author: Conway, J. Desmond, J.

text:
    In the Matter of Mary I. Daniman et al., Appellants, against Board of Education of the City of New York, Respondent. In the Matter of Vera Shlakman et al., Appellants, against Board of Higher Education of the City of New York, Respondent.
    Argued November 24, 1953;
    decided April 22, 1954.

      Paxton Blair and Harold

      I. Cammer for Mary I. Daniman and others, appellants. I. The State has never conferred the power on municipalities to prescribe the qualifications, or the terms and conditions of employment, of teachers. In line with this State policy and the decisions giving effect to it, the phrase “ employee of the city ” in section 903 of the New York City Charter must be denied the capacity to embrace teachers. (Gunnison v. Board of Educ. of City of New York, 176 N. Y. 11; Titusville Iron Co. v. City of New York, 207 N. Y. 203; Matter of Hirshfield v. Cook, 227 N. Y. 297; Matter of Emerson v. Buck, 230 N. Y. 380; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125; Matter of Fuhrmann v. Graves, 235 N. Y. 77; Matter of Brennan v. Board of Educ. of City of N. Y., 245 N. Y. 8; Matter of Divisich v. Marshall, 281 N. Y. 170; Matter of Ragsdale v. Board of Educ. of City of N. Y., 282 N. Y. 323; Nelson v. Board of Higher Educ. of City of N. Y., 263 App. Div. 144, 288 N. Y. 649.) II. The phrase “ any legislative committee ”, etc., in section 903 of the New York City Charter does not include this subcommittee of Congress. The context shows it is confined to legislative committees authorized to inquire into the “ property, government or affairs ” of the city. (Covell v. Heyman, 111 U. S. 176; People v. Gutterson, 244 N. Y. 243; Matter of Donegan, 282 N. Y. 285; Matter of Cohen, 254 App. Div. 571, 278 N. Y. 584; People ex rel. Marks v. Brophy, 293 N. Y. 469; Matter of Commonwealth of Kentucky v. Dennison, 24 How. [U. S.] 66; Newton v. Commissioners, 100 U. S. 548; Trenton v. New Jersey, 262 U. S. 182; Williams v. Mayor of Baltimore, 289 U. S. 36.) III. Qualifications upon the tenure principle established by sections 2573 and 6206 of the Education Law can only be made by State law, and not by local laws or charters. (Sharkey v. Thurston, 268 N. Y. 123; People ex rel. Elkind v. Rosenblum, 184 Misc. 916, 269 App. Div. 859, 295 N. Y. 929.)

      Ephraim S. London and Sherman P. Kimball for Harry Slochower, appellant.
    I. Dr. Slochower did not refuse to answer any question relating to his conduct as a teacher or relating to the government, property or affairs of the city. Section 903 of the New York City Charter is therefore not applicable. (People ex rel. Garvey v. Prendergast, 148 App. Div. 129; Hale v. Worstell, 185 N. Y. 247; Maggio v. Zeitz, 333 U. S. 56; Wieman v. Updegraff, 344 U. S. 183; Liverpool & London & Globe Ins. Co. v. Nebraska Storage Warehouses, 96 F. 2d 30; Bridges v. Wixon, 326 U. S. 135; Schneiderman v. United States, 320 U. S. 118; De Jonge v. Oregon, 299 U. S. 353; Herndon v. Lowry, 301 U. S. 242; Matter of Grae, 282 N. Y. 428; People ex rel. Taylor v. Forbes, 143 N. Y. 219; Matter of Ellis, 258 App. Div. 558.) II. Appellant Slochower was deprived of property rights without due process of law, in violation of section 10 of article I, and the Fourteenth Amendment of the United States Constitution, and section 6 of article I of the New York Constitution. (United States v. Lovett, 328 U. S. 303; Matter of Hamilton v. Brennan, 203 Misc. 536; Adler v. Board of Educ., 342 U. S. 485; United Public Workers v. Mitchell, 330 U. S. 75; Lanzetta v. New Jersey, 306 U. S. 451; Winters v. New York, 333 U. S. 507; Small Co. v. American Sugar Refining Co., 267 U. S. 233.) III. Section 903 of the New York City Charter is an unconstitutional abridgement of rights guaranteed by section 6 of article I of the New York Constitution. The section is void and of no effect and cannot be held to sanction the appellant’s dismissal. (Matter of Doyle, 257 N. Y. 244; People ex rel. Bolton v. Albertson, 55 N. Y. 50; Matter of Hopper v. Britt, 203 N. Y. 144; People v. Allen, 301 N. Y. 287; Frose v. Railroad Comm., 271 U. S. 583.)

      Denis M. Hurley, Corporation Counsel (Michael A. Castaldi, Seymour B. Quel, Helen R. Cassidy, Bernard Friedlander and Barbara H. Carroll of counsel), for respondents.
    I. Questions asked of a teacher concerning past or present membership in the Communist party relate to the teacher’s official conduct. (Adler v. Board of Educ., 342 U. S. 485; Dennis v. United States, 341 U. S. 494; Communications Assn. v. Douds, 339 U. S. 382; Garner v. Los Angeles Bd., 341 U. S. 716; Matter of

      Rabouine v. McNamara, 301 N. Y. 785; Matter of Adler v. Wilson, 282 App. Div. 418; United States v. Field, 193 F. 2d 92, 342 U. S. 908.) II. Teachers in the public schools and colleges are employees of the City of New York within the purview of section 903 of the New York City Charter. (Matter of Finegan v. Cohen, 275 N. Y. 432; Matter of Mooney v. Cohen, 272 N. Y. 33; Johnson v. City of New York, 274 N. Y. 411; Matter of Tormey v. La Guardia, 172 Misc. 1091, 259 App. Div. 802, 284 N. Y. 607; Eriksen v. City of New York, 167 Misc. 42; Matter of Koral v. Board of Educ. of City of N. Y., 197 Misc. 221; Matter of Goldway v. Board of Higher Educ. of City of N. Y., 178 Misc. 1023; Matter of Withrow v. Joint Legislative Comm., 176 Misc. 597; Matter of Hirshfield v. Cook, 227 N. Y. 297; Gunnison v. Board of Educ. of City of N. Y., 176 N. Y. 11; Matter of Dobrovolny v. Prendergast, 219 N. Y. 280; Clarke Co. v. Board of Educ. of City of N. Y., 156 App. Div. 842, 215 N. Y. 646; Lewis v. Board of Educ. of City of N. Y., 258 N. Y. 117; McCabe v. Gross, 274 N. Y. 39; Metzger v. Swift, 258 N. Y. 440; Matter of Kelly v. Board of Educ. of City of N. Y., 234 App. Div. 239, 259 N. Y. 518.) III. A United States Senate subcommittee investigating the operation of internal security laws is a legislative committee within the meaning of section 903 of the New York City Charter. (People v. Lafaro, 250 N. Y. 336; Matter of Smith v. Kern, 175 Misc. 937, 260 App. Div. 1003, 285 N. Y. 632; People ex rel. McDonald v. Keeler, 99 N. Y. 463; People ex rel. Karlin v. Culkin, 248 N. Y. 465; Matter of Edge Ho Holding Corp., 256 N. Y. 374; Matter of Joint Legislative Comm. [Teachers Union], 285 N. Y. 1; Matter of La Guardia v. Smith, 176 Misc. 482, 262 App. Div. 708, 288 N. Y. 1.) IV. The provisions of section 903 of the New York City Charter are self-executing. A hearing is neither required nor necessary. (Canteline v. McClellan, 282 N. Y. 166; Matter of Hulbert v. Craig, 124 Misc. 273, 213 App. Div. 865, 241 N. Y. 525; Matter of Tormey v. La Guardia, 172 Misc. 1091, 259 App. Div. 802, 284 N. Y. 607; Matter of Finegan v. Cohen, 275 N. Y. 432.)

      Robert M. Benjamin and Frank E. Karelsen for Public Education Association, amicus curiæ, in support of appellants’ position.
    Section 903 of the New York City Charter is inapplicable to teachers employed by the board of education or the board of higher education. (Matter of Fuhrmann v. Graves, 235 N. Y. 77.)
   Conway, J.

Petitioners who are teachers — the first group in public schools, the second group in public colleges — were subpoenaed and appeared in September and October of 1952 before Senator Homer Ferguson, sitting in New York as a subcommittee of the Committee on the Judiciary of the Senate of the United States to investigate the administration of the Internal Security Act and other internal security laws.

Among other questions each of the petitioners was asked whether he or she was presently or had ever been a member of the Communist party. Each of them refused to answer, basing the refusal upon the privilege against self incrimination granted by the Fifth Amendment to the United States Constitution.

The board of education and the board of higher education received certified copies of the transcript of the minutes of the hearing. Each of these boards was advised by the corporation counsel of the City of New York that the refusal to answer questions on the only ground which was sustained, viz., the privilege granted by the Fifth Amendment, constituted a refusal to answer the respective questions on the ground that the answer would tend to incriminate within the meaning of section 903 of the New York City Charter and that questions directed to employees of the boards concerning past or present membership in the Communist party constituted an inquiry into the employees’ official conduct within the purview of the same section. Thereupon, the boards adopted resolutions terminating the employment of petitioners and declaring their positions vacant pursuant to the provisions of section 903. There is no claim by petitioners that their refusal to answer the questions based upon the privilege granted them by the Fifth Amendment does not constitute a refusal to answer upon the ground that the answer would tend to incriminate them within the meaning of Charter section 903, but only that the section, for various reasons to be discussed, is not applicable.

In this proceeding we are required to and do accept as truthful petitioners’ assertion that answers to the questions propounded might have tended to incriminate them since that is the only reason that persons questioned by a congressional committee concerning their affiliation with the Communist party are entitled to invoke the protection of the Fifth Amendment to the United States Constitution (see Blau v. United States, 340 U. S. 159). Similarly, we do not presume, of course, that these petitioners by their action have shown cause to be discharged under the Feinberg Law (L. 1949, ch. 360) since no inference of membership in the Communist party may be drawn from the assertion of one’s privilege against self incrimination.

Section 903 reads: “ If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or .having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.” (Emphasis supplied.)

