Roberts et al., Appellants, v. Peter Larsen et al., Respondents.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Seymour Kempner for motion.
    No one opposed.
   Motion dismissed, with ten dollars costs, and necessary printing disbursements, on the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Betty Crosney, as Administratrix with the Will Annexed of Sam Bernard, Deceased, Respondent, against F. D’Onofrio, Inc., Judgment Debtor, et al., Appellants.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Julian Buchbinder and Samuel Sprung for motion.

      Abraham Shamos opposed.
   Motion by individual defendants granted and leave to appeal by corporate defendant denied, with ten dollars costs and necessary printing disbursements, on the ground that as to it the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. Theophilus Ward against The County Court of Kings County, Respondent.
    Submitted November 17, 1941;
    decided November 27, 1941.

      Theophilus Ward, in person, for motion.

      William O’Dwyer, District Attorney (Henry J. Walsh of counsel), opposed.
   Motion denied upon the ground that it does not appear that any appeal can be taken to this court.


text:
    Haven P. Page, Respondent, v. Charles H. Payne, Appellant.
    Submitted November 17, 1941;
    decided November 27, 1941.

      George Gordon Battle for motion.

      Charles J. Her son opposed.
   Motion denied, without costs.


text:
    In the Matter of Anello Mellilo et al., Appellants, against Frederick J. H. Kracke et. al., Composing the Board of Assessors of the City of New York, et al., Respondents. In the Matter of Kazimierz Kolczynski et al., Appellants, against Frederick J. H. Kracke et al., Composing the Board of Assessors of the City of New York, et al., Respondents. In the Matter of Teddy Skovronsky, Appellant, against Frederick J. H. Kracke et al., Composing the Board of Assessors of the City of New York, et al., Respondents.
    Submitted November 17, 1941;
    decided November 27, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellants serve and file undertaking on appeal and pay ten dollars costs within ten days, in which event the motion is denied.


text:
    Arthur H. Franklin, as Treasurer of the New York Stock Exchange, et al., Respondents, v. Fairman R. Dick et al., as Trustees of the Gratuity Fund of the New York Stock Exchange, Appellants.
    Argued October 24, 1941;
    decided December 4, 1941.

      George H. Corey and William, Man Parkhurst for appellants.

      Harrison Tweed, W. Rice Brewster, Daniel G. Tenney, Jr., and Harry F. Bliss, Jr., for respondents.
   Judgment affirmed, without 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. Joseph Gennaro, Appellant.
    Argued October 16, 1941;
    decided December 4, 1941.

      Abraham J. Gellinoff for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Harris B. Steinberg of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Ida H. Wind, on Behalf of Herself and Other Stockholders of Consolidated Edison Company of New York, Inc., et al., Appellants, Impleaded with Others, v. Consolidated Edison Company of New York, Inc., et al., Respondents, Impleaded with Others.
    Submitted October 14, 1941;
    decided December 4, 1941.

      Samuel J. Levinson, Frank Weinstein, Peter J. Haberkorn and Henry Krinsky for appellants.

      Thomas H. Beardsley for Consolidated Edison Company of New York, Inc., respondent.

      Horace R. Lamb and Thomas F. Fennell, II, for Floyd L. Carlisle, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Lewis and Conway, JJ. Dissenting: Finch and Desmond, JJ., who vote to reverse as to the third and fourth causes of action; and Rippey, J., who votes to reverse as to all causes of action.


text:
    In the Matter of Bond and Mortgage Guarantee Company. Paragon Land Corporation et al., Appellants; Joseph P. Day et al., as Trustees, Respondents.
    Submitted November 24, 1941;
    decided December 4, 1941.

      Fred L. Gross for motion.

      Samuel Okin opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Robert Blumenthal et al., as Executors of Adolph Blumenthal, Deceased, Appellants, v. Equitable Life Assurance Society of the United States, Respondent.
    Submitted November 17, 1941;
    decided December 4, 1941.

      Frederick E. Crane, Lawrence S. Timen and Emil H. Wasserberger for motion.

      James D. Ewing, William R. McDermott and Eugene Z. DuBose opposed.
   Motion denied, with ten dollars costs and necessary-printing disbursements, on the ground that the order does not finally determine the action within the meaning of the constitution.


text:
    Frank Grimes, Respondent, v. Shell Union Oil Corporation, Appellant.
    Submitted November 17, 1941;
    decided December 4, 1941.

      Carl O. Olson for motion.

      J. Stanley Carter opposed.
   Per Curiam.

Plaintiff-respondent moves to dismiss the defendant’s appeal “ on the ground that defendant-appellant has failed and neglected to serve appellant’s briefs -within the time provided in Rule 7 of the Rules of the Court of Appeals.” The rule does not require any party to have a brief.

