author: Crouch, J.

text:
    P. Jackson Higgs, Appellant, v. George de Maziroff, Respondent.

      (Argued December 6, 1933;
    decided February 27, 1934.)

      Milton Gladstone and Charles E. McMahon for appellant.
    The written agreement pursuant to which the moneys were advanced and the notes delivered contains no such condition as defendant alleges and its construction presents only a question of law. (Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Elwood v. Goldman, 217 N. Y. 585; Dudley v. Perkins, 235 N. Y. 448; Hartigan v. Casualty Co., 227 N. Y. 175; Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Weinberg & Holman, Inc., v. Providence Washington Ins. Co., 254 N. Y. 387.) No oral agreement for the conditional delivery of the notes was pleaded or proved by defendant. (Banque Franco-Americaine v. Bergstrom, 171 App. Div. 870; 225 N. Y. 710; Thomas v. Scutt, 127 N. Y. 133; Stowell v. Greenwich Ins. Co., 163 N. Y. 298; Dady v. O’Rourke, 172 N. Y. 447; Murdock v. Gould, 193 N. Y. 369; Heller v. Pope, 250 N. Y. 132; Lese v. Lamprecht, 196 N. Y. 32; Wallach v. Riverside Bank, 206 N. Y. 434; Stanton v. Granger, 125 App. Div. 174; Guinzburg v. Blustein, 121 Misc. Rep. 784; Wilson v. Deen, 74 N. Y. 531; Pease Piano Co. v. Fiske, 145 N. Y. Supp. 978;
      Piretti v. Firestone Tire Co., 120 N. Y. Supp. 782; Morowski v. Rohrig, 3 Misc. Rep. 634; Pitcairn v. Hiss, 125 Fed. Rep. 110.)

      Francis C. Hoyt and John H. Jackson for respondent.
    The trial court properly submitted to the jury the question of fact as to whether or not the notes were subject to a condition precedent which had not been fulfilled. (Banque Franco-Americaine v. Bergstrom, 171 App. Div. 870; 225 N. Y. 710; Brady v. Nally, 151 N. Y. 258; Mitchill v. Lath, 247 N. Y. 377; Dubuc v. Lazell, 182 N. Y. 482.) The evidence established a delivery subject to a condition precedent which has not been fulfilled. (Blewitt v. Boorum, 142 N. Y. 357.)
   Crouch, J.

We are here concerned with a narrow phase of the parol evidence rule.

The defendant, who was the owner of certain valuable paintings, sought a loan of $25,000 from the plaintiff, who conducted an art gallery. On June 18, 1929, an agreement between the parties with respect to the transaction was entered into by means of a letter written by the plaintiff and accepted in writing by the defendant. That portion of the written agreement material here reads as follows: In order to enable you to finance your plans, I agree to lend you for six months the sum of $5,000 cash and to give you a six months’ note for $5,000 and one for $15,000 for nine months, in consideration of which you agree to deposit with me your paintings on the enclosed fist, numbered 1 to 12, at your risk.

You also agree to exchange similar notes with me for the same amounts and periods, which I agree to destroy if my notes given you are not discounted or if I do not have to meet them myself.

“ It is understood that I am to sell any of these paintings at the basic prices on the corrected fist and that any amount over these prices is to be equally divided between us. The first $5,000 cash which I am lending you is to be repaid before you receive any monies. After this has been done, you are to receive the basic price, and any profit is to be retained by me to offset the balance of the notes.”

Three promissory notes, all dated June 18, 1929, were made by the defendant and delivered to the plaintiff, two for $5,000 each payable in six months, and one for $15,000 payable in nine months. The plaintiff on his part gave the defendant $5,000 in cash and promissory notes aggregating $20,000 which were discounted by the defendant who received the money thereon to his own use, and were later paid by the plaintiff at maturity. The paintings were delivered to the plaintiff but have never been sold. Three thousand dollars was subsequently paid to plaintiff.

The action here is upon the three notes given by defendant to plaintiff. As an affirmative defense it was alleged that the notes were delivered subject to a condition that they were not to be paid by the defendant or enforced until the paintings were sold, and then only out of the proceeds of the sale, $5,000 out of the first money so received, and $20,000 out of the defendant’s share of the surplus over the agreed basic price of the pictures. Upon the trial defendant testified without objection or motion to strike out, that plaintiff told him immediately before the contract and notes were signed, that the notes would be held in his safe and not enforced until the paintings were sold.

On the one hand it is said that plaintiff in failing to object to the oral testimony and in failing to move to strike it out, consented that the proof was effective to modify and amplify the written agreement of June 18, 1929. The case chiefly relied upon for that contention is Brady v. Natty (151 N. Y. 258). On the other hand, under the asserted authority of Wattach v. Riverside Bank (206 N. Y. 434), it is said that the testimony, although admitted without objection and not denied, is wholly immaterial as matter of substantive law and cannot affect the written contract.

Since the amount, time and manner of payment is dealt with by the writing, the intent of the parties to embody therein all that element of the oral negotiation would ordinarily be conclusively presumed. (Cf. 5 Wigmore on Evidence [2d ed.], § 2430.) Therefore, it is argued that the oral testimony, though admitted without objection, has no legal effect, since the parol evidence rule is one of substantive law. For that view there is good authority in other jurisdictions. (See, for instance, Mears v. Smith, 199 Mass. 319; O’Malley v. Grady, 222 Mass. 202.) In this State, notwithstanding the general language of the concluding paragraph of the opinion in Wallach v. Riverside Bank (supra), the rule is otherwise.

This cotut, in many cases, has held, impliedly and expressly, that the parol evidence rule is one of substantive law. (See, inter alia, Wilson v. Been, 74 N. Y. 531; Eighmie v. Taylor, 98 N. Y. 288; Lese v. Lamprecht, 196 N. Y. 32; Ruppert v. Singhi, 243 N. Y. 156; Mitchill v. Lath, 247 N. Y. 377.) In the case last cited the rule was said to be “a rule of law which defines the limits of the contract to be construed. * * * It is more than a rule of evidence and oral testimony even if admitted will not control the written contract, * * * unless admitted without objection. (Brady v. Nolly, 151 N. Y. 258.) We are thus brought to consider the true holding in Brady v. Natty. That the question was_ there discussed as though it was evidentiary only is without significance. The written contract provided for payment upon completion of the work. Evidence was admitted without objection and without a motion to strike out to show an oral agreement for payment on other terms. It was contended that the parol evidencej although received by consent, could not overcome the presumption that the written agreement embraced the entire- contract. That contention was rejected. The court said that the parties have the right to make a rule of evidence for their own case, and they are presumed to have done so when testimony, otherwise incompetent, is received without objection and without any effort to have it stricken from the minutes, or disregarded by the trial court ” (p. 264). The court searched the record but failed to find any effort by motion or request to have the testimony disregarded. The plaintiff by that course was conclusively presumed to have waived the benefit of the parol evidence rule. Judge Vann, who wrote for the court in Brady v. Nally, later said while dealing with the same question in Loomis v. N. Y. C. & H. R. R. R. Co. (203 N. Y. 359, 367): “ No effect can be given to such evidence, even when received without objection, provided the court is asked in due form to instruct the jury that it was merged in the written agreement if they found there was one>” We think the phase of the parol evidence rule here in question may, therefore, be stated to be that in some form the attention of the trial judge must be directed to the fact that the writings integrate the contract and must be resorted to exclusively as proof thereof, otherwise error may not be asserted in this court. It is quite unlikely that the same learned judge who wrote in the two cases referred to should have intended to disturb the established rule by what was said without discussion in the Wattach, case. There, as an examination of the record shows, the oral testimony offered by the defendant to show the prior conversation was excluded under objection as immaterial. The exception to that ruling was the point chiefly argued.

While we reject the appellant’s contention that the written contract, complete on its face and altogether inconsistent with the prior conversations excludes the latter as matter of law, whatever the evidence, objections or rulings may have been, we, nevertheless, find that the attention of the trial judge was directed to the claim that the contract was integrated and furnished the exclusive proof thereof. At the close of the defendant’s case, plaintiff moved to dismiss the defense that the notes were not to be paid until the paintings were sold, upon the ground that there was no proof whatsoever to sustain it. The motion was denied. Plaintiff then stated that in view of the fact that all the written correspondence was before the court, he would rest. The motion was then renewed and denied with an exception. At the close of the main charge plaintiff requested the court to charge, “ that the agreement of June 18th, pursuant to which the notes were exchanged, does not contain any condition such as claimed by the defendant.” The request was denied and an exception taken. The rulings were erroneous. The contract was as matter of law integrated by the writings. The defense should have been dismissed.

The judgment should be reversed and judgment directed for the plaintiff for the amount demanded in the complaint, with costs in all courts.

Pound, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not voting.

Judgment accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Virginia Gray, Appellant and Respondent, v. First National Bank and Trust Company of Yonkers, Respondent and Appellant.

      (Argued January 19, 1934;
    decided February 27, 1934.)

      William J. Wallin for defendant, respondent and appellant.
    The relation between the bank and the plaintiff on March 3, 1933, was that of debtor and creditor. Such relationship continued until the suspension of business under the bank holiday, beginning March 4, 1933. No trust fund was created. Plaintiff is not entitled to a preferential payment over general creditors. (Genesee

      Wesleyan Seminary v. U. S. F. & G. Co., 247 N. Y. 52; Cook County Nat. Bank v. United States, 107 U. S. 445; Earle v. Pennsylvania, 178 U. S. 449; Liberty Nat. Bank v. McIntosh, 16 Fed. Rep. [2d] 906; 273 U. S. 769; Port Newark Nat. Bank v. Waldron, 46 Fed. Rep. [2d] 296; Blakey v. Brinson, 286 U. S. 254; Davis v. Elmira Sav. Bank, 161 U. S. 275; Palo Alto County v. Aldrich, 199 Iowa, 1; Gering v. Buerstetta, 118 Neb. 54; Fiman v. South Dakota, 29 Fed. Rep. [2d] 776; 279 U. S. 841; Chicago First Nat. Bank v. Selden, 120 Fed. Rep. 212.)