Section 903 is inoperative if the teacher gives either an affirmative or negative answer to the question posed — even though the answer be false. The effect of the answer on the teacher’s fitness to continue teaching is for the board of education or of higher education, and those bodies only, to say. Section 903 becomes applicable only if the teacher witness refuses to answer upon the ground that the answer would tend to incriminate him or her. The teacher alone possesses the power to bring the statute into play. The assertion of the privilege against self incrimination is equivalent to a resignation (Matter of Koral v. Board, of Educ. of City of N. Y., 197 Misc. 221). As the Supreme Court said in Adler v. Board of Educ. (342 U. S. 485, 492, affg. sub nom. Thompson v. Wallin, 301 N. Y. 476): “It is equally clear that they [teachers] have no right to work for the state in the school system on their own terms. [Case cited.] They may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere.” And, many years ago Justice Holmes in McAuliffe v. New Bedford (155 Mass. 216, 220) said similarly: “ The petitioner [a policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him. On the same principle, the city may impose any reasonable condition upon holding offices within its control.”

There is nothing novel about such a statute. Other statutes provide for the vacatur of, or forfeiture of, an office or employment upon the happening of an event specified therein. (See, e.g., Greater New York Charter, § 1549, now New York City Charter, § 895; Matter of Hulbert v. Craig, 124 Misc. 273, affd. 213 App. Div. 865, affd. 241 N. Y. 525; Metzger v. Swift, 231 App. Div. 598; Metzger v. Swift, 258 N. Y. 440; Public Officers Law, § 30; Matter of Buhler, 43 Misc. 140; Ginsberg v. City of Long Beach, 286 N. Y. 400.) The people have similarly provided in our State Constitution as to all public officers who refuse to sign waivers of immunity under certain circumstances (art. I, § 6, and see Cantaline v. McClellan, 282 N. Y. 166, and cases cited therein).

There is no conflict between section 903 of the Charter and equally valid though differing procedures under the Feinberg Law (L. 1949, ch. 360) and under sections 2554, 2573 and 6206 of the Education Law which guarantee to teachers the right to hold their respective positions during good behavior and efficient and competent service and not to be removed except for cause after a hearing by the affirmative vote of a majority of the board. Section 903 of the Charter, the Feinberg Law and sections 2554, 2573 and 6206 of the Education Law are legislative enactments of equal dignity. The sections in the Education Law govern the removal of teachers for cause gen-orally by the board of education and not by the city, whereas the Charter section declares that there shall be a vacatur of office or employment for a particular cause. It merely imposes a condition upon public employment. The legislative acts are to be read in harmony and it is not within our judicial competence to decide for the Legislature, the board of education or the City of Hew York which shall be used.

Following the adoption of the resolutions of the boards terminating the employment of petitioners, they commenced these two article 78 proceedings. Special Term concluded that section 903 applied and had been violated by petitioners. The petitions were dismissed. The Appellate Division, Second Department, affirmed, two Justices dissenting. The majority held that teachers in Hew York City public schools and colleges are city employees within the meaning of Charter section 903; that the Charter section is applicable to a hearing before a Federal legislative committee; that an inquiry into past or present membership in the Communist party is an inquiry regarding official conduct of a city officer or employee; that such inquiry is not barred by the provisions of sections 25 and 26-a of the Civil Service Law; that the Charter is not a local law within the meaning of section 2 of the City Home Buie Law and that the Charter provisions do not abridge the constitutional privilege against self incrimination. The dissenting Justices agreed with the majority that section 903 is applicable to a hearing before a Federal legislative committee; that an inquiry into past or present membership in the Communist party is an inquiry regarding official conduct of a city officer or employee and that the Charter is not a local law within the meaning of the City Home Buie Law. They were at variance, however, with the conclusion of the majority that petitioners were employees of the City of Hew York within the meaning of section 903.

In this court we are all agreed that the Communist party is a continuing conspiracy against our Government. (See, Communications Assn. v. Douds, 339 U. S. 382, 425 et seq.; Dennis v. United States, 341 U. S. 494, 564; Preamble to the Feinberg Law (L. 1949, ch. 360, § 1.) We are also all in agreement that an inquiry into past or present membership in the Communist party is an inquiry regarding the official conduct of an officer or employee of the City of New York. Loyalty to our Government goes to the very heart of official conduct in service rendered in all branches of Government. (See N. Y. Const., art. XIII, § 1; Education Law, § 3002; Civil Service Law, §§ 12a, 30; L. 1951, ch. 233, §§ 1, 8.) Communism is opposed to such loyalty. (Communications Assn. v. Douds, 339 U. S. 382, 425 et seq., supra; Dennis v. United States, 341 U. S. 494, 564, supra.) Internal security affects local as well as National Governments.

We are in disagreement in this court only as to two questions. They are (a) whether the Charter section is applicable to a hearing before a Federal legislative committee and (b) whether the petitioners are employees of the City of New York. All of the six Justices below were in accord in answering (a) in the affirmative.

As to (a), we, the majority, agree with all of the Justices below that section 903 is applicable to a hearing before a Federal legislative committee. The language in section 903 is: “ any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry * * We cannot say that that language excepted a legislative committee of our National Government for we read “ any ” to mean any

As to (b), when the Legislature adopted the Charter of the City of New York and the Administrative Code it declared that it intended to provide an administrative code for the city of New York harmonizing with the provisions of the New York city charter ” (Administrative Code, § 982-1.0) and directed that the code was to be “ construed liberally ”. (Administrative Code, § 982-2.0.) In section 981-1.0 of the Administrative Code the Legislature defined an employee as Any person whose salary in whole or in part is paid out of the city treasury ”. This language cannot be misread. Petitioners are paid by check signed by the city treasurer with funds from the city treasury.

The Education Law (§§ 2553, 6201) empowers the Mayor of the City of New York to appoint the members of 'the board of education and to appoint and remove the members of the board of higher education. The City Charter (§ 522) requires the board of education to submit an annual written report to the Mayor. The Education Law (§§ 2576, 6202) requires both boards to submit to the board of estimate expense budget estimates, just as city departments do (see, also, New York City Charter, § 895); counsel for the city is their counsel (New York City Charter, § 394, subd. a; Matter of Kay v. Board of Higher Educ. of City of N. Y., 260 App. Div. 9, motion for leave to appeal denied 285 N. Y. 859); the boards of education and higher education are before us asserting, not denying, the applicability of section 903 of the City Charter and section 982-1.0 of the Administrative Code to them and the petitioner teachers. We have, in many cases involving teachers, written that in matters strictly educational or pedagogic a board of education is not a department of the city government, but an independent public body; that public education is a State and not a municipal function and that it is the policy of the State to separate matters of public education from the control of municipal government. (Matter of Hirshfield v. Cook, 227 N. Y. 297, 301; Matter of Divisich v. Marshall, 281 N. Y. 170; Titusville Iron Co. v. City of New York, 207 N. Y. 203, 208; Gunnison v. Board of Educ. of City of N. Y., 176 N. Y. 11.) We have in so doing, however, been careful to point out, as already indicated, in Matter of Hirshfield v. Cook (supra) that: “If the state through its legislature intends to make the board of education of the city wholly independent of municipal action and prevent the city or the officers and boards thereof from asserting any authority relating to matters connected with the public schools and the determination of the expenditures therefor, it should be stated by it in such clear language that its intention is ‘ unmistakable ’ ” (pp. 309-310) and that: ‘ while the educational affairs in each city are under the general management and control of the board of education, such board is subject to municipal control in matters not strictly educational or pedagogic. ” (P. 304; emphasis supplied.) Thus, board of education employment must be added to other municipally paid service in determining seniority rights under section 31 of the Civil Service Law. (Matter of Schaefer v. Rathmann, 237 App. Div. 491, 494-495, affd. 262 N. Y. 492); employees of the board of education are employees of the city under section 896 of the New York City Charter making it a crime to conspire to defraud the city (People v. Engel, 200 Misc. 60); the offices of trustee of Hunter College of the City of New York and of members of the board of higher education are offices “ connected with the government of the City of New York ” within the meaning of section 1549 of the Greater New York Charter (now New York City Charter, § 895) which prohibits dual office holding by city officers. (Metzger v. Swift, 258 N. Y. 440, supra; see, also, Education Law, §§ 2554, 2573, 6206; New York City Charter, § 896.)

The State has the power to determine what shall constitute a vacatur of public office or employment and, in enacting statutes, to define the terms used therein as in its wisdom it sees fit. Thus, it may define who are employees of the City of New York and we must accept, the legislative definition as binding upon us. (Matter of Bronson, 150 N. Y. 1; McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 75; People ex rel. Champlin v. Gray, 185 N. Y. 196, 200.) It has made the source of the compensation the determinant factor..

Petitioners are in reality asking us to take the words used to frame concepts affecting the administration of education in matters strictly educational and pedagogic and to enlarge and expand their meaning so as to include something which transcends matters that are strictly educational and pedagogic, on the one hand, and then rewrite the Administrative Code (§ 981-1.0, subd. 7) so that the words Any person whose salary in whole or in part is paid out of the city treasury ” as used to define an employee of the city shall not mean that teachers are employees of the city, although their salaries are paid by check of the city treasurer from the city treasury. This we may not do but must take clear, simple and unambiguous words of the Legislature as we find them. (Meltzer v. Koenigsberg, 302 N. Y. 523, 525; Matter of Rathscheck, 300 N. Y. 346, 350, 353; Matter of Tishman v. Sprague, 293 N. Y. 42, 50.)

Finally, it is urged that at the time the Charter was approved and when it became effective in 1938 the Legislature did not have in mind the specific purpose for which section 903 is now being used. Whether or not that be true is doubtful indeed since the Supreme Court of the United States has upheld the deportation of legally resident aliens because of membership in the Communist party for periods between 1925 and 1939 in Harisiades v. Shaughnessy (342 U. S. 580). Section 903 became effective January 1, 1938. But even if it were to be accepted as true it would be of little moment here. More than fifty years ago in Hudson Riv. Tel. Co. v. Watervliet Turnpike & Ry. Co. (135 N. Y. 393, 403-404), we said: “ The words of the statute are to be interpreted according to their natural and obvious meaning, and, as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. The language, literally construed, includes undiscovered, as well as existing modes of operation. * * * It would be an unjust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scope of their legislation to the present, and to exclude all consideration for the developments of the future.” And only recently in Matter of Di Brizzi (Proskauer) (303 N. Y. 206 [1951]), this court upheld the use of a statute (Executive Law, § 62, subd. 8, now § 63, subd. 8) to permit the creation of a New York State Crime Commission ”, which was originally enacted a few weeks after our entry into World War I as a “ Peace and Safety Act ” (L. 1917, ch. 595) for the purpose of dealing with wartime sabotage, espionage and subversive activities of enemy agents and sympathizers, and the repeal of which the Attorney-General of the State had recommended to the Legislature because it was suited to war conditions ”. (1918 Atty.-Gen. 16.) And so, here, section 903 protects the people of the city and the State’s chartered municipalities from dangers encompassed by the language of the statute, even though the precise danger may not have been envisioned at the moment of passage.