Motion denied without prejudice to an application by plaintiff for an order that defendant may not now serve or file a brief.


text:
    In the Matter of the Accounting of Walter R. Sturr, as Executor of Hattie C. Marvin, Deceased. New York Annual Conference of the Methodist Episcopal Church, Appellant; Craigsville Bible Church, Inc., et al., Respondents.
    Submitted November 18, 1941;
    decided December 10, 1941.

      H. Westlake Coons for appellant.

      William A. Mayo for Craigsville Bible Church, Inc., respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Marion M. Hovey, Respondent, v. State of New York, Appellant.
    (Claim No. 25129.)
    Argued November 17, 1941;
    decided December 10, 1941.

      John J. Bennett, Jr., Attorney-General {James H. Glavin, Jr., and Owen M. Begley of counsel), for appellant.

      Chandler S. Knight for respondent.
   Judgment afiirmed, with costs; no opinion.

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


text:
    In the Matter of the Will of Gustave Selner, Deceased. Charles S. Selner et al., as Executors and Trustees under the Will of Gustave Selner, Deceased, Appellants; John C. Selner, as Administrator of the Estate of Henry Selner, Deceased, et al., Respondents.
    Argued November 18, 1941;
    decided December 10, 1941.

      Homer I. Harris for appellants.

      Frederick A. Keck, special guardian for Milton Cohen, an incompetent person.

      Denis M. Hurley, Pierre J. Sherry and Peter B. Hanson for John C. Seiner, as administrator, respondent.
   Order affirmed, with costs to all parties appearing and filing separate briefs payable out of the estate. No opinion.

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


text:
    Ruth V. Morse, Respondent, v. State of New York, Appellant.
    (Claim No. 25464.)
    Submitted December 8, 1941;
    decided December 10, 1941.

      John J. Bennett, Jr., Attorney-General (Burns F. Barford and James H. Glavin, Jr., of counsel), for appellant.

      Julius Applebaum for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    In the Matter of Herman M. Albert, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York et al., Appellants.
    Argued December 10, 1941;
    decided December 10, 1941.

      William C.. Chanler, Corporation Counsel (William S. Gaud, Jr., Seymour B. Quel and Stanley Buchsbaum of counsel), for appellants.

      Sidney Sugarman• and Fred S. Weitzner for respondent.
   Order of Appellate Division reversed and that of Special Term affirmed, without costs, on the authority of Burke v. Kern (287 N. Y. 203). No opinion.

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


text:
    Edgar V. Anderson, Appellant, v. Taconic State Park Commission et al., Respondents.
    Argued November 17, 1941;
    decided December 10, 1941.

      Charles A. Butts and James E. Carroll for appellant.

      John J. Bennett, Jr., Attorney-General (Leo G. Hosenfeld, Henry Epstein and Hugh Reilly of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Taylor-Fichter Steel Construction Co., Inc., Appellant, v. Niagara Frontier Bridge Commission, Respondent.
    Argued November 18, 1941;
    decided December 10, 1941.

      M. Carl Levine, David Morgulas and Albert Foreman for appellant.

      Barent L. Visscher, George G. Davidson, Jr., E. J. Dimock and Allen R. Henderson for respondent.

      John J. Bennett, Jr., Attorney-General (Henry Epstein and

      John C. Crary, Jr., of counsel, for State of New York, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    Christiana Loehr, Appellant, v. East Side Omnibus Corporation, Respondent.
    Argued November 17, 1941;
    decided December 10, 1941.

      William Harvey Smith and Solomon Kaufman for appellant.

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

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

Motion to dismiss appeal denied.


text:
    In the Matter of the Estate of Henry G. Bohner, Deceased. Alois S. Bohner, Appellant; Mary E. Bohner, as Executrix of Henry G. Bohner, Deceased, Respondent.
    Argued November 18, 1941;
    decided December 10, 1941.

      J. Craig Roberts for appellant.

      Anthony F. Vaho for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Margaret H. Kerr, as Administratrix of the Estate of Thomas N. Kerr, Deceased, Respondent, v. St. Luke’s Hospital et al., Appellants.
    Argued November 17, 1941;
    decided December 10, 1941.

      Rogers H. Bacon, Reginald V. Spell, Matthew E. Lawless and Edward D. Burns for appellants.

      Samuel Silverman and Frank P. Luongo for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    Elizabeth L. George, Appellant, v. Harvey O. Dobson et al., as Executors of James J. Fox, Deceased, Defendants, and Robert A. Black et al., Respondents.
    Argued November 18, 1941;
    decided December 10, 1941.

      George J. Warmund for appellant.

      Frederick Sheffield, Bertram F. Willcox and James P. Cronan, Jr., 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 County of Suffolk, Respondent. William E. Skillman, Appellant.
    Argued November 17, 1941;
    decided December 10, 1941.