      Horace M. Gray for plaintiff, appellant and respondent.
    The defendant is trustee of the plaintiff’s savings account balance. (Davis v. Elmira Sav. Bank, 161 U. S. 275; Marine Bank of Chicago v. Fulton County Bank, 2 Wall. [U. S.] 252; Genesee Wesleyan Seminary v. U. S. F. & G. Co., 247 N. Y. 52; Massey v. Fisher, 62 Fed. Rep. 958; Merchants Nat. Bank v. School District, 94 Fed. Rep. 705; Moreland v. Brown, 86 Fed. Rep. 257; Carlson v. Kies, 75 Wash. 171; People v. City Bank of Rochester, 96 N. Y. 32; Ridden v. Thrall, 125 N. Y. 572; Northern Sugar Corp. v. Thompson, 13 Fed. Rep. [2d] 829; Greer v. Dalles Nat. Bank, 98 Fed. Rep. 681; Fogg v. Tyler, 109 Me. 109; State v. Grills, 35 R. I. 70; First Nat. Bank v. Hall, 119 Ala. 64; Stoller v. Coates, 88 Mo. 514; Blakey v. Brinson, 286 U. S. 254; Van Wagoner v. Buckley, 148 App. Div. 808; Shawmut Corp. v. Bobrick Sales Corp., 260 N. Y. 499.) The trust fund included the plaintiff’s total balance. (Davis v. McNair, 48 Fed. Rep. [2d] 494; Stoller v. Coates, 88 Mo. 514; Anderson v. Pacific Bank, 112 Cal. 598.)
   Crouch, J.

On March 3, 1933, the plaintiff had a savings account with the defendant bank, in which there was a balance of $27,728.07. About two-twenty o’clock p. M. on that day she went to the bank and stated that she wished to purchase at the then market price $10,000 par value of Fourth Liberty Loan four and one-quarter per cent bonds, the cost thereof to be charged to her savings account. She was told that the bank would put in an order to its brokers for the bonds, if plaintiff would sign the customary form. She thereupon signed the following order:

“ The First National Bank & Trust Co., 3 Main Street, Yonkers, N. Y.
“No. 4691
“ Date Mar. 3, 1933.
“ Buy For my account and risk the following securities: I hereby authorize you to place the order with any broker having a membership on the New York Stock Exchange, and to charge my deposit account with you for cost of same.
“ Name /sgd / Virginia W. Gray Address 2 Sherwood Terrace
10M Liberty 4th 4%
“ Order placed on Mar. 3, 1933, at 2:20 p. m.
“ JH.”

The bank official told plaintiff that she should leave her pass book with the bank, as the exact cost of the bonds would not be known by the bank until the following day, and the bank could not make any charge or withdrawal from her account until then. The bank telephoned the order to its brokers and the bonds were purchased by the brokers about two-twenty-four o’clock p. m. The brokers billed the cost to the bank, which received the statement the following morning, March 4, 1933. The bank at that time was closed under the proclamation of the Governor of the State, and thereafter remained closed under the subsequent proclamation of the President of the United States.

On March 20, 1933, a conservator was appointed by the Comptroller of the Currency under the Bank Conservation Act of March 9, 1933. The bank has never been licensed to reopen or to do business as provided in the Bank Conservation Act. It is still in charge of the conservator. The bank has not paid for the bonds, nor have they been delivered to it. The cost of the bonds, with interest and brokerage as billed to the bank, was $10,247.78.

This action was brought on July 25, 1933, upon the theory that, by reason of the facts above stated, the entire balance in plaintiff’s savings account was segregated from the assets of the bank and set aside as a trust fund out of which the purchase price of the bonds was to be paid. The judgment asked for was that defendant pay from said trust fund to its brokers the amount due for the bonds, and order said brokers to make delivery thereof to the plaintiff. For that relief plaintiff has been granted a summary judgment.

The conservator was not made a party to the action. Upon the argument a question was raised as to whether he should have been made a party and as to what, in any event, would be the effect of a judgment against the bank or against its conservator.

Section 203 of the Bank Conservation Act (U. S. Code, tit. 12, § 203) provides as follows: Conservator: appointment, powers and duties; compensation. Whenever he shall deem it necessary in order to conserve the assets of any bank for the benefit of the depositors and other creditors thereof, the Comptroller of the Currency may appoint a conservator for such bank and require of him such bond and security as the Comptroller of the Currency deems proper. The conservator, under the direction of the Comptroller, shall take possession of the books, records, and assets of every description of such bank, and take such action as may be necessary to conserve the assets of such bank pending further disposition of its business as provided by law. Such conservator shall have all the rights, powers and privileges now possessed by or hereafter given receivers of insolvent national banks and shall be subject to the obligations and penalties, not inconsistent with the provisions of this title, to which receivers are now or may hereafter become subject. During the time that such conservator remains in possession of such bank, the rights of all parties with respect thereto shall, subject to the other provisions of this subchapter, be the same as if a receiver had been appointed therefor. * * * ”

It is the function of a conservator to conserve and not, as in the case of a receiver, to liquidate. Nevertheless, by the terms of the act the rights of all parties are the same as if a receiver had been appointed.” For guidance on jurisdictional and procedural matters we may, therefore, resort to decisions made in receivership cases. It seems that the taking over of a national bank by the Comptroller of the Currency still leaves the bank capable of suing and being sued. (Bank of Bethel v. Pahquioque Bank, 14 Wall. [U. S.] 383; Green v. Wallkill Nat. Bank, 7 Hun, 63.) Nor is the receiver a necessary party (Denton v. Baker, 79 Fed. Rep. 189), though he may appear and defend a suit against the bank. (United States v. Young, 128 Fed. Rep. 111; National Shoe & Leather Bank v. Mechanics Nat. Bank, 89 N. Y. 440.) The receiver takes legal title to the property of the bank as a trustee, but holds subject to all outstanding rights. (Scott v. Armstrong, 146 U. S. 499.) State courts may determine a claim and establish it as preferred (Earle v. Pennsylvania, 178 U. S. 449; Flint Road Cart Co. v. Stephens, 32 Mo. App. 341), so far at least as preferences may arise from contract (Davis v. Elmira Sav. Bank, 161 U. S. 275, 288); but the judgment should merely direct the claim to be recognized, certified to the Comptroller and paid in the due course of administration. (M err ell v. First Nat. Bank, 75 Fed. Rep. 148; affd., 173 U. S. 131.) We are, therefore, of the opinion that while the action was properly brought against the bank alone, the judgment in its present form goes too far.

The fundamental question, however, is whether the contract between plaintiff and the bank served to create a trust fund in the hands of the bank to be used for a specific purpose. We are unable to see that the original relationship of debtor and creditor between the plaintiff and the bank was in any wise changed by what was said and done on the afternoon of March 3, 1933. The bank undertook to render a service commonly rendered by all banks to their customers. Acting at the request of the plaintiff it bought bonds for her through its brokers. Both parties understood that plaintiff’s credit was to be debited with the cost of the bonds, probably on the following morning, when that cost should become known. For the purpose of making that debit the bank book was left in the possession of the bank. No entry was made therein or on the books of account of the bank; nor could such entries have been made until the cost of the bonds was known. Nothing was said or done consistent with an intent to segregate and set aside any identifiable fund to be used for the payment of the bonds. To say that the entire balance in plaintiff’s account was segregated and set aside merely because the bank book was left in the hands of the bank, is to give a significance to that fact not borne out by the evidence.

Whether the whole or a part of a general deposit becomes by some transaction a special deposit or fund, to be kept intact and used for a specific purpose, depends, as in the case of any other contract, upon the intent of the parties. The evidence of that intent is what was said and done when the transaction took place. The evidence here falls far short of disclosing such an intent under our own decisions (Cf. People v. City Bank of Rochester, 96 N. Y. 32; Shawmut Corp. v. Bobrick Sales Corp., 260 N. Y. 499) and still farther under the law as stated in Blakey v. Brinson (286 U. S. 254).

The judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs to the defendant in this court and in the Appellate Division.

Pound, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not voting.

Judgment accordingly.


text:
    In the Matter of the Claim of Anna Di Donato, Respondent, against Morris Rosenberg et al., Appellants. State Industrial Board, Respondent.

      (Argued January 9, 1934;
    decided February 27, 1934.)

      Joseph F. Donovan, Alfred W. Andrews and H. Dudley Bierau for appellants.
    The action of the State Industrial Board in increasing the rate of death benefits to the surviving children under the age of eighteen years requires the insurance carriers to pay death benefits in an amount in excess of sixty-six and two-thirds percentum of the average weekly wages of the deceased, which is contrary to the provisions of subdivision 2 of section 16 of the Workmen’s Compensation Law (Cons. Laws, ch. 67). (Matter of Plouff v. Port Henry L., H. & P. Co., 225 App. Div. 704.) The Appellate Division was in error, as matter of law, in affirming the award. (Ziegler v. Pictorial Review Co., 216 App. Div. 614; Carlin v. Lockport Paper Co., 214 App. Div. 354.)

      John J. Bennett, Jr., A ttorney-General (JohnR. O’Hanlon of counsel), for State Industrial Board, respondent.
    The award increasing the “compensation payable to the minor children is in accordance with subdivision 2 of section 16 of the Workmen's Compensation Law, and is proper. (King v. New York, O. & W. Ry. Co., 213 App. Div. 509.)
   Crouch, J.

In 1923 Jerry Di Donato died as a result of accidental injuries arising out of and in the course of his employment. An award for death benefits was made to the widow and to eight children under the age of eighteen years. The widow received a weekly compensation of $8.05 and each child $1.32, the aggregate being sixty-six and two-thirds pereentum of the average wages of the deceased. That was the maximum compensation under the provisions of section 16, subdivision 2, of the Workmen’s Compensation Law (Cons. Laws, ch. 67). Subsequently, as each of the older children reached the age of eighteen years, the rate to the remaining children was increased proportionately so as to keep the total compensation at the statutory maximum.

On June 25, 1928, all future installments of the widow’s compensation were commuted to one lump sum under section 25 of the Workmen’s Compensation Law. The commuted sum of $7,231.01 represented the then present value of her award during her full expectancy of life based upon the survivorship annuitant’s table of mortality as provided in section 27 of the Workmen’s Compensation Law.

The widow died on July 23, 1932, and on July 29, 1932, an award was made increasing the compensation of the five children then finder the age of eighteen years, so that each received $3.85 per week or thirteen and one-third pereentum of the average wages of the deceased. The appeal is from that award. It is contended that the effect thereof is illegally to compel the payment of death benefits in excess of the statutory maximum of sixty-six and two-thirds per centum of the average wages of the deceased.