The orders appealed from should be affirmed, without costs.

Desmond, J.

(dissenting). That communism in the United States is a conspiracy against our Government, and that participation in such a conspiracy is entirely inconsistent with the loyalty required from a schoolteacher, are undisputed propositions which do not decide this case. Our duty, on this appeal, as on any other, is to apply the laws of this State as we find them, to communists, noncommunists, and everyone else. No purpose, however high or urgent, suspends the salutary rule not to be stretched to cover situations having no real or reason-that “ statutes, directed against known and stated evils, are able relation to those evils (see McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], §§ 95, 141, 146, and cases cited; also Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44, 45, and Matter of Breen v. New York Fire Dept. Pension Fund, 299 N. Y. 8, 19) ” (Metropolitan Life Ins. Co. v. Durkin, 301 N. Y. 376, 381). If more or different statutes are needed to rid the schools of communist teachers, it is for the Legislature to enact them, and the New York State Legislature has shown no reluctance to do so, nor has this court hesitated to enforce them (see the Feinberg Law ”, Education Law, § 3022, as construed in Thompson v. Wallin, 301 N. Y. 476; Matter of Adler v. Wilson, 282 App. Div. 418, motion for leave to appeal denied 306 N. Y. 981). Ours is the judicial task, limited by judicial powers, of interpreting and applying section 903 of the New York City Charter as enacted in 1938. We find nothing in that section’s language, history or known purposes to justify using it, as it is being used here, as authority for ousting public schoolteachers, employed by respondent board of education, because of their refusals to answer questions put to them by a subcommittee of the United States Senate, appointed to investigate the administration of the Federal Internal Security Laws, as to the teachers’ past or present membership in the Communist party. All sides concede that, aside from the supposed applicability of section 903, the teachers could not be deprived of their positions, for exercising their Fifth Amendment right (see Matter of Grae, 282 N. Y. 428, 434). We turn then to the Charter provision, and we find it clear, concise and complete: “ § 903. * * * If any councilman or other officer or employee of the city shall, after lawful notice or process, wilfully refuse or fail to appear before any court or judge, any legislative committee, or any officer, board or body authorized to conduct any hearing or inquiry, or having appeared shall refuse to testify or to answer any question regarding the property, government or affairs of the city or of any county included within its territorial limits, or regarding the nomination, election, appointment or official conduct of any officer or employee of the city or of any such county, on the ground that his answer would tend to incriminate him, or shall refuse to waive immunity from prosecution on account of any such matter in relation to which he may be asked to testify upon any such hearing or inquiry, his term or tenure of office or employment shall terminate and such office or employment shall be vacant, and he shall not be eligible to election or appointment to any office or employment under the city or any agency.”

Section 903 is inapplicable to these appellants in this situation for at least two separate reasons: first, no appellant is an “ employee of the city ” within the meaning of the law; and, second, the United States Senate group whose questions appellants refused to answer was not authorized to conduct an inquiry into the property, affairs and government of the city or the official conduct of its officers and employees.

First, as to whether these teachers are “ employees of the city ”, section 1 of article XI of our State Constitution makes public education a State function, and the policy of this State for a century has been to separate public education from all other municipal functions and intrust it to independent corporate agencies ” such as boards of education (Gunnison v. Board of Educ. of City of N. Y., 176 N. Y. 11, 23). The board of education is a corporation separate and distinct from the city of New York ” (Titusville Iron Co. v. City of New York, 207 N. Y. 203, 208). Matters of appointment of teachers and permanency of their employment have been, by the State Education Law, taken away from the municipalities and given to the education boards (Matter of Emerson v. Buck, 230 N. Y. 380, 385). The grants of authority to the boards to administer public education within New York City are exclusive, and negative any authority in the city itself to exercise like powers (People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125, 135). The long struggle between the Buffalo board of education and the City of Buffalo, described in Matter of Emerson v. Buck (supra), was ended by this court’s declaration thirty years ago, in Matter of Fuhrmann v. Graves (235 N. Y. 77, 82, 83), that, while the city controls the total amount to be expended for education, it has no control whatever over the manner of its spending (see, also, Matter of Brennan v. Board of Educ. of City of N. Y., 245 N. Y. 8, 14). There followed an impressive train of cases holding that public schoolteachers, in the cities of the State, were employees, not of those cities but of the local boards of education as separate corporate bodies (Matter of Gelson v. Berry, 233 App. Div. 20, 21, affd. 257 N. Y. 551; Matter of Ragsdale v. Board of Educ. of City of N. Y., 282 N. Y. 323, 325; Nelson v. Board of Higher Educ. of City of N. Y., 263 App. Div. 144, 148, affd. 288 N. Y. 649).

It is, therefore, indisputable, not only that the State Constitution and judicially declared State policy bar New York City from the role of “ employer ” of teachers, but, also, that, as between the City of New York and these teachers, there are none of the marks of an employer-employee relationship, since it is not the city, but the separate boards of education, which select and hire the teachers, pay them, control their teaching work, and are empowered to remove them for cause after hearing (see Education Law, § 2, subd. 14; and §§ 2550, 2551, 2573, 3012, 3022, 6206). Statutes and decisions (cited in great numbers in respondent’s brief) relating to other than pedagogical matters or pedagogical personnel have nothing to do with the present problem. The question here is as to whether teachers are “ employees of the city ”. Actually, the only ground suggested for an affirmative answer to that question is the definition in section 981-1.0 of the New York City Administrative Code (a statute separate from, but complementary to, the Charter) of employee ” as “ any person whose salary in whole or in part is paid out of the city treasury.” The salaries of teachers are “ paid out of the city treasury ” from funds there on deposit to the credit of the board of education, but we refuse to believe that this sixteen-word definition, in a general statute not concerned with education, destroys the whole public policy of this State, worked out in more than a century of struggle, of seeing to it that public schoolteachers are definitely not employees of the cities of this State. Until now, there has never been a decision of this court holding any teacher to be an “ employee ” of a city.

A second, and separate, reason why section 903 has no application to this situation is that this Senate subcommittee was not authorized to, and disclaimed any purpose to, conduct an inquiry into New York City’s governmental affairs or the “ official conduct” of any “ employee ” of the city or of the board of education. It may be possible, grammatically, to read the statute’s language: “any legislative committee * * * authorized to conduct any hearing or inquiry ” as unrelated to the later phrases in the same sentence: 1 ‘ regarding the property, government or affairs of the city * * * or regarding the * # * official conduct of any officer or employee of the city But that grammatical possibility is a logical impossibility, and the result would be a statutory monstrosity, whereby an upstate town board or a legislative committee from another State could bring about the firing of a New York City employee because the latter refused to answer the questions of the interlopers, about his official conduct. We do not so construe statutes, especially since we know historically (and as respondents themselves tell us) that section 903 was one of the by-products of the “ Seabury Investigation” of 1932. It is most unlikely that the New York State Legislative Committee, of which Judge Seabury was counsel, or the Legislature itself in setting up the Charter Revision Commission in 1934, or the commission in its 1936 recommendation of a new charter for New York City, or the Legislature or the people of the city in voting for it, intended to deal with a situation where a foreign legislative body might question New York City employees about New York City’s governmental affairs. What section 903 contemplates is an inquiry by a New York State, or New York City, legislative committee or officer or board or body authorized to investigate the city government. This subcommittee of the United States Senate was not and did not on this occasion claim to be such a committee, officer, board or body.

What section 903 means is that a city officer or employee must answer the question of a qualified investigating body concerning the city’s affairs, or concerning the conduct of city business by the questioned city officer or employee, or by any other city officer or employee, or forfeit his employment. When, in 1949, the Legislature determined (see findings attached to L. 1949, ch. 360) that the Communist party had been infiltrating into public employment in the public schools, it passed the appropriate (Feinberg) Act to deal with that situation (Education Law, § 3022). But the 1938 City Charter of New York dealt with something else entirely, that is, with facilitating local and State investigations of New York City affairs. Membership of teachers in the Communist party may, under the Feinberg Law, prove the teacher’s unfitness to be a teacher, and Feinberg Law procedures should be used to bring about any removals for that cause. Refusal of a teacher in a properly authorized investigation, to co-operate by answering questions as to membership in subversive organizations may justify dismissal after hearing, under sections 2573 or 6206 of the Education Law, and those procedures are available and lawful.

In each case, the order should be reversed and the petition granted, with costs in all courts.

Lewis, Ch. J., Froessel and Van Voorhis, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Dye and Fuld, JJ., concur.

Orders affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Thomas J. Rhatigan et al., Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Vincent J. Puglisi, Appellant.
    Argued September 9, 1953;
    decided September 9, 1953.

      Abraham ,J. Gellinoff, S. Philip Cohen and Alfred J. Callahan for appellant.

      George Rosling and Sidney Squire for Thomas J. Rhaligan and another, respondents.
   Order affirmed. (See Matter of Ahern v. Elder, 195 N. Y. 493.) No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Ethel Wexler et al., Respondents, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Victor L. Anfuso et al., Appellants.
    Argued September 9, 1953;
    decided September 9, 1953.

      ■ ' Abraham J. Gellinoff, 8. Philip Cohen and Alfred J. Callahan for appellants.

      George Boding and Sidney Squire for Ethel Wexler and ¡ another, respondents.
   Order affirmed. The enrollment of Puglisi having been properly cancelled under section 332 of the Election Law, the only remaining question is as to the date on which the cancellation became operative. We agree with the courts below that such date is that of the improper enrollment. (See Election Law, § 135, par. 3.) No opinion.