      William E. Skillman, in person, and Arthur T. Sawyer for appellant.

      Edgar F. Hazleton, County Attorney (David Clickman of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    In the Matter of the Accounting of Mary Dixon, as Committee of the Estate of Michael Dixon, an Incompetent Person, Respondent. Frank T. Hines, as Administrator of Veterans’ Affairs, Appellant.
    Submitted November 18, 1941;
    decided December 10, 1941.

      William A. Gillcrist and James A. Clark for appellant.

      Theodore K. McCarthy and Harry Bijur for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Percy M. Mott, Appellant, v. Alexander Moldenhauer, Respondent.
    Submitted October 6, 1941;
    decided December 10, 1941.

      Arthur B. Ewig for motion.

      Guido J. Napoletano opposed.
   Motion granted and appeal dismissed, without costs.


text:
    The People of the State of New York ex rel. Stanley Smith, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted November 17, 1941;
    decided December 10, 1941.

      Stanley Smith, in person, for motion.
    No one opposed.
   Motion denied on the ground that this court has no power to grant leave to appeal from the interlocutory order of the Appellate Division.


text:
    Victor R. Gerber, Respondent, v. Daniel Thron, Appellant.
    Submitted November 17, 1941;
    decided December 10, 1941.

      Irving E. Kanner for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Walker Memorial Baptist Church, Inc., Respondent, v. John W. Saunders et al., Appellants.
    Submitted November 24, 1941;
    decided December 10, 1941.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 285 N. Y. 462.)


text:
    Wolcott Cook et al., Respondents, v. Laura M. Gill et al., Individually and as Executors of Frank B. Gill, Deceased, Appellants.
    Submitted December 1, 1941;
    decided December 10, 1941.
   Motion for reargument granted upon filing a complete record. (See 285 N. Y. 780; 286 N. Y. 720.)


text:
    Meyer A. Novick, Respondent, v. Hulda Davidson, Appellant, Impleaded with Another.
    Submitted December 1, 1941;
    decided December 10, 1941.

      Benjamin M. Goldstein for motion.
    No one opposed.
   Motion granted and appeal dismissed, with ten dollars costs.


text:
    Catherine F. Laughlin, as Administratrix of the Estate of Hugh E. Laughlin, Deceased, Respondent, v. New York Power & Light Corporation, Appellant.
    Argued November 25, 1941;
    decided January 8, 1942.

      John H. Broderick and Henry S. Bayly for appellant.

      Thomas V. Kenney 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. 342 East 57th Street Corporation, Appellant, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, et al., Respondents.
    Submitted November 27, 1941;
    decided January 8, 1942.

      Jerome 8. Hess, Louis Russell and Monroe H. Collenburg for appellant.

      Finis E. Montgomery for Metropolitan Life Insurance Company, respondent.

      William C. Chanter, Corporation Counsel (.Anthony Curreri and Arthur H. Goldberg of counsel), for defendants, respondents.
   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. Andrew Savino, Appellant.
    Argued November 28, 1941;
    decided January 8, 1942.

      David M. Markowitz for appellant.

      Thomas E. Dewey, District Attorney (Eugene A. Leiman and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; 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. New York Title and Mortgage Company against William S. Miller et al., Defendants. The People of the State of New York ex rel. 1200 Madison Avenue Corporation against William S. Miller et al., Defendants. (Two Proceedings.) The People of the State of New York ex rel. Brooklyn Trust Co., as Trustee, against William S. Miller et al., Defendants. (Two Proceedings.) In the Matter of 1200 Madison Avenue Corporation, Appellant; Brooklyn Trust Company, as Trustee, Respondent.
    Argued December 2, 1941;
    decided January 8, 1942.

      Alexander Pfeiffer and Clarence S. Barasch for appellant.

      Leon Leighton for respondent.

      William C. Chanter, Corporation Counsel (Anthony Curreri and Arthur H. Goldberg of counsel), for Comptroller of the City of New York.
   Order affirmed, with costs; no opinion. (See 287 N. Y. 838.;

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


text:
    The People of the State of New York ex rel. Lemphis Jones, Appellant, against Joseph H. Brophy, as Warden of Auburn State Prison, Respondent.
    Submitted December 3, 1941;
    decided January 8, 1942.

      Lemphis Jones, appellant, in person.

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

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


text:
    Eugene Zaia, an Infant, by John J. Zaia, His Guardian ad Litem, et al., Appellants, v. Lalex Realty Corporation, Respondent, Impleaded with Others.
    Submitted December 4, 1941;
    decided January 8, 1942.

      Myron Wisoff and Louis Rothbard for appellants.

      Clarence S. Zipp and Hobart R. Marvin 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 Ragnhild Christiansen, Respondent, against Hill Reproduction Company et al., Appellants. State Industrial Board, Respondent.
    Argued November 24, 1941;
    decided January 8, 1942.