While the Workmen’s Compensation Law is to be liberally, construed to serve the sdcial need underlying it, it may not be stretched beyond the limits established by the Legislature, even in cases of hardship. (Matter of Beach v. Velzy, 238 N. Y. 100, 105.) Article 2 of the Law, dealing specifically with the subject of compensation, is instinct with the legislative intent generally to limit the liability of the employer to sixty-six and two-thirds per centum of the average wages of the injured employee during disability or for fixed maximum periods. In case of death, we find the same limitation of liability to the surviving wife and children. Section 16, subdivision 2, as it stood when the original award in this case was made, read in part as follows: “ If there be a surviving wife * * * and no child of the deceased under the age of eighteen years, to such wife * * * thirty percentum of the average wages of the deceased during widowhood * * * with two years’ compensation in one sum, upon remarriage; and if there be a surviving child or children of the deceased under the age of eighteen years, the additional amount of ten percentum of such wages for each such child until the age of eighteen years; in case of the subsequent death or remarriage of such surviving wife * * * any surviving child of the deceased employee, at the time under eighteen years of age, shall have his compensation increased to fifteen percentum of such wages, and the same shall be payable until he shall reach the age of eighteen years; provided that the total amount payable shall in no case exceed sixtv-six and two-thirds percentum of such wages.”

It has been properly held that the two years’ compensation in one sum, payable to the widow on remarriage, is simply an advance payment in a lump sum and must be considered in determining benefits to surviving children so as to keep the total benefits within the statutory limitation. (Carlin v. Lockport Paper Co., 214 App. Div. 354.) We can see no distinction in principle between that case and this, although the same court has reached a contrary conclusion.

The limitation is absolute. It has, in effect, so been held in cases arising under subdivision 4 of the same section. (Matter of Plouff v. Port Henry Light, Heat & Power Co., 225 App. Div. 704; affd., 250 N. Y. 616; Ziegler v. Pictorial Review Co., 216 App. Div. 614.) The command of the statute is that in no case shall the total amount payable exceed sixty-six and two-thirds percentum of the average wages of the deceased. Instead of a lump sum for two years, the widow here received a lump sum for the full expectancy of her life, extending well beyond the time when the youngest child will become eighteen years of age. The practical effect is the same as though the widow still lived and received her compensation weekly. The contingencies of death and remarriage with their statutory consequences were deleted under the facts here by the commutation. Any other construction would exact payment beyond the limit of liability. The benefits to the widow and those to the children, while separately fixed by the award, may not be treated as separate entities. It is reasonably clear that when the commutation was made, it was with an eye to the welfare of the children as well as to that of the widow. (Cf. Matter of Di Donato v. Rosenberg, 221 App. Div. 624.) The family as a family was to be kept intact and provided for by the authorized use of the commuted fund, as well as by the compensation to the children. We may assume, perhaps, that the beneficial results of the disposition so made continue to inure to the children, notwithstanding the death of the mother. If not, it is due to a defect either in the law or in its administration, which may not be remedied by the compulsion of an unauthorized award.

The order of the Appellate Division and the award of the State Industrial Board should be reversed and the former award reinstated, with costs in this court and in the Appellate Division against the State Industrial Board.

Pound, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not voting.

Ordered accordingly.


text:
    Malvina Cooper, Appellant, v. Morris E. Gossett, Respondent.
    (Argued January 5, 1934;
    decided February 27, 1934.)

      Samuel W. Dorfman and Jacob R. Schiff for appellant.
    Defendant having violated his promise to comply with the provisions of the Tax Law and having betrayed plaintiff’s confidence, is estopped from asserting section 278 of the Tax Law (Cons. Laws, ch. 60) as a defense. (Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458; New York Rubber Co. v. Rothery, 107 N. Y. 310.) The seller’s failure to pay the stamp tax required by sections 270-278 of the Tax Law does not constitute a defense to a negotiable promissory note given in payment for the stock. (Matter of Wylly, 210 Fed. Rep. 954.) Despite the failure to affix the stock transfer stamp required by the Tax Law, the transfer vests in the transferee a good and valid title to the stock. (Bean v. Flint, 204 N. Y. 153.)

      I. Maurice Wormser and Morris E. Gossett for respondent.
    The failure of plaintiff to affix the stamp for the transfer tax on the certificate of stock transferred by her to defendant is a valid defense to this action brought to recover the consideration for the sale or transfer. Public policy requires that the Tax Law be enforced. (Bean v. Flint, 204 N. Y. 153; Sheridan v. Tucker, 145 App. Div. 145; Bendell v. De Dominicis, 251 N. Y. 305; Matter of Releigh, 75 Misc. Rep. 55; Phillips v. Grossman, 76 Misc. Rep. 499.) Because this action is based upon a promissory note given in part payment of the stock, and not for the purchase price thereof, does not prevent the application of the prohibitory provisions of the Tax Law. (Matter of Borst, 129 Misc. Rep. 424; 222 App. Div. 707; 248 N. Y. 556; Hall v. Davis, 95 Misc. Rep. 315; Sirkin v. Fourteenth St. Store, 124 App. Div. 384; Griffin v. Wells, 3 Den. 226; Accetta v. Zupa, 54 App. Div. 33; Embrey v. Jemison, 131 U. S. 336; McMullen
      v. Hoffman, 174 U. S. 639; Turck v. Richmond, 13 Barb. 533; Devlin v. Brady, 36 N. Y. 531; Cowing v. Altman, 71 N. Y. 435; Hat Goods v. Barrett, 106 N. Y. Supp. 189; Arotzky v. Kropnitzky, 98 N. J. L. 344.) The defendant is not estopped from asserting plaintiff’s violation of article 12 of the Tax Law as a defense. (Phillips v. Grossman, 76 Misc. Rep. 497; Shapley v. Abbott, 42 N. Y. 443; Sheridan v. Tucker, 145 App. Div. 145; Bendell v. De Dominicis, 251 N. Y. 305; Burns v. McCormick, 233 N. Y. 230; Connell v. Slater,. 137 Misc. Rep. 249.)
   Crouch, J.

The defendant, a practicing lawyer, was the secretary of a corporation in which the plaintiff was a stockholder. They had known each other for many years. In 1931 the plaintiff sold to the defendant five shares of her stock for $2,000, receiving $500 in cash and three notes for $500 each. The sale was closed in the defendant’s office.- The amount of the stamp tax which the plaintiff was required to pay on the transfer was ten cents. That sum was offered to the defendant. He said:

Never mind. I will put the stamp on myself. I am the secretary of this company.” He did not do so. Before the maturity of the first of the three notes he paid $75 thereon. He has made no other payment.

This action is brought upon that note. The defend-ant says there can be no recovery because plaintiff did not affix the stamps for the transfer tax. The Appellate Division with some reluctance has so held. The decision recognizes the plaintiff’s equities arising out of the circumstances stated above, but on grounds of public policy holds that the necessity of enforcing the tax statute overrides them. Balancing the several elements inherent in the case, we do not find public policy so exigent.

The tax upon transfers of stock and other corporate securities is imposed by section 270 of the Tax Law (Cons. Laws, ch. 60). The person making the sale or transfer is required to pay the tax and it is his duty to procure, affix and cancel the stamps representing the amount thereof. To insure the payment of the tax certain sanctions are provided. Failure to pay is, by section 272, made a misdemeanor; and by section 277, a civil penalty of ten dollars a share, recoverable by the State, is imposed. Finally, section 278 provides that no transfer upon which the tax is not paid at the time of the transfer “ shall be made the basis of any action or legal proceedings, nor shall proof thereof be offered or received in evidence in any court in this state.”

Assuming for the moment that the transfer is the basis ” of this action, within the meaning of section 278, we are nevertheless of the opinion that the defendant may not, under the circumstances disclosed by the evidence, take advantage of the plaintiff’s failure to pay the tax. The transfer was not void. By it the title to the stock was vested in the defendant. In the event of suit against him, he could waive the defense under section 278 by failing to plead it. (Bean v. Flint, 204 N. Y. 153.) That being so, he could waive it in any other way. Here the defendant, knowing of the failure of plaintiff to pay the tax, nevertheless paid the plaintiff subsequent to the transfer $75 on account of the note. He might very well be held thereby to have waived the statutory defense.

Whether there was a waiver or not, it would be against all conscience to permit the defendant to take advantage of bhe plight into which his own fraud has cast the plaintiff. Against the policy which demands enforcement of tax statutes may be weighed the policy which demands honest dealing between man and man and the prevention of bald fraud. Since the State has power to inflict severe penalties, both civil and criminal, for a violation of the statute, its enforcement will not be seriously affected by depriving a transferee of an optional defense when he has clearly forfeited his right to it by his own evil and misleading conduct. So far as any relevant public policy is concerned, there is no distinction between waiver and estoppel.

Where a transferee waives the statutory defense, or is by his conduct precluded from asserting it, there seems to be nothing in the law which prevents him from paying the tax and affixing the stamps himself. While it is primarily the duty of the transferor to do so, a failure to perform that duty merely subjects him to the statutory penalties. An executed sale which passes a valid title to the stock, also confers the right to have it transferred on the corporate books, provided the tax is paid by somebody before that transfer is made. What the State is chiefly interested in is the payment of the tax. (Matter of Borst, 129 Misc. Rep. 424; affd., 222 App. Div. 707; affd., 248 N. Y. 556; compare Tax Law, § 272.) The defendant could have paid the tax as he agreed to do.

Since the defendant is precluded by his own acts from setting up the defense in question, it becomes unnecessary to determine whether the action here is or is not based upon the transfer. (Cf. Matter of Wylly, 210 Fed. Rep. 954.)

The judgment of the Appellate Division and the determination of the Appellate Term should be reversed and the judgment of the Municipal Court in plaintiff’s favor affirmed, with costs to the appellant in the Appellate Term, the Appellate Division and in this court.

Pound, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not voting.

Judgment accordingly.


author: ITubbs, J.

text:
    Fred L. Seufert, Appellant, v. The Commercial Travelers Mutual Accident Association of America, Respondent.
    (Argued January 18, 1934;
    decided February 27, 1934.)