Concur: Lewis, Ch. J., Conway, Dye and Froessel, JJ. Desmond, Fuld and Van Voorhis, JJ., dissent and vote to reverse in the following memorandum: In Matter of Rhatigan v. Power (ante, p. 551), decided herewith, we vote to affirm, since, on the facts found below, Mr. Puglisi’s registration and enrollment were properly stricken from the books, as unlawful, under sections 331 and 332 of the Election Law. However, in Matter of Wexler, there is presented a different question involving the voting rights of thousands of citizens other than Mr. Puglisi. When Mr. Puglisi acted as a member of the committee to fill vacancies, he was performing not a personal, but a representative, function on behalf of the signers of the nominating petitions. At the time he so acted, he was in fact enrolled and was at least a de facto member of the committee (see People v. Cook, 8 N. Y. 67, 87-90). Surely, the signers of the petition did not have to go beyond the enrollment records to determine eligibility for membership on the vacancy committee. We think it farfetched to invalidate the action of the committee and debar from the primary election a borough-wide candidate, because of a discovery that Mr. Puglisi’s own party enrollment had been based on untrue answers, although Mr. Puglisi was entitled and, on the actual facts, qualified for enrollment. Strict construction of the Election Law authorizes cancellation of his registration and enrollment, unlawfully made, but we find no authority or reason for canceling action taken by him as a vacancy committee member, while he was in fact enrolled. The order should be reversed, and the proceeding dismissed.


text:
    In the Matter of Hulan E. Jack, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents, and Chauncey M. Hooper, Respondent. (Two Proceedings.)
    Argued September 9, 1953;
    decided September 9, 1953.

      Carson D. Baker, Jacob Markowitz, Alfred M. Ascione, John B. Sanders and Leonard H. Sandler for appellant.

      Lewis Abrahams for Chauncey M. Hooper, respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Sidney S. Wolchok, Appellant, against James M. Power et al., Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued September 9, 1953;
    decided September 9, 1953.

      Daniel M. Kelly and Sidney S. Wolchok, in person, for Sidney S. Wolchok, appellant.

      Joseph A. Brust, Henry G. McDonough, Alfred J. Callahan and Jacob Markowitz for Robert F. Wagner, Jr., and others, respondents.
   Motion for leave to appeal granted. Order affirmed. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Amelia Schimmel, Appellant, against Bert Stand, Respondent, et al.
    Argued September 9, 1953;
    decided September 9, 1953.

      Benjamin Gassman for appellant.

      Edwin B. Wolchoh for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Plaintiff, v. Mercer Hicks Corporation et al., Defendants. George C. Kimber et al., as Trustees under the Will of Anne A. Kimber, Deceased, Interveners, Appellants; Daniel J. Riesner, as Receiver of Mercer Hicks Corporation, Respondent.
    Submitted October 5, 1953;
    decided October 6, 1953.

      Menahem Stim, Joseph D. Stim and Nathaniel L. Goldstein, Attorney-General (Abe Wagman of counsel), for motions.

      Zola A. Aronson, John J. Meehan and Howard Weinberger opposed.
   Motions granted and appeal dismissed upon the ground that the appeal does not lie under subdivision 4 of section 588 of the Civil Practice Act.


text:
    John Bryant, Appellant, v. Presbyterian Hospital in the City of New York, Respondent.
    Submitted July 13, 1953;
    decided October 8, 1953.
   Motion to amend remittitur denied, with $10 costs. (See Riley v. Pierce Oil Corp., 245 N. Y. 152, 154; Hansen v. City of New York, 299 N. Y. 136, 138.) [See 304 N. Y. 538.]


text:
    George Lammie, Appellant, v. Herman M. Lehrer, Respondent.
    Submitted October 5, 1953;
    decided October 15, 1953.

      Alfred 8. Julien for motion.

      Thomas A. Clarke and John G. Reilly opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the required papers were not filed in the office of the Clerk of the Court of Appeals within thirty days after service of a copy of the order of the Appellate Division denying permission to appeal, with notice of entry thereof. (See Civ. Prac. Act, § 592, subd. 3, as it provided prior to Sept. 1, 1953, the effective date of L. 1953, ch. 94: see, also, Nathan v. Stratford Holding Corp., 295 N. Y. 936; Gerla v. Bankers Trust Co., 297 N. Y. 888.)


text:
    Charlotte Lezynski, Individually and as Administratrix of the Estate of Peter Lezynski, Deceased, Appellant, v. Joseph Kasprzyk et al., Defendants, and Joseph Pantera et al., Respondents.
    Submitted October 5, 1953;
    decided October 15, 1953.

      William L. Rieth for motion.

      Maurice Abloff opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant serves and files the undertaking required by section 593 of the Civil Practice Act and pays $10 costs within ten days after service of a copy of the order, in which events the motion is denied. (See Campbell v. Brown, 294 N. Y. 702; Cohen and Karger, Powers of the New York Court of Appeals, § 104, n. 74.)


text:
    In the Matter of the Probate of the Will of Herman L. Bitterman, Deceased. Jacob L. Bitterman et al., Appellants; Robert Garlock et al., Respondents.
    Submitted October 5, 1953;
    decided October 15, 1953.

      Raphael H. Weissman for motion.

      Henry Epstein, Robert Garloch, in person, Sherwin Kamin, and Nathaniel L. Goldstein, Attorney-General (Kenneth B. Shearer, Wendell P. Brown and P. Hodges Combier of counsel), opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution.


text:
    In the Matter of the General Assignment for the Benefit of Creditors of Dorland, Inc., Assignor, to Thomas E. Zoda et al., Assignees, Respondents. Ernest Davids, Appellant.
    Submitted October 5, 1953;
    decided October 15, 1953.

      John R. Bartels for motion.

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


text:
    Adelaide N. Reed, Respondent, v. Robert M. Reed, Appellant.
    Submitted October 5, 1953;
    decided October 15, 1953.

      Joseph W. Martin for motion.

      William A. Centner opposed.
   Motion dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Herbert Tomoser, Appellant and Respondent, v. Daniel Kamphausen et al., Respondents and Appellants, et al., Defendants.
    Submitted October 5, 1953;
    decided October 15, 1953.

      Lewis N. Blatt for motion.

      William P. Stewart opposed.
   Motion denied.


text:
    In the Matter of the Appointment of a Committee of the Person and Property of M. Edward Herman, an Alleged Incompetent. M. Edward Herman et al., Appellants; Helen Herman, as Committee of the Person and Property of M. Edward Herman, an Alleged Incompetent, et al., Respondents.
    Argued June 5, 1953;
    decided October 16, 1953.

      David Schenker for Alexander W. Herman and another, appellants, and Bernard H. Sandler for M. Edward Herman, appellant.

      Charles T. Murphy for Helen Herman, respondent.
    No appearance for Robert E. Dempsey, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. [See 306 N. Y. 674.]


text:
    Mae Diamond, as a Director and Stockholder of Jarold Shops, Inc., Suing on Behalf of Herself and the Right of Said Corporation, Appellant, v. Evelyn Diamond et al., Respondents. Irving Gerber, Appellant, v. Jarold Shops, Inc., Respondent.
    Submitted October 5 and 13, 1953;
    decided October 16, 1953.

      Jay Leo Rothschild for motions.

      Jacob W. Friedman opposed.
   Motions denied.


text:
    Murray Landy, Respondent, v. Isabelle J. Landy, Appellant.
    Submitted October 5, 1953;
    decided October 16, 1953.

      Milton Koss for motion.

      Irving I. Erdheim opposed.
   Motion granted and appeal dismissed (see Friedman v. Friedman, 240 N. Y. 608).


text:
    Long Island University, Appellant and Respondent, v. Harry Tappan et al., Constituting the Town Board of the Town of Oyster Bay, Respondents, and Thomas H. Choate et al., Constituting the Village Board of Trustees of the Village of Brookville, et al., Respondents and Appellants.
    Submitted October 5, 1953;
    decided October 16, 1953.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 305 N. Y. 893.]


text:
    City of New Rochelle, Respondent, v. Morgan H. Seacord, Appellant.
    Submitted October 13, 1953;
    decided October 16, 1953.

      Murray G. Fuerst, Corporation Counsel (Francis S. Claps of counsel), for motion.

      Morgan E. Seacord, in person, opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no substantial constitutional question is presented.


text:
    In the Matter of Lehigh Valley Railroad Company, Appellant and Respondent, against Lazarus Joseph, as Comptroller of the City of New York, Respondent and Appellant.
    Submitted October 5, 1953;
    decided October 16, 1953.
   Motion to amend remittitur denied, with $10 costs. [See 305 N. Y. 853.]


text:
    St. Nicholas Cathedral of the Russian Orthodox Church in North America, Appellant, v. John Kedroff and Benjamin Fedchenkoff, as Archbishop of the Archdiocese of North America and the Aleutian Islands of the Russian Orthodox Greek Catholic Church, Respondents.
    Submitted October 5, 1953;
    decided October 16, 1953.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 306 N. Y. 38.]


text:
    Walter N. Smith et al., Appellants, v. William O’Dwyer et al., Constituting the Board of Estimate of the City of New York, et al., Respondents.
    Submitted October 5, 1953;
    decided October 16, 1953.

      Denis M. Hurley, Corporation Counsel (Barbara H. Carroll of counsel), for motion.

      Walter N. Smith, in person, opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    James Talcott, Inc., Respondent, v. Jesse J. Ozdoba et al., Appellants.
    Submitted October 5, 1953;
    decided October 16, 1953.

      Melvin Liebowits for motion.

      Chester A. Lessler opposed.
   Motion denied.


text:
    Lew Wallace, Appellant, v. Oswald D. Heck, Individually and as Assemblyman and Speaker of the State Assembly of New York, et al., Respondents.
    Submitted October 5, 1953;
    decided October 16, 1953.

      Nathaniel L. Goldstein, Attorney-General (Philip Watson of counsel), for motion.

      Lew Wallace, in person, opposed.
   Motion granted and appeal dismissed upon the ground that the order sought to be appealed from does not finally determine the action within the meaning of the Constitution, and upon the further ground that the questions involved on this appeal are other than questions as to the constitutional validity of a statute. (See Civ. Prac. Act, § 588, subd. 4.)


text:
    In the Matter of the Claim of Blanche M. Collins, Respondent, against Archer Motor Co., Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted October 5, 1953;
    decided October 16, 1953.

      jHenry Redmond Dutcher, Sr., for motion.
    No one opposed.
   Motion by claimant to direct the Clerk of the Court of Appeals to tax costs denied as unnecessary. The claimant is entitled to apply in the Appellate Division for a share of the costs under the previous decision of this court (305 N. Y. 646).


text:
    In the Matter of the Application of Robert Dranow, Appellant, for Admission to Practice as an Attorney.
    Submitted October 5, 1953;
    decided October 16, 1953.