      Frank L. Ward for appellants.

      Charles J. Nehrbas for respondent.

      John J. Bennett, Jr., Attorney-General, for State Industrial Board.
   Order affirmed, with costs; no opinion.

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


text:
    Long Island Lighting Company, Appellant, v. Milo R. Maltbie et al., Individually, and as Members of the Public Service Commission of the State of New York, et al., Respondents.
    Argued November 25, 1941;
    decided January 8, 1942.

      Charles G. Blakeslee, John J. Donohue, Elmer B. Sanford and Edward J. Crummey for appellant.

      Gay H. Brown, Laurence J. Olmsted and Sherman C. Ward for Public Service Commission, 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 Estate of Peter Maul, Deceased. Lynda M. Maul, Appellant; John C. Maul, as Executor, Respondent.
    Submitted November 27, 1941;
    decided January 8, 1942.

      James I. Cuff and James I. McGuire for appellant.

      Harry D. Sanders for respondent.

      Elijah W. Holt, special guardian for Florence M. Maul, an incompetent person.
   Order affirmed, without costs; no opinion.

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


text:
    Chemical Bank & Trust Company et al., as Executors of Edgar P. Lawson, Deceased, Respondents, v. Jeanne Lawson, Appellant and Respondent; Nancy B. Williams et al., Respondents and Appellants, and Lawson Williams et al., Respondents, Impleaded with Others.
    Argued December 4, 1941;
    decided January 8, 1942.

      Martin Conboy, Ernest E. Wheeler and Davis Asch for Jeanne Lawson, appellant and respondent.

      John Caldwell Myers, as guardian ad litem, and John F. Keating for Nancy B. Williams et al., infants, respondents and appellants.

      Benjamin Wiener, Herman M. Brauner and Herman Goldman for plaintiffs, respondents.

      Allan S. Locke for Lawson Williams et al., defendants, respondents.

      John C. Spallone and William Levin in person, for William Levin, respondent.
   Judgment affirmed, with costs payable out of the fund to all parties except the defendants-respondents Lawson Williams, Willie Williams, Lela Hartman Lawson and Willoughby Williams. No opinion.

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


text:
    Edward T. Howe, Respondent, v. Medical Arts Center Hospital, Appellant.
    Argued December 9, 1941;
    decided January 8, 1942.

      Richards W. Hannah and Wilbur H. Hecht for appellant.

      Hyman I. Fischbach and John J. Corwin 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 Will of Frederick K. James, Deceased. Burton W. James, Appellant; Putnam County National Bank of Carmel et al., Respondents.
    Argued November 18, 1941;
    decided January 8, 1942.

      James F. Donnelly, James Dempsey and Mitchell W. Alexander for appellant.

      John E. Mack for respondent.
   Order affirmed, with costs to each party filing a brief payable out of the estate; no opinion.

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


text:
    In the Matter of the Will of Frederick K. James, Deceased. Burton W. James, Appellant; Julia Webber et al., Respondents.
    Argued November 18, 1941;
    decided January 8, 1942.

      James F. Donnelly, James Dempsey and Mitchell W. Alexander for appellant.

      John E. Mack for respondents.
   Order affirmed, with costs to each party filing a brief payable out of the estate; 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. George Cvek, Appellant.
    Argued November 25, 1941;
    decided January 8, 1942.

      Martin Benjamin, Harry G. Anderson, Bernard C. McDonnell and Leo L. Sormani, for appellant.

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

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


text:
    Grace G. Hess, as Executrix of Christina Stowell, Deceased, Appellant, v. Clarence D. Stowell, Defendant, and Grace G. Hess, Respondent.
    Argued November 29, 1941;
    decided January 8, 1942.

      Thomas B. Preston and Francis Preston for appellant.

      James C. Tormey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of The Sicilian Asphalt Paving Company, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.
    Argued December 1, 1941;
    decided January 8, 1942.

      William C. Chanler, Corporation Counsel (Paxton Blair, Sol Charles Levine and Isaac C. Donner of counsel), for appellant.

      James J. McLoughlin and Robert F. White for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Mary T. McCaffry, as Administratrix of the Estate of James McCaffry, Deceased, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    Argued December 2, 1941;
    decided January, 8, 1942.

      Arthur D. Brennan, James D. Hopkins and Henry R. Barrett for appellant.

      Arthur O. Lipinski for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna Srogi, as Administratrix of the Estate of Walter Srogi, Deceased, Respondent, v. New York Central Railroad Company, Appellant.
    Argued December 3, 1941;
    decided January 8, 1942.

      H. Duane Bruce for appellant.

      Oliver D. Burden and Russell E. Harrington for respondent.
   Judgment affirmed, with costs; no opinion.

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