      Winfred C. Allen for appellant.
    It was not incumbent upon the plaintiff to disprove, as a part of his prima facie cause of action, that the defendant failed to give due notice of the assessment. (Demings v. Supreme Lodge, Knights of Pythias, 20 App. Div. 622; Meagher v. Supreme Lodge, 20 App. Div. 622; 161 N. Y. 662; Bianco v. Lentino, 177 N. Y. Supp. 244; Victoria v. Mutual Protective Assn., 162 N. Y. Supp. 652; Meagher
      v. Life Union, 20 N. Y. Supp. 247; Ellis v. National Provident Union, 50 App. Div. 255; Van Valkenburgh v. American Popular Ins. Co., 70 N. Y. 605; Murray v. New York Life Ins. Co., 85 N. Y. 236.) In order to defeat the plaintiff’s cause of action it was incumbent upon the defendant to establish that it gave to the plaintiff due notice of the assessment and upon that issue it had the burden of proof. (Fischer v. Metropolitan Life Ins. Co., 167 N. Y. 178; Baxter v. Brooklyn Life Ins. Co., 119 N. Y. 450; Liesny v. Metropolitan Ins. Co., 147 App. Div. 253; Victoria v. Mutual Protective Assn., 162 N. Y. Supp. 652; Auspitz v. Equitable Life Assur. Society, 115 N. Y. Supp. 109; Ellis v. National Provident Union, 50 App. Div. 255; Demings v. Supreme Lodge, Knights of Pythias, 20 App. Div. 622; Wajczeliunas v. St. Peter’s Lithuanian Society, 141 App. Div. 852; Meyer v. Knickerbocker Life Ins. Co., 73 N. Y. 516; Attorney-General v. Continental Life Ins. Co., 33 Hun, 138; Wachtell v. Noah Widows & Orphans Benevolent Society, 84 N. Y. 28; Meeder v. Provident Sav. Life Assur. Society, 58 App. Div. 80; Railway Mail Assn. v. Moore, 15 Fed. Rep. [2d] 547; Murray v. New York Life Ins. Co., 85 N. Y. 236.)

      Charles J. Nehrbas and Henry C. Moses for respondent.
    The effect of the rulings of the trial court was to require defendant to prove that the plaintiff had received notice of the assessment. (Wolarsky v. New York Life Ins. Co., 120 App. Div. 99; Hurley v. Olcott, 198 N. Y. 132.) The court erred in charging the jury that the burden of proof was on the defendant. (Farmers L. & T. Co. v. Siefke, 144 N. Y. 354; Murray v. Narwood, 192 N. Y. 172; Lobdell v. Village of Northville, 151 App. Div. 384; Griffith v. American Bridge Co., 157 App. Div. 264; Lynch v. Figge, 200 App. Div. 92.)
   ITubbs, J.

Appellant was the holder of a membership certificate in the respondent membership corporation, which insured him against accidental injury. On June 22, 1931, he suffered an injury covered by the certificate of membership. He filed a claim as provided in the certificate. The respondent refused to pay the claim upon the ground that he had ceased to be a member prior to the date of his injury. The certificate provides for the levying of assessments against members for the purpose of paying losses and expenses. It provides that the mailing of a notice of assessment shall constitute notice thereof, and that upon failure to pay an assessment within forty-five days from the date of the notice, the membership shall terminate and the certificate be canceled without further notice.

In this action to recover upon the certificate, the complaint is in the usual form. The respondent, as a defense, alleged that an assessment was duly levied and was payable upon or before June 18, 1931, four days before the accident; that the assessment was not paid prior to the accident and that the certificate was terminated and canceled before appellant’s injury was received.

Appellant established a prima facie case by introducing the certificate in evidence and with testimony showing the accident, the furnishing of notice and the failure to pay. The respondent concedes that appellant established a prima facie case. Respondent’s evidence tends to establish that a notice of assessment was duly mailed to appellant and that by failure to pay it, the certificate by its terms terminated on June 18th, before the accident. Appellant introduced evidence that the notice was never received. The only issue litigated was whether the notice was mailed.

The learned trial court charged the jury in effect that the defense upon that issue was an affirmative one and that the burden of proof on that defense rested upon the defendant and if the evidence which it believes was evenly balanced, the plaintiff was entitled to recover. Whether that charge constitutes reversible error is the only question for our determination.

Proof of payment of an assessment was not a part of the plaintiff’s case. Payment was not due until after notice of assessment. Non-payment becomes a defense only after forty-five days from the date of mailing of the notice of assessment. The certificate was valid and in force until duly terminated according to its terms. It could not be terminated until a notice of assessment had been properly mailed and forty-five days had elapsed without payment of the assessment.

The defense was an affirmative one which arose after the certificate was issued and constituted no part of the plaintiff’s complaint. (Fischer v. Metropolitan Life Ins. Co., 167 N. Y. 178.) “ The general rule of pleading, which also accords with reason, is that defenses which assume or admit the original cause of action alleged, but are based upon subsequent facts or transactions which go to qualify or defeat it, must be pleaded and proved by the defendant.” (Whitlatch v. Fidelity & Casualty Co., 149 N. Y. 45, 50.)

In actions against mutual benefit associations on certificates where the defense of failure to pay an assessment is pleaded, the burden of proof is on the defendant to establish such defense by a fair preponderance of the evidence. (Fischer v. Metropolitan Life Ins. Co., supra; Railway Mail Assn. v. Moore, 15 Fed. Rep. [2d] 547, 550; Murray v. N. Y. Life Ins. Co., 85 N. Y. 236; Mutual Reserve Fund Life Assn. v. Hamlin, 139 U. S. 297; Shea v. Massachusetts Benefit Assn., 160 Mass. 289; Elmer v. Mutual Benefit Life Assn., 47 N. Y. St. Repr. 35; affd., 138 N. Y. 642.)

Our intermediate courts have uniformly so stated the rule. (Ellis v. National Provident Union, 50 App. Div. 255; Demings v. Supreme Lodge Knights of Pythias, 20 App. Div. 622; app. dismissed, 161 N. Y. 662; Wajczeliunas v. St. Peter’s Lithuanian Soc., 141 App. Div. 852; Liesny v. Metropolitan Life Ins. Co., 147 App. Div. 253; app. dismissed, 209 N. Y. 611.)

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court.

Pound, Ch. J., Crane, Lehman, O’Brien and Crouch, JJ., concur; Kellogg, J., not voting.

Judgment accordingly.


author: O’Brien, J.

text:
    Alexander H. Vandenberg, Respondent, v. Peter Reiss Construction Company, Inc., et al., Appellants.
    (Argued January 23, 1934;
    decided February 27, 1934.)

      J. Alvin Van Bergh and David Katz for George H. Flinn Corporation, appellant.
    Failure to guard against a remote possibility of accident, one which could not, in the exercise of ordinary care, be foreseen, does not constitute negligence. (Van Leet v. Kilmer, 252 N. Y. 454; Caspersen v. La Sala Bros., 253 N. Y. 491; Hooey v. Airport Construction Co., 253 N. Y. 486.) This appellant owed plaintiff no duty based upon possession and control, since it had neither possession nor control on the day of the accident. (Lafredo v. Bush Terminal Co., 261 N. Y. 323; Potter v. N. Y., O. & W. Ry. Co., 261 N. Y. 489; Cuttings v. Goetz, 256 N. Y. 287; Kilmer v. White, 254 N. Y. 64; Armstrong v. City of Tulsa, 102 Okla. 49; Canal Constr. Co. v. Clem, 163 Ark. 416l Cunningham v. Gillespie Co., 241 Mass. 281; Campbel v. Holding Co., 251 N. Y. 446; Coleman v. Guidone & Son, 192 App. Div. 120; Williams v. Gillen Dock Co., 258 Fed. Rep. 591; Ryan v. Feeney & Sheehan Bldg. Co., 239 N. Y. 43; Ford v. Sturgis, 14 Fed. Rep. [2d] 253; Hooey v. Airport Construction Co., 253 N. Y. 486.)

      Theodore H. Lord, James B. Henney and Daniel R. Harvey for Peter Reiss Construction Company, Inc., appellant.
    The removal of the rung from the ladder at a point above the mezzanine floor to which it served as a means of ingress and egress to the platform below did not create a dangerous condition, and there is, therefore, no evidence of any negligence on the part of this appellant, and the complaint should be dismissed. (Schmidt v. City of New York, 179 App. Div. 667; Marsh v. Chickering, 101 N. Y. 396.)

      Matthew T. Abruzzo and Jerome H. Barr for respondent.
    The possibility of accident was not so remote as to excuse appellant Flinn for allowing the dangerous condition to prevail. (Tinker v. N. Y., O. & W. Ry. Co., 157 N. Y. 312; Gilmartin v. Buchanan, 134 App. Div. 587; Rice v. Cummings Construction Co., 169 App. Div. 832; 220 N. Y. 564; Cdiver v. Crowell, 211 App. Div. 199; Kunz v. Howard, 143 App. Div. 830; Roessle v. Lancaster, 140 App. Div. 926; 205 N. Y. 626; Gardner v. Friederich, 25 App. Div. 521; 163 N. Y. 568.) The evidence clearly established the liability of the appellant Reiss for the injuries sustained by the plaintiff. (Rix v. Siegel, 235 App. Div. 499; Perricone v. Abrams, 245 N. Y. Supp. 690.) The removal of the rung from the ladder created a dangerous condition for which the appellant Reiss was hable. (Greener v. General Electric Co., 147 App. Div. 462; Carey v. Manhattan Ry. Co., 116 App. Div. 247; Preiss v. City of New York, 69 Misc. Rep. 492; Barker v. Paulson, 116 N. Y. 660; Rosenberg v. Schwartz, 260 N. Y. 162.)
   O’Brien, J.

In this action for negligence plaintiff recovered judgment for personal injuries against both defendants. He was an assistant engineer employed by the Board of Transportation and at the time of his injury was engaged in inspecting a subway railroad station in New York city which was in course of construction by these two defendants under separate contracts with the Board of Transportation. Never before had he been in this station. While he was ascending a wooden ladder placed in a well between the station platform and the mezzanine floor, his clothes caught on the ends of wire mesh projecting from the edge of the concrete flooring of the mezzanine. This sudden contact with the wires caused him to lose his balance and, in an effort to save himself from falling, he reached with his hand for one of the rungs of the ladder but this rung had been removed. Grasping nothing except the air, he fell from the ladder and was injured. He was carrying a flash light at the time and the jury could find that there was very little illumination in the station and that it was dark.

The Flinn Company had the contract for the heavy work of constructing the station. The Reiss Company was the contractor for the finishing work. The work of the Flinn Company had been substantially completed on January 12th. The work of the Reiss Company consisted in erecting hollow tile walls, installing conduits and plumbing, building stairways and other items. It took possession on January 14th and was in possession on February 19th, the day of the accident. It was responsible for the lack of light and also was in control of the ladder which had been built by its employee. The wires had been installed by the Flinn Company and the jury could find on conflicting evidence that they had been left by it in the condition in which they were at the time of the accident and also that from the first to the nineteenth of February the Flinn employees continued at work intermittently on the job for the purpose of completing small details. They moved some drain pipes, filled in the space with concrete and painted some of the columns, but they were not working in the station on the day of the accident. At that time the Flinn Company was not in possession or control of the premises and had not been in control subsequent to January 12th.