      Robert Dranow, in person, for motion for leave to appeal.
    No one opposed.
   Motion for leave to appeal dismissed.

Appeal taken as of right dismissed.


text:
    Leo H. Bohling, Appellant, v. Edward Corsi, as Industrial Commissioner, et al., Respondents.
    Submitted October 5, 1953;
    decided October 16, 1953.

      Merwin K. Hart, Jr., for motion.
    No one opposed.
   Motion for a certificate that a constitutional question is involved on the appeal herein granted. The time within which to serve all papers upon this appeal is extended to twenty days from the date of the order.


text:
    Wayne Wirth, Appellant, v. Clendenin Ryan, Respondent.
    Argued October 5, 1953;
    decided October 22, 1953.

      Montague Casper and Charles J. Nehrbas for appellant.

      Edmund L. Palmieri for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis. Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Edward J. McCann, Appellant, against James M. Power et al., as Commissioners of Election and Constituting the Board of Elections of the City of New York, et al., Respondents.
    Argued October 21, 1953;
    decided October 22, 1953.

      James F. Ryan for appellant.

      Reginald 8. Hardy, Sidney Squire and Joseph Fischer for S. Reymart Alter, respondent.
   Order of the Appellate Division reversed upon the • ground that on this record the discretion of the courts below under section 330 of the Election Law should have been exercised in petitioner’s favor. Order entered granting petitioner a recount and recanvass of the ballots cast in the primary election held in the First Municipal Court District in the Borough of Brooklyn on September 15, 1953, for the nomination of a Democratic candidate for the office of Justice of the Municipal Court of the City of New York, such recount and recanvass to commence at the office of the board of elections not later than noon on October 23, 1953. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Celia Z. Glotzer, Respondent, v. Benjamin D. Glotzer, Appellant.
    Argued October 5, 1953;
    decided October 22, 1953.

      Irving J. Tell and Aaron Fleissig for appellant.

      Menahem Stim for respondent.
   Appeal dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Anna S. Campbell, Respondent, v. Edward B. Campbell, Appellant.
    Argued October 6, 1953;
    decided October 22, 1953.

      James B. Gitlits for appellant.

      Harry 8. Travis for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Parisi Brothers, Inc., Appellant, v. Ernest Nardone et al., Doing Business under the Name of Marie Bakeries et al., Respondents.
    Argued October 8, 1953;
    decided October 22, 1953.

      Garry J. Fury and Alfred A. Parisi for appellant.

      William H. Pearse for respondents. .
   Judgment affirmed, Avith costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobeis, JJ,


text:
    Maurice Silken, Appellant, v. Mary T. Farrell, Respondent.
    Argued October 5, 1953;
    decided October 22, 1953.

      Samuel Polinshy for appellant.

      Anson W. Van Ness for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Vooehis, JJ.


text:
    Daniel Falina, Appellant, v. Hollis Diner, Inc., Respondent.
    Submitted October 8, 1953;
    decided October 22, 1953.

      Frank A. Bellucci for appellant.

      Ralph Stout and Theodore T. Weiser for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Nilo Betram Rivera, Appellant. The People of the State of New York, Respondent, v. Nicholas Leonardo Richichi, Appellant. The People of the State of New York, Respondent, v. Solomon Meyers, Appellant. The People of the State of New York, Respondent, v. Harry J. Adamos, Appellant.
    Argued October 5, 1953;
    decided October 22, 1953.

      William F. Horan for appellants.

      Samuel Faile, District Attorney {George D. Burchell of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Lewis, Ch. J., Cok way, Desmokd, Dye, Fuld, Froessel and Vak Voorhis, JJ.


text:
    Thomas Ferguson, an Infant, by Charles Ferguson, His Guardian ad Litem, Appellant, v. Helen Payne, Defendant, and Ernest Megerell, as Trustee of Lee School District No. 4, Respondent.
    Argued October 7, 1953;
    decided October 22, 1953.

      Harold H. Hymes for appellant.

      Thomas S. Kernan for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Arnold H. Marks et al., Appellants, against Regents of the University of the State of New York et al., Respondents.
    Argued October 6, 1953;
    decided October 22, 1953.

      Grover M. Moscowits for appellants.

      Charles A. Brind, Jr., for respondents.

      Harold Kohn for New York State Optometric Association, amicus curia, in support of respondents’ position.
   Order affirmed, without costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Vooehis, JJ.


text:
    Gus Bottalico, Appellant, v. City of New York, Respondent.
    Argued October 7, 1953;
    decided October 22, 1953.

      Jacob D. Fuchsberg, Irving A. Thau and Samuel S. Sturim for appellant.

      Denis M. Hurley, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for respondent.
   Application by appellant to withdraw appeal granted upon payment of costs. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Vooehis, JJ.


text:
    Julius E. Foster, Appellant, v. Louis W. Parker et al., Respondents. (Action No. 1.) Julius E. Foster, Plaintiff, v. Louis W. Parker, Defendant. (Action No. 2.)
    Submitted October 5,1953;
    decided October 22, 1953.

      Philip Eandelman for appellant.

      John P. X. Finn for respondents.
   Appeal dismissed upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    In the Matter of Dairymen’s League Co-operative Association, Inc., Appellant, against C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, et al., Respondents.
    Submitted October 5, 1953;
    decided October 22, 1953.

      jRobert G. Blabey and George G. Fiesinger for motion.

      Maurice A. Gellis opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    In the Matter of the Arbitration between L. N. Jackson & Co., Inc., Respondent, and Compania Gasoliba Soc. Anon., Appellant.
    Submitted October 5, 1953;
    decided October 22, 1953.

      Copal Mints for motion.

      M. Mac Schwebel for appellant.
   Motion withdrawn.


text:
    In the Matter of the Claim of Fred C. Klag, Appellant, against Drug & Chemical Club, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Submitted October 5, 1953;
    decided October 22, 1953.
   Motions for reargument denied, with $10 costs and necessary-printing disbursements. [See 305 N. Y. 900.]


text:
    In the Matter of Inez Yancey, Respondent. New Chapel Baptist Church, Appellant.
    Submitted October 5, 1953;
    decided October 22, 1953.

      Stephen Holden for motion.

      Melvel W. Snitow opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant serves and files the undertaking on appeal and pays $10 costs within ten days after the service on appellant of a copy of the order hereon with notice of entry, in which events motion denied.


text:
    Milton Psaty et al., Copartners Doing Business as Greater, New York Waterproofing Company, Appellants, v. Perry B. Duryea, as Commissioner of Conservation of the State of New York, et al., Respondents.
    Submitted October 5, 1953;
    decided October 22, 1953.

      Nathaniel L. Goldstein, Attorney-General (John F. Hmiel of counsel), for motion.
    No one opposed.
   Motion withdrawn.


text:
    Valerie Rubinstein, as Executrix of Andre Rubinstein, Deceased, Appellant, v. Serge Rubinstein et al., Respondents, et al., Defendants.
    Submitted October 13, 1953;
    decided October 22, 1953.
   Motion to amend remittitur denied, with $10 costs. [See 305 N. Y. 746.]


text:
    In the Matter of Michael J. Barry, Appellant, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Submitted October 13, 1953;
    decided October 22, 1953.

      Salvatore T. Gambino for motion.

      Alvin McKinley Sylvester, Robert W. Corcoran and Emanuel D. Black opposed.
   Motion for an order of substitution denied upon the ground that the proceeding did not survive the death of the applicant, Michael J. Barry, and appeal dismissed.


text:
    Rebecca Swidler et al., Appellants, v. Knocklong Corp. et al., Respondents.
    Submitted October 5, 1953;
    decided October 22, 1953.
   Motion for reargument and stay denied, with $10 costs and necessary printing disbursements. Motion to amend remittitur granted. Return of remittitur requested and, when returned, it will be amended by the addition of the following: A question under the Federal Constitution was presented and necessarily passed upon by the Court of Appeals, viz.: Whether the judgment herein, by permitting, as claimed by plaintiffs, the prior partition action judgment to validate the tax deed which had been obtained without notice to the owners, although the order for service by publication of the summons in the partition action dispensed with mailing the summons, constituted the taking of property without due process of law, in violation of the Fourteenth Amendment to the Constitution. The Court of Appeals held that there was no such violation. [See 305 N. Y. 527.]


text:
    In the Matter of Manuel R. Fernandez, Respondent, against State Liquor Authority, Appellant.
    Argued October 5, 1953;
    decided October 23, 1953.

      Alvin McKinley Sylvester, Counsel (Robert W. Corcoran and Emanuel D. Blank of counsel), for appellant.

      David Kashman and Albert A. Perlmutter for respondent.
   Order of the Appellate Division, insofar as it annuls the determination of the State Liquor Authority that the licensee has ceased to conduct a bona fide restaurant, reversed, without costs, and determination of the State Liquor Authority confirmed .on the ground that the findings of the State Liquor Authority are supported by substantial evidence. Appeal, insofar as it attempts to review the order of the Appellate Division annulling the determination of the State Liquor Authority which denied petitioner’s application for the renewal license and remitting same to the State Liquor Authority for reconsideration, dismissed.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Voorhis, JJ. Froessel, J., dissents only insofar as the determination of the Authority cancelled petitioner’s existing liquor license for the reasons set forth in the memorandum at the Appellate Division.


text:
    Jean N. Penfield, Individually and on Behalf of All the Tenants of 211 East 35th Street, Borough of Manhattan, Similarly Situated, Appellant, v. Murray Hill Holding Corp., Respondent.
    Argued October 13, 1953;
    decided October 23, 1953.

      Jean Nelson Pen field, appellant in person.

      Leo Praeger for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, J. Taking no part: Van Voorhis, J.


text:
    The People of the State of New York, Respondent, v. Nicholas Castlegrande, Appellant.
    Argued October 13, 1953;
    decided October 23, 1953.

      Samuel Bernstein, Maurice G. Fleischman and Alfred I. Dittler for appellant.