If any liability attaches to the Flinn Company, it must rest exclusively upon the fact that it left the wires in a condition which the jury found was dangerous and which they found to constitute a concurring cause of plaintiff’s injury. The assistant superintendent of the Flinn Company admitted that good construction requires that the wires should not stick out, but this opinion undoubtedly had reference to the final construction. The inspector for the Board testified that they should be encased in concrete but that, with proper fighting, they would not, pending completion of the station, be dangerous to one accustomed to construction surroundings. This opinion in respect to encasing in concrete must also have reference to final construction. The Flinn Company obeyed the orders of the Board’s engineers in respect to these wires. There is some doubt whether the plans required them to be left as they were in order to enable the Reiss Company to fill in the space with concrete, or whether the plans required that the ends should be cut off. Eventually they were cut off. The engineers of the Board differed in their reading of the plans.

The condition in which the Flinn Company left the wires, by direction of the engineer prior to the completion of the finishing contract by the Reiss Company, was not dangerous, provided the Reiss Company had properly lighted the station or even if it had located the base of the ladder a foot or two nearer to the wall so that its top would not approach so closely to the wires or if it had supplied a ladder with the full number of rungs. As a resonably prudent builder, acting under directions of the engineer, the Flinn Company was not bound to foresee such an unusual combination of circumstances. There is no evidence to indicate that it acted in a manner different from any other competent and careful builder.

The judgment as to the appellant Peter Reiss Construction Company should be affirmed, with costs, the judgment as to the appellant George H. Flinn Corporation reversed and the complaint dismissed as against it, with costs in all courts against respondent.

Pound, Ch. J., Crane, Lehman, Hubbs and Crouch, JJ., concur; Kellogg, J., not voting.

Judgment accordingly.


author: Chough, J.

text:
    Alice Duggan, Respondent, v. Charles H. Platz et al., Appellants, Impleaded with Another.
    (Argued January 17, 1934;
    decided February 27, 1934.)

      Robert E. Whalen for appellant.
    The judgment should have provided for adjustment of the equities between the parties. (Allerton v. Allerton, 50 N. Y. 670; Berry v. A. C. Ins. Co., 132 N. Y. 49; Hay v. Hay, 13 Hun, 315; Kley v. Hedy, 149 N. Y. 346; Marr v. Tumulty, 256 N. Y. 15; Grosch v. Kessler, 256 N. Y. 477; Howard v. City of Buffalo, 211 N. Y. 241; Zeiser v. Cohn, 207 N. Y. 407; Lightfoot v. Davis, 198 N. Y. 261; Mott v. Oppenheimer, 135 N. Y. 312; Steinbach v. Prudential Ins. Co., 172 N. Y. 471.) This is a case for an interlocutory judgment, to be followed by a final judgment. (Hathaway v. Russell, 7 Abb. N. C. 138; Mundorff v. Mundorff, 1 Hun, 41; Ensign v. Nelson, 49 Hun, 215; N. Y. Bank Note Co. v. Hamilton Eng. Co., 56 App. Div. 488; Kliger v. Rosenfeld, 120 App. Div. 396; Pierce v. McLaughlin R. E. Co., 121 App. Div. 501; Moore v. Reinhardt, 132 App. Div. 707; Del Genovese v. Del Genovese, 149 App. Div. 266.)

      Roscoe Irwin for respondent.
    Appellants have no equities which should have been adjusted in the judgment herein. (Unckles v. Colgate, 148 N. Y. 529; Rubin v. Yedlin, 224 App. Div. 768; Masson v. Bovet, 1 Den. 69; Hammond v. Pennock, 61 N. Y. 145; Guckenheimer v. Angevine, 81 N. Y. 394; Moore v. Mutual Reserve Fund Life Assn., 121 App. Div. 335; Parton v. Metropolitan Life Ins. Co., 129 Misc. Rep. 493; 224 App. Div. 672.)
   Chough, J.

The action was brought to rescind the sale of certain shares of stock in the corporate defendant made by plaintiff to the individual defendants, and to compel the individual defendants to account to the plaintiff and to the corporate defendant for their acts and for all profits and income realized by them.

The transaction between the parties took place in 1919. This action was not commenced until 1930. It is based upon fraud. The individual parties were the only stockholders in the corporate defendant, which operated a retail book store in Albany, N. Y. The intermingled affairs of all the parties had been conducted with the utmost informality. From about 1922 no meeting of the stockholders or of the directors had been held. All the parties had had their living quarters on the upper floors of the building, owned by the corporation, on the first floor of which its business was carried on by them. The sole consideration for the transfer of the stock had been an agreement by the defendants which involved among other things the discontinuance of his own book business by the defendant Charles H. Platz, the transfer of his stock of books to the defendant corporation and the participation upon certain terms by both the individual defendants in the business of the corporation.

When, after the existence of such a relationship for eleven years, plaintiff elected to rescind the transfer and recover the stock, demanding at the same time an accounting to her and to the corporation, it was clear that many conflicting equities might require adjustment before plaintiff would be entitled to the relief for which she asked. It was not necessary for the defendants under such circumstances to ask affirmatively in their answer for such an adjustment. The plaintiff was equitably bound to do equity as a condition precedent to obtaining equitable relief. In molding its decree, the court has power and it is its duty to protect the equities of all parties. If the court sees fit to give affirmative relief to the defendants in a case like this, it will do so. (Hubbard v. Tod, 171 U. S. 474, 501; Gould v. Cayuga County Nat. Bank, 86 N. Y. 75, 79.) The defendants, even though guilty of the fraud charged, were not outlaws. (Stoffela v. Nugent, 217 U. S. 499, 501.)

The case was sent to a referee to hear and determine all issues of law and fact. The issues relating to the agreement and to the alleged fraud in its procurement were fully litigated. Since a decision for the defendants on the issue of fraud would substantially end the case, it was stipulated in open court that the referee should first determine that issue, leaving the other questions, including an accounting, open until his decision was announced. The decision was in favor of the plaintiff. It directed a judgment not only rescinding the transfer 'of stock but unqualifiedly ordering its retransfer to the plaintiff. The latter provision may have been inadvertent, since the report of the referee stated specifically that the matter of an accounting was held for future determination in accordance with the stipulation. It is quite likely that in the mind of the referee the accounting was to be the means by which the equities, if any, were to be determined and the terms of the retransfer fixed. However that may be, instead of an interlocutory judgment, with appropriate provisions for a completion of the litigation, plaintiff entered a judgment final in form, directing the unqualified retransfer of the stock and the recovery of full costs as taxed. A motion to correct the form of the judgment was denied. Upon appeals from both the judgment and the order, the Appellate Division affirmed by a divided court, without prejudice, however, to any rights which appellants may have to an accounting from defendant company.”

While the equities, if any, which the individual defendants may have are, for the most part, in form against the defendant corporation, they are so in form only. The corporation was used merely as an instrumentality in aid of what, both in form and in fact, was an agreement between the individual parties. The stock in question is upon some terms to be returned to the plaintiff. She will then be the owner of the entire capital stock outstanding. Under such circumstances, the corporation may be disregarded. Since it has been determined that the individual defendants are trustees, ex maleficio, they are hardly in a position to bring an action for an accounting, as we understand the Appellate Division to suggest. (Cf. Stoffela v. Nugent, supra.) As the case now stands, the question of conflicting equities is undetermined and the defendants are left with what at best is a dubious remedy.

The judgment of the Appellate Division should be modified so as to modify the judgment entered on the report of the referee, by mating it interlocutory in form; by striting out the provisions directing an unqualified retransfer of the stock and awarding costs; by directing an accounting to be had between the parties; and by providing for a delivery of the stock in question upon such terms as may be fixed by the final judgment; and as so modified affirmed, with costs to the appellants in this court and in the Appellate Division.

Pound, Ch. J., Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not voting.

Judgment accordingly.


text:
    Samuel Gysin, Appellant, v. Anna Gysin, Respondent.
    (Argued January 18, 1934;
    decided February 27, 1934.)

      H. Andrew Schlusberg for appellant.
    A final judgment of divorce may not be set aside after the two-year limitation provided by section 528 of the Civil Practice Act except for fraud. (Furman v. Furman, 153 N. Y. 309; Kahn v. Kahn, 126 Misc. Rep. 44; Cary v. Cary, 144 App. Div. 846.) The defendant to prevail must prove that there was fraud in the very means by which the judgment was procured. (Hunt v. Hunt, 72 N. Y. 217; Ross v.Wood, 70 N. Y. 8; Fuhrmann v. Fanroth, 254 N. Y. 479; Crouse v. McVickar, 207 N. Y. 213; United States v. Throckmorton, 98 U. S. 61; Ward v. Town of Southfield, 102 N. Y. 287.) No fraud of any kind was perpetrated upon the defendant by the plaintiff. (Maguire v. Maguire, 75 App. Div. 534; Redding v. Redding, 60 Him, 586.)

      Gideon G. W. Green for respondent.
    The Supreme Court has power independent of statute to modify, vacate and set aside its judgments. (Clark v. Scovill, 198 N. Y. 279; Weston v. Citizens’ Nat. Bank, 88 App. Div. 330; Rothschild v. Haviland, 172 App. Div. 562; Warren v. Union Bank of Rochester, 157 N. Y. 259; Mack v. Hines, 112 Misc. Rep. 381.) The defendant presented facts showing a reasonable excuse for her failure to appear and defend and facts showing that she has a meritorious defense. (Gude v. Noblett, 112 Misc. Rep. 219.)
   O’Brien, J.

In October, 1928, an interlocutory decree of divorce was entered by default in favor of plaintiff against defendant, and the judgment roll was filed. In January, 1929, that decree by its terms became final. On motion of defendant dated. September 22, 1932, for an order setting aside the final judgment on the ground that it had been fraudulently obtained, the Special Term on November 12, 1932, vacated it, gave defendant another opportunity to answer the complaint and set the case for trial during the January, 1933, term. The certified question requires an answer whether, on the facts presented, the Special Term had power and authority to grant its order of November 12, 1932.