      George B. De Luca, District Attorney (John B. Lee and Herman J. Fliederblum of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye and Frobssel, JJ. Fuld and Van Voorhis, JJ., dissent and vote to reverse and to dismiss the information upon the ground that the evidence fails to establish defendant’s guilt beyond a reasonable doubt as matter of law. (People v. Garpenito, 292 N. Y. 498; People v. Soshtain, 288 N. Y. 658; People v. Richardson, 287 N. Y. 563; People v. Marra, 289 N. Y. 703.)


text:
    Louis Angelina, Appellant, v. Euclid Concrete Corp. et al., Respondents.
    Argued October 14, 1953;
    decided October 23, 1953.

      Harris Birnbaum and Joseph Trachtenberg for appellant.

      Maurice Finkelstein for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    Parka Corporation, Respondent, v. Michael F. Drinkhouse, Appellant.
    Submitted October 5, 1953;
    decided October 23, 1953.

      Sidney M. Wittner for motion.

      Richard H. Tunstead opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    C. Clarence Kaskel, Appellant, v. Vincent R. Impellitteri et al., Constituting the Board of Estimate of the City of New York, et al., Respondents, and Triborough Bridge and Tunnel Authority, Intervener, Respondent.
    Submitted November 16, 1953;
    decided November 17, 1953.


text:
    Lilly P. Armstrong, as Administratrix of the Estate of Paul E. Armstrong, Deceased, Appellant, v. Richard F. Bacher et al., Respondents, and County of Erie, Defendant.
    Argued October 6, 1953;
    decided November 19, 1953.

      Edward H. Kavinoky for appellant.

      William M. Fay for Richard F. Bacher and another, respondents.

      James 8. Pierce, County Attorney (Boy P. Ohlin and Frank G. Godson of counsel), for County of Cattaraugus, respondent.
   As to the defendant County of Cattaraugus judgments of the Appellate Division and of the Trial Term reversed and a new trial granted, with costs to abide the event, upon the ground that the proof relating to the presence of gravel and cinders upon the highway presented an issue of fact as to whether the defendant County of Cattaraugus had been guilty of negligence causative of the accident. No opinion.

As to the defendants Bacher and Seider appeal dismissed, with costs, upon the ground that no stipulation for judgment absolute has been given.

Concur: Lewis, Ch. J., Conway, Desmond, Dye and Frobssel, JJ. Fuld and Van Voorhis, JJ., dissent and vote to affirm as to the County of Cattaraugus on the opinion of the Appellate Division.


text:
    Sagobel Development Corp., Appellant, v. Joseph G. Cohen, Respondent, et al., Defendants.
    Argued October 8, 1953;
    decided November 19, 1953.

      Abraham Kaplan for appellant.

      Henry A. Friedman and William Macy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Van Voorhis, J., dissents and votes to reverse the judgment entered upon the order of the Appellate Division, and to reinstate the order of Special Term denying respondent’s motion to dismiss the complaint.


text:
    Gesufato Cuda, Respondent, v. Mary De Stefanis, Appellant.
    Argued October 6, 1953;
    decided November 19, 1953.

      Anthony J. Fernicola for appellant.

      Lawrence J. Goldhas and William R. Goldbas for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    The People of the State of New York, Respondent, v. Frank J. Flora, Appellant.
    Submitted October 8, 1953;
    decided November 19, 1953.

      John P. Lomenso and Erwin N. Witt for appellant.

      Clarence J. Henry, District Attorney (Nicholas P. Varían of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Froessbl and Van Voorhis, JJ.


text:
    Howland H. Pell, Jr., as Executor of Mary W. Buel, Deceased, Appellant, v. J. Watson Webb, Respondent.
    Argued October 15, 1953;
    decided November 20, 1953.

      Harold R. Medina, Jr., and Allen F. Maulsby for appellant.

      Richard H. McCann, Ambrose L. Cram and William L. Malheson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Fboessbl, JJ. Taking no part: Van Vooehis, J.


text:
    The People of the State of New York, Respondent, v. Raymond O’Keefe, Antonio Romeo, Louis Dimbro, Joseph Banovic, Alias “ Bingo Joe ”, Keiser Joseph, Alias “ Mushy Keiser ”, Demetrius Saraceno, Sidney Goodsite, Alias, “Shimmy”, Martin Mondolfi, Louis Fiato, and Joseph Capalaces, Appellants, et al., Defendants.
    Argued October 9, 1953;
    decided November 20, 1953.

      John Lo Pinto, Paul R. Shanahan, Harry S. Travis, John J. Cucci, Theodore H. Cohn and John J. McKinney for appellants.

      Robert E. Fischer, District Attorney (Louis M. Greenblott of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ. [See 306 N. Y. 744.]


text:
    In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property from 2nd Avenue to West 155th Street, and Adjoining Property, Borough of Manhattan, Required for Harlem River Drive. Bradley Mahony Coal Corp. et al., Respondents. In the Matter of the City of New York, Appellant, Relative to Acquiring Title to Real Property along Harlem River between 2nd Avenue and East 140th Street, Borough of Manhattan, Required for Improvement of Waterfront and Harbor. Bradley Mahony Coal Corp., Respondent.
    Argued October 14, 1953;
    decided November 20, 1953.

      Denis M. Hurley, Corporation Counsel (Samuel K. Handel, Harry E. O’Donnell and Reuben Levy of counsel), for appellant.

      Charles Lamb, William A. Lamb, Loretta A. Conway and Matthew J. Tachella for Bradley Mahony Coal Corp., respondent.

      Orrin G. Judd, Saul A. Shames and Theodore Miller for Julianson’s Realty Co., Inc., respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Ftted, Fboessel and Van Voobhis, JJ.


text:
    Dentists’ Supply Company of New York, Respondent, v. E. G. Cornelius et al., Copartners Doing Business as Cornelius Products Company and as General Wax Refining Company, Appellants.
    Argued October 13, 1953;
    decided November 20, 1953.

      Herman 8. Axelrod and Maitland M. Axelrod for appellants.

      Alfred J. Morgan, G. Arthur Blanchet and Douglas M. More for respondent.
   Order affirmed, with costs. First, third and fourth questions certified answered in the negative. Second question certified answered in the affirmative. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    May S. Rosen, Appellant, v. New York City Teachers’ Retirement Board et al., Respondents.
    Argued October 13, 1953;
    decided November 20, 1953.

      Benjamin M. Zelman for appellant.

      Denis M. Hurley, Corporation Counsel {Helen R. Cassidy, Seymour B. Quel, Edward J. McLaughlin and Blossom Graubard of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conwat, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Maurice O’Dell and Walter Griffen, Appellants, et al., Defendants.
    Argued October 14, 1953;
    decided November 20, 1953.

      W. Bartlett Sumner and Robert W. Martin for Maurice O’Dell, appellant.

      J ohm S. McGovern and James V. Campana for Walter Griffen, appellant.

      John F. Dwyer, District Attorney (Leonard Finkelstein of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    Daphne Elliott, Appellant, v. Prockter Productions, Inc., Respondent.
    Submitted October 19, 1953;
    decided November 20, 1953.

      Eugene L. Bondy for motion.

      Robert Z. Lewis opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Erie County Board of Health et al., Respondents, v. Albert M. Kuppel et al., Appellants.
    Submitted November 16, 1953;
    decided November 20, 1953.

      Samuel A. Magistrale for motion.

      George M. Nelson opposed.
   Motion dismissed, with $10 costs, upon the ground that the papers were not served within the time fixed by subdivision 3 of section 592 of the Civil Practice Act.


text:
    Abraham S. Ginnes, Appellant, v. Prockter Productions, Inc., Respondent.
    Submitted October 19, 1953;
    decided November 20, 1953.

      Eugene L. Bondy for motion.

      Robert Z. Lewis opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Jacob Gross, Respondent, v. Bernard I. Rosenhaus et al., Doing Business as B. I. Rosenhaus & Son, Defendants and Third-Party Plaintiffs-Appellants. Richard F. Bemporad et al., a Copartnership Doing Business as Bemporad Company, Third-Party Defendants-Respondents.
    Submitted November 16, 1953;
    decided November 20, 1953.

      Lawrence J. Goldstein for motion.

      Nathan B. Shapiro and Seymour Steinberg opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements. (See N. Y. Const., art. VI, § 7, subd. [7].)


text:
    In the Matter of Benjamin Levitas, an Attorney, Appellant. Association of the Bar of the City of New York, Respondent.
    Submitted October 19, 1953;
    decided November 20, 1953.

      George G. Hunter, Jr., for motion to dismiss appeal and in opposition to motion for leave to appeal.

      Benjamin Levitas, in person, for motion for leave to appeal and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal granted and appeal dismissed.

Motion for leave to appeal denied.


text:
    Lilyan McPherson, Appellant, v. Grant Advertising, Inc., et al., Respondents.
    Submitted November 16, 1953;
    decided November 20, 1953.

      J. Stanley Cohen for motion.

      Leo M. Brimmer opposed.
   Motion for leave to prosecute appeal as a poor person and for assignment of counsel granted.


text:
    The People of the State of New York, Respondent, v. Joseph Feolo, Albert Mastrone and Norman J. Brabson, Appellants.
    Submitted November 16, 1953;
    decided November 20, 1953.
   Motion for reargument by appellant Norman J. Brabson denied. All concur, except Fuld, J., taking no part. [See 284 N. Y. 381.]


text:
    The People of the State of New York, Respondent, v. Henry Coger, Appellant.
    Submitted October 13, 1953;
    decided November 20, 1953.
   Motion for reargument or, in the alternative, to amend the remittitur denied. [See 305 N. Y. 906.]


text:
    David Pressman, Appellant, v. Prockter Productions, Inc., Respondent.
    Submitted October 19, 1953;
    decided November 20, 1953.

      Eugene L. Bondy for motion.

      Robert Z. Lewis opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion.


text:
    Martha M. Walsh, Appellant, v. John L. Keogh et al., Respondents.
    Submitted October 19, 1953;
    decided November 20, 1953.

      Mark N. Turner for motion.

      John L. Barrett for appellant.
   Motion denied, with $10 costs.


text:
    Cameron Estates, Inc., Respondent, v. George T. Deering et al., Defendants, and Mary Stegmaier et al., Appellants.
    Submitted November 16, 1953;
    decided November 20, 1953.

      Clarence F. Corner and Frederick Weisbrod for motion.

      Joseph T. Losee opposed.
   Motion denied, with $10 costs.


text:
    Beckie Rapoport et al., Appellants, v. City of New York, Respondent.
    Argued October 19, 1953;
    decided November 25, 1953.