Section 528 of the Civil Practice Act provides: “A motion to set aside a final judgment, for error in fact not arising upon the trial, shall not be heard, except as herein specified, after the expiration of two years since the filing of the judgment roll.” This section is derived from sections 1290 and 1291 of the Code of Civil Procedure, and cases of fraud are not within its provisions. (Furman v. Furman, 153 N. Y. 309.) If defendant has tendered any evidence from which fraud may be inferred in matters not arising on the trial, the disposition of her motion lay within the discretion of the Special Term. Fraud, if existing, could not have been practiced on the trial, for there was no trial. Defendant suffered default. Is there any evidence of fraud by which she ,was induced to forego the service of an answer in the action?

Error of fact and error of law committed by defendant, there may have been. She admits that in October, 1928, she was served with the summons and complaint in this action but she alleges that, being foreign born, she did not then know the meaning of the words divorce ” or “ decree of divorce ” and did not understand the language or significance of the complaint. She had then resided in this country for thirty years. She showed the papers to the chief of police of Gloversville who, as she states, told her that her husband was crazy, that the matter amounted to nothing and that she need pay no attention to it. She makes no pretense that the advice was given in bad faith and alleges no collusion between her husband and the chief of police. Without evidence that she consulted with any of her children, all born in this country and familiar with its language and customs, or with friends or with an attorney, she allowed judgment to be taken against her by default. No fraud of any description can be perceived in the transaction and in the absence of fraud there is no power in the court, after the expiration of four years, to act in contravention of the plain prohibition embraced within section 528 of the Civil Practice Act.

The order of the Appellate Division and that of the Special Term should be reversed, the motion denied, without costs to either party, and the question certified answered in the negative.

Pound, Ch. J., Crane, Lehman, Hubbs and Crouch, JJ., concur; Kellogg, J., not voting.

Ordered accordingly.


author: Per Curiam.

text:
    Rose Villani et al., Respondents, v. The National City Bank of New York, Appellant.
    (Argued January 22, 1934;
    decided February 27, 1934.)

      David S. Konheim and William Lurie for appellant.
    Any transactions between the plaintiff and the teller occurred off the premises of the bank; the teller had no authority to act for the bank off its premises; any moneys that were turned over to the teller by the plaintiff were turned over to him as the agent of the plaintiff, and inasmuch as the moneys never reached the bank, the loss must be sustained by the plaintiff and not by the defendant. (Fidelity & Deposit Co. of Maryland v. Colby, 148 App. Div. 363; 210 N. Y. 584.)

      Ira H. Ruben for respondents.
    The teller never acted for the plaintiff in any capacity at any time but was the duly accredited receiving and paying teller of the bank. (Buchanan v. Belsey, 65 App. Div. 58; Bagley v. Smith, 10 N. Y. 489; Priebe v. Kellogg Bridge Co., 77 N. Y. 597; Hoffman v. Æna Fire Ins. Co., 19 Abb. Pr. 325; 32 N. Y. 405; Continental Nat. Bank v. Trademan’s Nat. Bank, 173 N. Y. 272; Tapley v. N. Y. Dock Ry. Co., 199 App. Div. 664; 234 N. Y. 570; Morehouse v. Yeager, 71 N. Y. 594.)
   Per Curiam.

This is an action brought by plaintiffs to recover a deposit alleged to have been made in the Williamsburg branch of the Bank of America National Association, which bank was later absorbed by merger with the defendant National City Bank of New York.

Certain funds were delivered by the plaintiff Rose Villani to one Lupis, a teller in the bank. The funds were not received by the bank but were fraudulently appropriated by Lupis. Plaintiffs contend that the funds were delivered to Lupis at the bank upon his representation that the bank would pay ten per cent interest on the deposit if left with the bank for one year. The defendant contends that the whole transaction took place outside the bank and was a personal transaction between Lupis and the plaintiff Rose, not binding on the bank.

At the close of the main charge, defendant’s counsel requested the court to submit that question to the jury. The request was refused and the court stated that there was no evidence in the record that any transaction took place outside of the bank. Defendant’s counsel duly excepted. The statement and refusal to charge constituted reversible error. If there was testimony that the transactions took place outside of the bank and the money was appropriated by Lupis, the defendant was entitled to have that question submitted to the jury. The record contains evidence which would have justified the jury in finding that the transactions or part of them took place outside the bank. (Fidelity & Deposit Co v. Colby, 148 App. Div. 363; affd., 210 N. Y. 584.)

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

Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and .Crouch, JJ., concur; Kellogg, J., not voting.

Judgments reversed, etc.


text:
    In the Matter of Edward F. Cohen et al., Respondents against Dennis F. Mahar et al., Constituting the, Board of Assessors of the City of Schenectady, Appellants.
    (Argued October 6, 1933;
    decided November 21, 1933.)

      Mathias P. Poersch, Corporation Counsel (McDonald King of counsel), for appellants.

      Arthur S. Golden for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Willis, Winston C. Owens and Herman Cunningham, Appellants.
    (Argued October 9, 1933;
    decided November 21, 1933.)

      George C. Norton, Abraham L. Lazarus and Edward S. Brogan for Joseph Willis, appellant.

      Samuel J. Siegel, Frederick E. Goldsmith and Samuel Segal for Winston C. Owens, appellant.

      Max Bollt, Francis L. Valente and William P. Schoem for Herman Cunningham, appellant.

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

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


text:
    Irma Jones, Respondent, v. Town of Pompey, Appellant.
    (Argued October 16, 1933;
    decided November 21, 1933.)

      George B. Fear on and James K. Kennedy for appellant.

      Clifford H. Searl and Charles 0. Maxwell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    E. H. Rollins & Sons, Respondent, v. National Surety Company, Appellant.
    (Argued October 16, 1933;
    decided November 21, 1933.)

      Stewart Maurice and Edward McLoughlin for appellant. Caruthers Ewing for respondent.

      Emory R. Buckner, Samuel S. Isseks and George E. Johnson, amici curise.

   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Kocak et al., Respondents, v. Metropolitan Life Insurance Company, Appellant.
    (Argued October 16, 1933;
    decided November 21, 1933.)

      Israel T. Deyo and Charles W. Turner for appellant.

      A. E. Gold for respondents.'
   Order affirmed, with costs. First question certified answered in the negative. Second question certified answered in the affirmative. No opinion.

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


text:
    Austin Herzell, Appellant, v. A. Tyler Smith, Respondent.
    (Submitted October 16, 1933;
    decided November 21, 1933.)

      George I. Swetlow and Cleland R. Neal for appellant.

      Almet R. Latson, Jr., for respondent.
   Judgment of the Appellate Division and that of the Trial Term reversed, and new trial granted, with costs to abide the event, on the ground that the court’s direction of a verdict for the defendant was improper and that a question of fact for the jury was presented. No opinion.

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


text:
    Max Burnofsky, Appellant, v. Dudley Harde et al., Copartners Comprising the Firm of Harde & Sharp, et al., Respondents.
    (Argued October 16, 1933;
    decided November 21, 1933.)

      Lewis Nadel for appellant.

      Walter B. Hall, Richard B. Hand and George W. Phillips, Jr., for Dudley Harde et al., copartners, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    May V. Saunders, Appellant, v. The City of New York, Respondent.
    (Submitted October 17, 1933;
    decided November 21, 1933.)

      Sigmund Goldstein and Benjamin Rothenberg for appellant.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Hilly, Vine H. Smith and Charles C. Marrin of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    N. A. N. A., Inc., Appellant, v. Lake and Danenhower, Inc., Respondent.
    (Argued October 17, 1933;
    decided November 21, 1933.)

      Charles E. Kelley and Christian S. Lorentzen for appellant.

      John S. Chapman, Jr., for respondent.
   Judgment affirmed, with costs; no opinion. (See 263 N. Y. 669.)

Concur; Pound, Ch. J., Crane, O’Brien, Hubbs and JJ. Lehman and JJ.


text:
    Charles C. James, Respondent, v. Alderton Dock Yards, Limited, Appellant.
    (Argued October 17, 1933;
    decided November 21, 1933.)

      Clarence K. McGuire and Walter T. Neville for appellant.

      Russell H. Robbins, Paul Austin Crouch and Joseph F. Mann for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William Segman et al., Copartners, under the Firm Name of Segman & Abrahams, Respondents, v. United States Merchants and Shippers Insurance Company, Appellant.
    (Argued October 17, 1933;
    decided November 21, 1933.)

      Paul D. Compton, W. Harry Stromenger and Wayne D. Bird for appellant.

      H. H. Nordlinger, Harold Riegelman and David B. Lefkowitz for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gerald P. Coogan, Appellant, v. St. Bernard’s Church, Saranac Lake, Respondent.
    (Submitted October 18, 1933;
    decided November 21, 1933.)

      John T. DeGraff, Rollin B. Sanford and S. D. Matthews for appellant.

      William J. Herron, Jr:, and George J. Moore for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Empire Trust Company et al., as Trustees under the Will of Hugh O. Northcote, Deceased, Respondents, v. Mary Northcote et al., Respondents, and Dudley S. Northcote et al., as Executors of and Trustees under the Will of Hugh H. S. Northcote, Deceased, et al., Appellants.
    (Argued October 18, 1933;
    decided November 21, 1933.)

      Langdon P. Marvin, Richard S. Emmet and Thomas B. Perdón for appellants.

      William G. Murphy and T. Fergus Redmond for plaintiffs-respondents.

      Charles H. Strong, guardian ad litem for Mary North-cote, defendant-respondent.
   Judgment affirmed, with costs to all parties appearing by separate attorneys and filing separate briefs payable out of the fund. No opinion.

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


text:
    Lewis R. Schwartz, Inc., Respondent, v. Estate of Adolph Brussel, Inc., Appellant.
    (Argued October 18, 1933;
    decided November 21, 1933.)

      Alexander Pfeiffer for appellant.

      Mortimer S. Gordon, Jacob Gordon and Milton W. Levy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of the Board of Transportation of the City of New York to Acquire Title to Real Property along Houston Street between Sixth Avenue (Extension) and Elizabeth Street, in the Borough of Manhattan. Congress Restaurant, Inc., Appellant; Nathan Garten et al., Respondents.
    ' (Submitted October 18, 1933;
    decided November 21, 1933.)

      Charles A. Winter for appellant.

      Alexander Pfeiffer, George Schenker and Nathan L. Goldstein for Nathan Garten, respondent.

      Arthur J. W. Hilly, Corporation Counsel (Edwin J. Talley and Alfred D. Jahr of counsel), for The City of New York, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of William MacGready, Deceased. Mary E. MacGready et al., as General Guardians of Muriel MacGready et al., Appellants; Louise MacGready, Respondent.
    (Argued October 18, 1933;
    decided November 21, 1933.)