      Bernard Meyerson, Irving Coopersmith and Louis Dubow for appellants.

      Denis M. Hurley, Corporation Counsel (Alfred Weinstein, Seymour B. Quel and Fred Iscol of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fold and Fboessel, JJ. Talcing no part: Van Voobhis, J.


text:
    National Home Products Co., Inc., Appellant, v. Union Carbide and Carbon Corporation, Respondent.
    Argued October 16, 1953;
    decided November 25, 1953.

      Robert O. Kleefeld and Richard Fetter for appellant.

      James A. Fowler, Jr., and Asa D. Solcolow for respondent-
   judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    The People of the State of New York ex rel. Louis Venosa, Appellant, against Robert E. Murphy, as Warden of Auburn State Prison, Respondent.
    Argued October 20, 1953;
    decided November 25, 1953.

      Joseph F. Crecca for appellant.

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

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld. Froessbl and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Woodrow W. York, Appellant.
    Argued October 19, 1953;
    decided November 25, 1953.

      Wayne M. Harris for appellant.

      Clarence J. Henry, District Attorney (Joseph Q. Fritsch of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Oh. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Vincent Ianniciello, Appellant.
    Argued October 19, 1953;
    decided November 25, 1953.

      Frank Serri for appellant.

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Vooehis, JJ.


text:
    The People of the State of New York ex rel. Thomas J. Cunningham, Appellant, against John F. McNeill, as Superintendent of Matteawan State Hospital, Respondent.
    Argued October 20, 1953;
    decided November 25, 1953.

      Glare J. Hoyt for appellant.

      Nathaniel L. Goldstein, Attorney-General (J. Bruce MacDonald, Wendell P. Broivn and Herman N. Harcourt of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld. Froessel and Van Voorhis, JJ.


author: Desmond, J.

text:
    Edward P. Hurley, Appellant, v. Alfred R. Hurley et al., Respondents, et al., Defendants.
    Argued May 28,1953; reargued November 30, 1953;
    decided December 1, 1953.

      Sidney S. Levine for appellant.

      John L. Seymour for respondents,
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Dye, Fuld and Adel, JJ. Desmond, J., dissents in the following opinion in which Conwat and Fkoessel, JJ., concur.

Desmond, J.

(dissenting). Judgment dismissing the complaint has been granted here, solely on the ground that the action was not brought in time. The ten-year period of limitations (Civ. Prac. Act, § 53) applies, but when did that period start to run against plaintiff?

The transaction as alleged, between plaintiff’s father and plaintiff’s brother, defendant Alfred R. Hurley, amounted to, or brought about, a resulting trust or trust by implication, not a constructive one or a trust ex maleficio (Foreman v. Foreman, 251 N. Y. 237; McCahill v. McCahill, 11 Misc. 258; Bogert on Trusts and Trustees, Vol. 2A, §§ 454, 458). The time limitation against suit by the beneficiaries thereof (the father and, later, his distributees such as plaintiff) began to run at the time, only, of express repudiation of the trust by the trustee (Bogert on Trusts and Trustees, Vol. 4, part 2, § 952; 3 Scott on Trusts, § 409; see Lammer v. Stoddard, 103 N. Y. 672, 673; Gilmore v. Ham, 142 N. Y. 1, 10; Yeoman v. Townshend, 74 Hun 625, 627).

It seems clear, if the allegations of this complaint be taken as true, that, on the father’s death, defendant Alfred R. Hurley had some sort of enforcible duty to convey the premises to the heirs of his grantor, within a reasonable time, or at least, to continue to hold the premises for their benefit. Just when he repudiated that obligation does not appear and so we cannot hold, oh the face of this complaint, that the statute had run when this action was commenced.

The judgment should be reversed, and the motion denied, with costs, with leave to defendants to plead the Statute of Limitations (under Rules Civ. Prac., rules 107, 108) or loches, as a defense, to be applied or not as the facts may be developed on the trial.

       Designated pursuant to section 5 of article VI of the State Constitution in place of Van Vooehis, J., disqualified.


text:
    The People of the State of New York, Appellant, v. Earl F. Barsh, Respondent.
    Argued October 21, 1953;
    decided December 3, 1953.

      T. Vincent Quinn, District Attorney (Benjamin J. Jacobson of counsel), for appellant.

      Daniel Jacobson, Bernard Jacobson and Murray A. Gordon for respondent.
   Appeal dismissed in view of the fact that the defendant died on November 8,1953. No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Yoorhis, JJ.


text:
    Frank Mirabella, Appellant, v. Alvin F. Thiem, Doing Business under the Name of Pine Tree Riding Stables, Respondent.
    Argued October 22, 1953;
    decided December 3, 1953.

      Joseph W. Alaimo and Philip B. Dattilo for appellant.

      Eric P. Smith for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence presented questions of fact for the jury. No opinion.

Concur: Lewis, Ch. J., Conway, Dye and Froessel, JJ. Desmond and Fuld, JJ., dissent on the memorandum of the Appellate Division. Taking no part: Van Voorhis, J.


text:
    In the Matter of 29 Cortlandt Street Corp., Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [29 Cortlandt St., Borough of Manhattan.]
    Argued October 21, 1953;
    decided December 3, 1953.

      Leffert Hols and Herman Schrier for appellant.

      Denis M. Hurley, Corporation Counsel (Edith I. Spivack and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Coeway, Desmoed, Dye, Ftjld and Fboessel, JJ. Taking no part: Vae Voobhis, J.


text:
    In the Matter of 649 Madison Avenue Corporation, Appellant, against William E. Boyland et al., Constituting the Tax Commission of the City of New York, Respondents. [649-651 Madison Ave., Borough of Manhattan.]
    Argued October 21, 1953;
    decided December 3, 1953.

      Eugene J. Schwartz for appellant.

      Denis M. Hurley, Corporation Counsel (Edith I. Spivach and Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voobhis, JJ.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Frederick Alexander, Appellant.
    Argued October 22, 1953;
    decided December 3, 1953.

      Harris B. Steinberg for appellant.

      Frank S. Hogan, District Attorney (Harold Boland Shapiro and Charles W. Manning of counsel), for respondent.
   Per Curiam.

The judgments should be reversed and the information dismissed on the ground that the evidence adduced by the People was not sufficient to establish a violation of section 34 of the Rules and Regulations of the Department of Parks of the City of New York. Section 48 of those rules — not charged in the information — is the provision which covers stopping or parking “ in a vehicle ” in a park after dark, but that section may not be relied upon to support the conviction, since there was no allegation or showing, as required by section 48, that defendant had stopped or parked at a place other than one “ designated or maintained ” therefor.

Lewis, Oh. J., Desmond, Dye, Fuld and Van Voorhis, JJ., concur in Per Curiam opinion; Conway and Froessel, JJ., dissent and vote to affirm upon the ground that in our opinion the evidence clearly establishes a violation of section 34 of said rules and regulations.

Judgments reversed, etc.


text:
    The People of the State of New York, Respondent, v. Bruce W. Eastman, Appellant.
    Argued October 8, 1953;
    decided December 3, 1953.

      Michael Lo Pinto and John Lo Pinto for appellant.

      Frederick B. Bryant, District Attorney, for respondent.
   Per Curiam.

The order of the Appellate Division, as we read it, reversed the order of County Court insofar as it set aside the judgment of conviction and dismissed the information; it affirmed that order insofar as it remitted to the defendant the fine imposed upon him. The case is brought to this court upon appeal by the defendant. There was no cross appeal by the People.

While we have heretofore clearly indicated that the writ oí error coram nobis lies in courts not of record — such as a Court of Special Sessions — nevertheless, in the situation now before us where the defect is made clear by the record, that remedy is not available (Matter of Hogan v. New York Supreme Court, 295 N. Y. 92, 96-97; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131, 140).

Whether, in a case such as this, wherein the parties agree that the information was fatally defective and insufficient as a matter of law to support the conviction, some other remedy is open to defendant, we have no occasion at this time to consider.

The order of the Appellate Division should be affirmed.

Lewis, Ch. J., Conway, Desmond, Dye, Ftjld, Fboessel and Van Voobhis, JJ., concur.

Order affirmed.


text:
    The People of the State of New York, Appellant, v. John E. Pardee, Respondent.
    . Argued October 21, 1953;
    decided December 3, 1953.

      Samuel Faile, District Attorney (John J. O’Brien of counsel), for appellant.

      Domeniclc Bucci for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fttld, Fboessel and Van Voobhis, JJ.


text:
    The People of the State of New York, Respondent, v. James J. Moran, Appellant.
    Argued October 22, 1953;
    decided December 3, 1953.

      Joseph Leary Delaney and Lee Feltman for appellant.

      Frank S. Hogan, District Attorney (Richard G. Denser and Stuart G. Schwarts of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Taking no part: Van Voorhis, J.


text:
    In the Matter of John Leidman, on Behalf of Himself and All Other Employees Similarly Situated, Respondent, against Sidney H. Bingham et al., Constituting the Board of Transportation of the City of New York, et al., Appellants.
    Argued October 20, 1953;
    decided December 3, 1953.

      Denis M. Hurley, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellants.

      Charles Belous, Norman L. Adolf, Irving Lemov and Stanley E. Springer for respondent.
   Per Curiam.

It is undisputed that petitioner failed to sign “under protest” the payrolls as well as the checks issued thereon for the period in question. Accordingly, section 93c-2.0 of the Administrative Code of the City of New York prevents his recovery on any further claim for wages and salary during the period of his active military duty. Neither the State Soldiers ’ and Sailors ’ Civil Relief Act (Military Law, § 305) nor its Federal counterpart (U. S. Code, tit. 50, Appendix, § 522) relieved petitioner of the necessity of signing under protest as prescribed by section 93c-2.0 of the Administrative Code. (Pisciotta v. City of New York, 275 App. Div. 966, affd. 300 N. Y. 664, reargument denied and remittitur amended 300 N. Y. 755, certiorari denied 340 U. S. 825.)

The orders appealed from should be reversed and the petition dismissed, without costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fum and Fboessel, JJ., concur; Van Voobhis, J., taking no part.

Orders reversed, etc,


text:
    Harry Strong et al., Appellants, v. Charles Reeves, Respondent.
    Argued October 8, 1953;
    decided December 3, 1953.

      Gerald S. Hewitt for appellants.

      Theodore Fenstermacher and Glayton B. Lush for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    Gilbert Adrian, Respondent, v. Irving Unterman et al., Appellants, et al., Defendants.
    Submitted November 23, 1953;
    decided December 3, 1953.

      John B. Doyle for motion.

      Archibald Palmer opposed.
   Motion denied. Appellants directed to serve brief, if any, on or before December 28, 1953. Case set down for argument during second week of January, 1954, session of the Court of Appeals. (See County of Erie v. Continental Cas. Co., 295 N. Y. 690.)


text:
    John Boll, Respondent, v. Sharpe & Dohme, Inc., Appellant.
    Submitted November 30, 1953;
    decided December 3, 1953.

      Joseph J. Brophy for application.
    No one opposed.
   Application to dismiss appeal granted and appeal dismissed, with costs to respondent, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Stanley Cave et al., Appellants, v. Irving A. Green et al., Respondents.
    Submitted November 30, 1953;
    decided December 3, 1953.

      Irving Sverdlik for motion.

      Cora T. Walker opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellants serve and file the undertaking on appeal and pay $10 costs within ten days, in which events motion denied.


text:
    Kurt E. Fontheim, Suing for Himself and All Other Stockholders of Huron Holding Corporation Similarly Situated, Appellant, v. George R. Walker et al., Respondents, et al., Defendants.
    Submitted November 23, 1953;
    decided December 3, 1953.

      J. Adam Murphy for motion.

      Bernard Buchwald opposed.
   Motion denied, with $10 costs. (See Rules of Court of Appeals, rule 7.)


text:
    Nora Gribbin, Appellant, v. Leon S. Mygatt, Respondent, et al., Defendants.
    Submitted November 23, 1953;
    decided December 3, 1953.

      Charles I. Sterling for motion.

      Nora Gribbin, in person, for application and in opposition to motion.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant serves and files the undertaking on appeal and pays $10 costs within ten days, in which events motion denied.

Application for an extension of time for argument of the appeal granted to the extent that the case is set down for argument at the February, 1954, session of the Court of Appeals.


text:
    Hornblower & Weeks, Respondent, v. Eleanor B. Sherwood, Appellant; The Sheriff of the City of New York et al., Respondents, et al., Defendants.
    Submitted November 30, 1953;
    decided December 3, 1953.

      Sidney G. Kingsley and Charles L. Sylvester for motion.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman of counsel), for People of the State of New York, respondent.
   Motion for stay granted.


text:
    In the Matter of Francisco Cota, Appellant, against New York State Liquor Authority, Respondent.
    Submitted November 17, 1953;
    decided December 3, 1953.

      William I. Cohen and Jack Reinstein for motions.

      Alvin McKinley Sylvester, Counsel (Emanuel D. Black and Robert W. Corcoran of counsel), opposed.
   Motion for leave to appeal granted.

Motion for stay granted.


text:
    In the Matter of the Appointment of a Committee of the Person and Property of M. Edward Herman, an Alleged Incompetent. M. Edward Herman et al., Appellants; Helen Herman, as Committee of the Person and Property of M. Edward Herman, an Alleged Incompetent, et al., Respondents.
    Submitted November 30, 1953;
    decided December 3, 1953.
   Motion to amend remittitur denied, with $10 costs. [See 306 N. Y. 566.]


text:
    New York State Electric & Gas Corporation, Respondent, v. City of Plattsburgh et al., Appellants.
    Submitted November 16, 1953;
    decided December 3, 1953.

      Allen M. Light for motion.

      Edmund B. Naylon and George Foster, Jr., opposed..
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the grounds that the order does not finally determine the action within the meaning of the Constitution and does not come within the provisions of subdivision 2 of section 589 of the Civil Practice Act.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted November 30, 1953;
    decided December 3, 1953.
   Motion for reargument and for other relief denied at this time, but without prejudice to renewal of this motion or of some other motion following determination by the Westchester County Court of the application made by defendants for a writ of coram nobis now pending in that court. [See 303 N. Y. 856; 306 N. Y. 678.]


text:
    Raymond W. Don, Plaintiff, and Elizabeth Don, Appellant, v. Benjamin M. Knapp, Inc., et al., Respondents, et al., Defendants.
    Argued October 20, 1953;
    decided January 8, 1954.

      Jules B. St. Germain for appellant.

      Bruce Bromley, Thomas P. Curtin and Maurice Rosenberg for Benjamin M. Knapp, Inc., respondent.

      Barry P. Rich for Bertram Hasinsky, respondent.

      Theodore Betsler, James B. Donovan and Clarke S. Ryan for Association of Casualty and Surety Companies and others, amici curiae, in support of respondents’ position.
   Judgments affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Gerard Wuttke, Respondent, against Cornelius O’Connor, as Manager of the Building Department of the Town of North Hempstead, Nassau County, Appellant.
    Argued October 14,1953;
    decided January 8, 1954.

      Bertram B. Daiker and James L. Dowsey, Jr., for appellant.

      Louis G. Hart, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Frobssel and Van Voorhis, JJ.


text:
    The People of the State of New York, Respondent, v. Calman Cooper, Harry A. Stein and Nathan Wissner, Appellants.
    Submitted January 6, 1954;
    decided January 12, 1954.
   Motion for reargument granted. Case set down for reargument during the last week of the present session. Execution of judgment stayed pursuant to section 528-a of the Code of Criminal Procedure. [See 303 N. Y. 856; 306 N. Y. 675.]


text:
    In the Matter of Wallace J. Stakel, as District Attorney of Genesee County, Appellant. Carrie Blueye, Respondent.
    Argued October 23, 1953;
    decided January 14, 1954.

      Wallace J. Stahel, District Attorney, in person (William H. Coon of counsel), for Wallace J. Stakel, appellant.

      William J. Darch and George W. Watson for respondent.
   Per Curiam.

The circumstances of this case compel an inference that a written permit was granted pursuant to the provision which is now section 9 of the Indian Law to Jemima Williams, the mother of respondent, at or about the time when she was married to respondent’s father on the Tonawanda Reservation in 1882, or during the many years while they lived there afterward as husband and wife. The determination of the Appellate Division that respondent is not an “ intruder ” on the Tonawanda Reservation, is interpreted as a finding of fact to the effect that her presence on the reservation is pursuant to such a permit, which is required by section 9. Such a finding is sustained by the evidence. No records were kept of the proceedings of the Council of Chiefs at that time, all persons who were then living are now dead, and a strong presumption of a lost grant of permission permanently to reside on the reservation arises from the lapse of time and the other facts in the case. Respondent herself has resided on the Tonawanda Reservation for at least fifty-eight years. The marriage laws of the State of New York are rendered applicable to Indians upon the reservation by section 3 of the Indian Law, and a permit granted to the mother of respondent would necessarily operate for respondent’s advantage since otherwise it would lie in the power of the Chiefs to remove from the reservation the children of the marriage, which cannot have been the intention of sections 3 or 8.

The order appealed from should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur.

Order affirmed.


text:
    In the Matter of Thomas E. Cotter, Jr., Respondent, against James S. Watson et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants.
    Argued November 16, 1953;
    decided January 14, 1954.

      Denis M. Hurley, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for appellants.

      Victor Konow, Leopold V. Rossi, Lester Q. Knopping and Jolm H. Scully for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Cowway, Desmowd, Dye, Fuld, Fboessel and Yaw Yoobhis, JJ.


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    In the Matter of Virginia Repper, on Behalf of Herself and All Other Residents and Property Owners in Harbor Island, Island Park, Nassau County, Similarly Situated, Appellant, against A. Holly Patterson et al., Constituting the Town Board of the Town of Hempstead, Respondents, and Oil Products, Inc., et al., Interveners, Respondents.
    Argued October 20, 1953;
    decided January 14, 1954.

      Jules B. St. Germain for appellant.

      George W. Foley, Ghauncey B. Garver and Robert L. Glare, Jr., for Boykin C. Wright, amicus curia, in support of appellant’s position.

      John A. Morhous, Acting Town Attorney, for A. Holly Patterson and others, respondents, and Louis 0. Bergh for Oil Products, Inc., intervener-respondent.

      Alexander Kronhart for Walter M. Allen and others, amici curia, in support of respondents’ position.
   Per Curiam.

This proceeding was brought pursuant to article 78 of the Civil Practice Act to review refusal by the town board of the Town of Hempstead to consent, pursuant to section 348 of the Village Law, to a petition for annexation of territory to the village of Island Park. We find in the record herein substantial evidence upon which the town board could find, as it did, that the petition lacked signatures of a majority of the persons residing within the territory proposed to be annexed to the village, who were qualified to vote for town officers when the petition was filed with the town clerk and acted upon by the town board. Accordingly, the order dismissing the petition should be affirmed.

We note, however, that it is no longer necessary that a petition for annexation of a territory contain signatures both of owners of a majority in value of the assessed property therein, and of a majority of the persons residing therein qualified to vote for town officers (L. 1927, ch. 650, § 44). We pass on no other question.

The order should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Order affirmed.


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    In the Matter of the Accounting of Joan Price, as Administratrix of the Estate of Howard Price, Deceased, Respondent. Harry Weill, Appellant. In the Matter of the Accounting of Joan Price, as Administratrix of the Estate of Howard Price, Deceased, Appellant. Max Weill, Respondent.
    Argued November 16, 1953,
    decided January 14, 1954.

      Harry Lesser, Samuel Lesser and Jules Ornstein for Harry Weill, appellant, and Max Weill, respondent.

      Jack H. Hantman for administratrix, respondent and appellant.
   Order affirmed, with costs payable by Harry Weill to Joan ■ Price, administratrix; no opinion.

Order affirmed, with costs to Max Weill, payable out of the estate; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


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    In the Matter of the Arbitration between George Rugen, as President of District Lodge No. 15, International Association of Machinists, A. F. of L., Respondent, and North American Philips Co., Inc., Appellant.
    Submitted November 25, 1953;
    decided January 14, 1954.

      T. Raymond Naughton for motion.

      Stephen G. Vladeck opposed.
   Motion for leave to appeal and for a stay granted.


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    Lera Realty Co., Inc., Appellant, v. Eckhardt-Berman Corporation, Respondent.
    Argued November 19, 1953;
    decided January 15, 1954.

      Harry Krauss for appellant.

      David Michelsóhn and Isidor E. Leinwand for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fund, Froessel and Van Voorhis, JJ.