      Earl J. Garey, Eugene L. Garey, Edward K. Kennedy and William Heifer for appellants.

      Arthur T. O’Leary and John L. McMaster for respondent.
   Order affirmed, with costs to respondent payable out of the estate; no opinion.

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


text:
    Luise Squire, Respondent, v. F. W. Woolworth Company, Appellant.
    (Argued October 19, 1933;
    decided November 21, 1933.)

      Martin A. Schenck, Joseph S. Auerbach and Edward Cornell for appellant.

      Sidney J. Feltenstein, Jerome A. Jacobs and Albert C. Silverman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Elizabeth G. Pierson, Respondent, v. Thomas M. Lynch et al., as State Tax Commissioners of the State of New York, Appellants.
    (Argued October 19, 1933;
    decided November 21, 1933.)

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig and Henry Epstein of counsel), for appellants. Charles W. Pierson for respondent.

      Seth T. Cole for Commissioner of Corporations and Taxation of the Commonwealth of Massachusetts, amicus curise.

   Order affirmed, with costs; no opinion.

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


text:
    Kenneth H. MacGregor, Respondent, v. Frank Regitano et al., Appellants. Alton B. Thompson, Respondent, v. Frank Regitano et al., Appellants.
    (Argued October 19, 1933;
    decided November 21, 1933.)

      Joseph B. Murphy and Phillip T. Young for Frank Regitano et al., appellants.

      Charles E. Spencer for Harry Kroon, appellant.

      Jesse E. Kingsley for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Paul Kaufman, Respondent, v. Theresa S. Koldin, Appellant.
    (Submitted October 19, 1933;
    decided November 21, 1933.)

      George B. Davenport for appellant.

      Louis P. Goldberg and Frank Monaco for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Eli Sobel, Appellant.
    (Argued October 23, 1933;
    decided November 21, 1933.)

      D. Francis Searle for appellant.

      Thomas Brown Rudd, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Ben Weiss, Appellant.
    (Argued October 23, 1933;
    decided November 21, 1933.)

      Harry Tabershaw and Theodore N. Tarlau for appellant.

      Thomas C. T. Crain, District Attorney (Joshua Egelson of counsel), for respondent.
   Judgment reversed and information dismissed on the ground that there is no evidence of present intent to defraud when the check was given. No opinion.

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


text:
    Amy Musgrave, Respondent, v. Russell Williams et al., Defendants, and Henry J. Williams, Appellant.
    (Argued October 23, 1933;
    decided November 21, 1933.)

      Irving I. Goldsmith, Monroe Collenburg and Adolph F. Bruenner for appellant.

      Alton W. Teale and Morton Lexow for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Susquehanna Silk Mills et al., Appellants, v. Emilio Rebora et al., as Trustees for Navigazione Generale Italiana et al., Respondents.
    (Argued October 24, 1933;
    decided November 21, 1933.)

      James W. Ryan for appellants.

      Homer L. Loomis for respondents.
   Judgments reversed and motion to dismiss complaint denied, with costs in all courts and ten dollars costs of motion. Defendants to have thirty days to serve answers. The complaint states a cause of action for an accounting. No opinion.

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


text:
    Matthew Tandy, Respondent, v. The Prudential Insurance Company of America, Appellant.
    (Argued October 24, 1933;
    decided November 21, 1933.)

      Ralph Earl Prime, Jr., and A. J. Prime for appellant.

      Samuel S. Pines and Leo E. Falkin for respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    Helen B. Bean, as Administratrix of the Estate of Harold J. Bean, Deceased, Respondent, v. James D. Keahon, Inc., Defendant, and the Town of Orangetown et al., Appellants.
    (Argued October 24, 1933;
    decided November 21, 1933.)

      Irving G. Kennedy for Town of Orangetown, appellant.

      Bernard G. Barton for Harry L. Phillips, appellant.

      Alton W. Tedie and Morton Lexow for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Herman Darm et al., Respondents, v. Morris Kletzkin et al., Appellants.
    (Submitted October 16, 1933;
    decided November 21, 1933.)

      Frederick Mellor, John S. Bennett and J. A. Keller for appellants.

      Benjamin Jaffe and Mervyn Wolff for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    City Bank Farmers Trust Company, Appellant, v. Slowmach Realty Corporation et al., Defendants, and The Hoagland Corporation, Respondent.
    (Argued October 24, 1933;
    decided November 21, 1933.)

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

      Clark H. Hebner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Minnie Meyer, as Executrix of Alfred A. Meyer, Deceased, Appellant, v. Malcolm W. Heron, Defendant, and Augustino Iannone, Respondent.
    (Argued October 24, 1933;
    decided November 21, 1933.)

      Thomas A. Shaw for appellant.

      William E. Lyons and Barnett Cohen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Valentine Wohlfron, Respondent, v. Brooklyn Edison Company, Inc., Appellant.
    (Argued October 24, 1933;
    decided November 21, 1933.)

      John D. Monroe for appellant. .

      Stephen Callaghan and Emanuel Sustick for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nellie T. McAvoy, as Executrix of Francis S. McAvoy, Deceased, Respondent, v. Sidney C. Schramme, Appellant, Impleaded with Another.
    (Argued October 25, 1933;
    decided November 21, 1933.)

      Stewart Maurice, Louis L. Archer and Eton S. Hobbs for appellant.

      Charles L. Craig for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Victor M. Marin, as Ancillary Administrator of the Estate of Juan-Roman G. Tuduri, Deceased, Appellant, v. Francisca Reyes, Inc., Respondent.
    (Argued October 25, 1933;
    decided November 21, 1933.)

      Odin Gustafson, Joseph J. Shapiro and Sol Kaplan for appellant.

      Samuel Gottlieb and Cornelius B. Chapman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Solomon Albert et al., Respondents, v. Globe and Rutgers Fire Insurance Company et al., Appellants.
    (Argued October 26, 1933;
    decided November 21, 1933.)

      Leo Levy, Joseph J. Mack and Ruth I. Wilson for appellants.

      David Goldstein and Thomas G. Frost for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gertrude Morin et al., Respondents, v. Star Plumbing Co., Inc., et al., Appellants.
    (Submitted October 26, 1933;
    decided November 21, 1933.)

      Frederick Mellor for appellants.

      Emanuel Hayt and Julius Rosenthal for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Schulte Leasing Corporation, Respondent, v. L. & C. Mayers Co., Incorporated, et al., Appellants.
    (Argued October 26,1933;
    decided November 21, 1933.)

      Yorke Allen and Leopold K. Simon for appellants.

      Jerome Michael, Milton Handler and Jerome Eisner for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Terner Bros., Inc., Respondent, v. Glickstein & Terner, Inc., Appellant.
    (Submitted October 26, 1933;
    decided November 21, 1933.)

      Irwin Isaacs and Martin E. Raphael for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Mensch, as Administrator of the Estate of Thomas R. Mensch, Deceased, Respondent, v. No. 121 Canal Street Company, Inc., Appellant.
    (Submitted October 26, 1933;
    decided November 21, 1933.)

      Frederick Mellor for appellant.

      Benjamin Antin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Municipal Service Real Estate Company, Inc., et al., Respondents, v. D. B. & M. Holding Corporation et al., Appellants.
    (Argued October 26, 1933;
    decided November 21, 1933.)

      Henry F. Cochrane and Walter J. Vreeland for appellants.

      Horace B. Lamb and George M. Billings for Municipal Service Real Estate Company, Inc., respondent.

      John J. Bennett, Jr., Attorney-General (Warren H. Gilman, Henry Epstein and Hugh Reilly of counsel), for The People of the State of New York, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Eli Wttkin, Respondent, v. Charles D. Beckwith, Inc., et al., Appellants.
    (Argued October 27, 1933;
    decided November 21, 1933.)

      Walter G. Evans for appellants.

      Moses Feltenstein and Sidney J. Feltenstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Montgomery Acceptance Corporation, Respondent, v. Anna Coon, Appellant.
    (Submitted October 27, 1933;
    decided November 21, 1933.)

      Harry W. Williams for appellant.

      Harold A. Lerman and Herbert Champagne for respondent.
   Judgment of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division, upon the ground that replevy by the sheriff with delivery to the plaintiff during the pendency of an action to recover a chattel constitutes a retaking within the meaning and intent of section 76 of the Personal Property Law. No opinion. (See 263 N. Y. 608.)

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


text:
    George M. Smalley, Respondent, v. Charles B. Benedict, Appellant.
    (Argued October 27, 1933;
    decided November 21, 1933.)

      Byron A, Johnson for appellant.

      Charles B. Bechtold and Frank A. Pfalzer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Romeo Santo, Respondent, against Symington Machine Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted November 20, 1933;
    decided November 22, 1933.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that the order is affirmed “ with costs to the claimant and the State Industrial Board.” (See 262 N. Y. 660; 263 N. Y. 663.)


text:
    In the Matter of the Claim of Marcus Brennan, Respondent, against Mack International Motor Truck Corporation et al., Appellants. State Industrial Board, Respondent.
    (Submitted November 20, 1933;
    decided November 22, 1933.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that the order is affirmed “ with costs to the claimant and the State Industrial Board.” (See 262 N. Y. 660; 263 N. Y. 663.)


text:
    Jacob Thoma, Respondent, v. The City of New York, Appellant.
    (Submitted November 20, 1933;
    decided November 22, 1933.)

      Isidore La-pan for motion.

      Arthur J. W. Hilly, Corporation Counsel (.Arthur H. Kerns of counsel), opposed.
   Motion denied, without costs.


text:
    The People of the State of New York, Appellant, v. Harry Harrison, Respondent.
    (Argued November 20, 1933;
    decided November 22, 1933.)

      William F. X. Ceoghan, District Attorney (Henry J. Walsh of counsel), opposed.
   Motion denied.


text:
    The Bay Ridge Dock Co., Inc., et al., Appellants, v. United Dry Docks, Incorporated, Respondent.
    (Submitted November 20, 1933;
    decided November 28, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 262 N. Y. 687.)


text:
    Sol Taub et al., Appellants, v. The New York Board of Fire Underwriters, Respondent.
    (Submitted November 20, 1933;
    decided November 28, 1933.)

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


text:
    Utica Gas and Electric Company, Appellant, v. C. Lester Merry et al., as Trustees of the Village of Frankfort, et al., Respondents.
    (Submitted November 27, 1933;
    decided November 28, 1933.)

      Charles Dicker-man Williams for motion.

      J. Theodore Cross opposed.
   Motion denied, without costs.


text:
    The People of the State of New York, Respondent, v. Sam Gonskak, Appellant.
    (Submitted November 27, 1933;
    decided November 28, 1933.)

      Thomas C. T. Crain, District Attorney (John C. McDermott of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of E. A. Mixer et al., Respondents, against Fred Petrel et al., Appellants, Impleaded with Others.
    (Submitted November 27, 1933;
    decided November 28, 1933.)

      Charles Dickerman Williams for motion.

      S. W. Brennan opposed.
   Motion denied, without costs.


text:
    Henry B. Closson et al., Respondents, v. Seaboard Sand and Gravel Corporation, Appellant.
    (Submitted November 20, 1933;
    decided November 28, 1933.)

      Benjamin Edmund Messier and Theodore E. Richards for motion.
    No one opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not a final order.


text:
    The People of the State of New York ex rel. Dexter Blagden, Appellant, v. Thomas M. Lynch et al., as Tax Commissioners of the State of New York, Respondents.
    (Argued November 20, 1933;
    decided December 5, 1933.)

      Roland L. Redmond for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig and Henry Epstein of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Kellogg, O’Brien, Hubbs and Crouch, JJ.; Lehman, J., dissents on the ground that the profits of the sale of the stock exchange seat constituted no profits of any business and the intangible personal property had no business situs in New York at the time of the assessment, even assuming that the State of New York would have power to tax intangible personal property which has a business situs within the State.


text:
    The People of the State of New York ex rel. Harry P. Sackett, Appellant, v. Thomas M. Lynch et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Argued November 20, 1933;
    decided December 5, 1933.)

      William F. Unger, Irving K. Rubin and Jerome A. Weiss for appellant.

      John J. Bennett, Jr., Attorney-General (Joseph M. Mesnig and Henry Epstein of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of The State Bank of Canastota, Respondent. George B. Russell, Appellant.
    (Argued November 20, 1933;
    decided December 5,1933.)

      George B. Russell, in person, for appellant.

      R. R. Colli for respondent.

      Arthur Ofner, Warren C. Fielding, Leo C. Fennelly and Clarence I. Blau for Carl J. Austrian, amicus curice.

   Order affirmed, with, costs; no opinion.

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


text:
    Lockport Enterprises, Inc., Appellant and Respondent, v. Lock City Theatres, Inc., et al., Respondents and Appellants.
    (Argued November 20, 1933;
    decided December 5, 1933.)

      Jules C. Randal and Frank G. Raichle for plaintiff, appellant and respondent.

      Warner F. Thompson for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

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


text:
    Umberto Politano, Respondent, v. Aaron L. Jacoby, Defendant, and James A. McQuade, Appellant.
    (Argued November 20, 1933;
    decided December 5, 1933.)

      Edward L. Kelly, Reginald S. Hardy and Abram Raff for appellant.

      Charles Rothenberg for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Accounting of Thomas W. Lamont et al., as Executors of Edgar Mills, Deceased, Appellants. William J. O’Shea, Jr., Special Guardian for Ian M. Brackenbury et al., Respondent.
    (Argued November 20, 1933;
    decided December 5, 1933.)

      Henry A. Stickney and William H. Thitchener for appellants.

      Harrison Tweed and Thomas A. Ryan, amici curice. William J. O’Shea, Jr., in person, and Edward D. Burns for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Andrew H. Green, Deceased. Julia E. Green et al., Appellants; William O. Green et al., as Surviving Trustees under the Will of Andrew H. Green, Deceased, et al., Respondents.
    (Argued November 20, 1933;
    decided December 5, 1933.)

      Conrad Saxe Keyes for appellants.

      Stanley D. Brown for William 0. Green et • al., as surviving trustees, etc., respondents.

      C. Francis Qaskill for Sarah E. Puffer, as executrix of Timothy R. Green, respondent.
   Order affirmed, with costs to the respondents payable out of the estate. No opinion.

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


text:
    In the Matter of the Estate of Sarah E. White, Deceased. Gertrude T. Bartlett, Appellant; Mary M. Kasson, as Administratrix of the Estate of John K. Thorne, Deceased, et al., Respondents.
    (Argued November 21, 1933;
    decided December 5, 1933.)

      Edward H. Wilson for appellant.

      G. G. W. Green for respondents.
   Order affirmed, with costs payable out of the estate to all parties filing briefs. No opinion.

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


text:
    In the Matter of The Andes Co-operative Dairy Company, Respondent, against Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, Appellant. In the Matter of Addison B. Liddle, on Behalf of Himself and Others, Respondent, against Charles H. Baldwin, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    (Argued November 21, 1933;
    decided December 5, 1933.)

      Henry 8. Manley for appellant.

      Ransom H. Gillett and Arthur F. Curtis for respondents.
   Order affirmed, with costs, and question certified answered in the affirmative. No opinion.

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


text:
    In the Matter of the Claim of John D. Campbell, Respondent, against Craine, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued November 21, 1933;
    decided December 5, 1933.)

      Harold J. Hinman and Dickinson S. Talley for appellants.

      John J. Bennett, Jr., Attorney-General {John R. O’Hanlon and Henry Epstein of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Thomas Lowry, against Kearns Engineering, Inc., et al., Respondents. State Industrial Board, Appellant.
    (Submitted November 21, 1933;
    decided December 5, 1933.)

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

      Jeremiah F. Connor and John H. Scully for. Massachusetts Bonding and Insurance Company, respondent.
   Order affirmed, with costs against the State Industrial Board. No opinion.

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


text:
    In the Matter of the Claim of John Boscarino, Respondent, against Miller Cabinet Company, Appellant. State Industrial Board, Respondent.
    (Submitted November 21, 1933;
    decided December 5, 1933.)

      Charles J. O’Brien, Eugene Raines and Arthur Sutherland, Jr., for appellant.

      John J. Bennett, Jr., Attorney-General (John R. O’Hanlon of counsel), for State Industrial Board, respondent.
   Order affirmed, with costs; no opinion. (See 263 N. Y. 608.)

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


text:
    James G. Tremaine, Appellant, v. William P. Haines, Respondent.
    (Argued November 21, 1933;
    decided December 5, 1933.)

      David S. Jackson for appellant.

      Parton Swift for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sarah M. Troy, as Administratrix of the Estate of James Troy, Deceased, Respondent, v. Robert A. Maddocks, Appellant, Impleaded with Another.
    (Submitted November 27, 1933;
    decided December 5, 1933.)

      Philip S. Rivlin for motion.

      Thomas J. O’ Neill and Archie E. Latto opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that no judgment has been entered determining the action.


text:
    The People of the State of New York, Respondent, v. Salvatore Trombino, Appellant.
    (Submitted November 27, 1933;
    decided December 5, 1933.)
   Motion for reargument denied. (See 262 N. Y. 689.)


text:
    Armin Bencoe, Appellant, v. Robert E. McDonnell et al., Copartners, under the Firm Name of McDonnell & Company, Respondents.
    (Submitted December 4, 1933;
    decided December 5, 1933.)

      William F. Unger for motion.
    No one opposed.
   Motion granted and appeal dismissed with costs and ten dollars costs of motion. (See 261 N. Y. 639, 694.)


text:
    Isidore Turk et al., Appellants, v. Malverne Estates, Inc., Respondents.
    (Submitted December 4, 1933;
    decided December 5, 1933.)

      Sydney Morris for motion.

      David S. Romanov opposed.
   Motion granted and appeal dismissed with costs and ten dollars costs of motion.


text:
    Frank H. Twyeffort et al., Copartners under the Firm Name of Twyeffort & Du Bois, Appellants, v. Unexcelled Manufacturing Company, Inc., Respondent.
    (Submitted December 4, 1933;
    decided December 5, 1933.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 6.)


text:
    The Schenectady Savings Bank, Respondent, v. Milton A. Wertheim et al., Defendants, and Elsie S. Wellman, Appellant.
    (Argued November 22, 1933; decided
    December 12, 1933.)

      W. W. Wemple, Jr., for appellant.

      Edwin E. Miller for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William T. Brophy, Appellant, v. Export Steamship Corporation, Respondent, Impleaded with Others.
    (Argued November 23, 1933;
    decided December 12, 1933.)

      Mark F. Hughes and Harold H. Corbin for appellant.

      Edgar R. Kraetzer for respondent.
   Judgments reversed and new trial granted, with costs to abide the event, on the ground that the appellant’s proof presented an issue of fact as to whether, in all the circumstances of the case and under the most favorable inferences to be drawn therefrom, the respondent failed in its duty to exercise reasonable care to protect the appellant from injury. No opinion.

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


text:
    Lightolier Company, Respondent, v. Del Mar Club Holding Co., Inc., Appellant.
    (Argued November 23, 1933;
    decided December 12, 1933.)

      Charles H. Bellows and Benjamin J. Goldman for appellant.

      Louis Rosenberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dubrow Pure Food, Inc., Respondent, v. Arthur Glazel, as President of Waiters Local Union No. 2, et al., Appellants.
    (Submitted November 23, 1933;
    decided December 12, 1933.)

      George Rosling and E. Ivan Rubenstein for appellants.

      Henry Pearlman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mayflower Apartments, Inc., Respondent, v. Paul V. Sheehan, Appellant.
    (Argued November 24, 1933;
    decided December 12, 1933.)

      Peter A. Schultz and Paul V. Sheehan for appellant. Claude V. Kister and Benjamin David Reisman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Morris Levinson et al., Respondents, v. Bernard Shapiro, Appellant.
    (Submitted November 24, 1933;
    decided December 12, 1933.)

      Herman C. Pollack for appellant.

      Isidor Weis for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Elimination of the Grade Crossing at Cherry, Bassett, Plum and Green Streets, and Fourth Avenue, in the City of Albany. The Delaware and Hudson Railroad Corporation, Respondent. City of Albany, Appellant; Public Service Commission, Respondent.
    (Submitted November 24, 1933;
    decided December 12, 1933.)

      George A. Reilly, Corporation Counsel, for appellant. Charles G. Blakeslee and Sherman C. Ward for Public Service Commission, respondent.

      Joseph Rosch and Alfred D. Kelly for The Delaware and Hudson Railroad Corporation, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Martin Loonan, Appellant.
    (Argued November 27, 1933;
    decided December 12, 1933.)

      William T. Harris and George W. Wickersham for appellant.

      Thomas C. T. Crain, District Attorney (John C. McDermott of counsel), for respondent.
   Judgment reversed and new trial ordered on the authority of People v. Downs (236 N. Y. 306). No opinion.

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